The Bipartisan American Affordability and Jobs Act of 2026 (BAAJA), introduced by Senators Shelley Moore Capito (R-WV), Mike Lee (R-UT), Sheldon Whitehouse (D-RI), and Martin Heinrich (D-NM), offers an opportunity to address that imbalance. The bill would streamline federal permitting, including through targeted Endangered Species Act (ESA) reforms: shorter consultation deadlines, a clearer scientific standard, and a larger role for states.
The most important reforms target consultation. Under Section 7 of the ESA, federal agencies that fund, permit, or carry out projects must consult with the U.S. Fish and Wildlife Service or National Marine Fisheries Service to ensure projects are not likely to jeopardize listed species or damage critical habitat.
Formal consultation is supposed to conclude within 90 days, with extensions up to 150 days possible without the applicant’s consent. In practice, the process can take much longer. In West Virginia, federal officials requested formal consultation in 2022 over the endangered rusty patched bumble bee along an eight-mile stretch of the Corridor H highway. State highway officials said the process would delay the project by at least 18 months.
BAAJA would shorten formal consultation to 60 days and reduce the maximum extension to 100 days. A new deadline for court challenges would also help prevent completed reviews from being reopened years later.
Faster reviews need not mean weaker reviews. Reforms should eliminate avoidable delay, not to bypass meaningful scrutiny of a project’s effects on threatened wildlife. Shorter timelines place greater demands on agencies, and the bill would authorize $150 million annually for consultations and state participation. That additional capacity could help agencies meet deadlines rather than simply ordering them to move faster.
A second set of reforms concerns how agencies use scientific evidence. The ESA requires decisions to rely on the “best scientific and commercial data available,” but science cannot answer every question policymakers face. Sound science should be a guide for public policymaking. Even so, evidence is often incomplete, and choices under uncertainty involve judgments about acceptable risk and the consequences of being wrong.
The bill would define the standard for the first time, identifying relevant, objective information available when an agency acts, including credible data, models, and quantitative analyses. It would direct agencies to apply the standard without “presumptions or policy prescriptions” that bias results.
Still, critics argue that the provision could restrict the information agencies consider, especially when evidence is incomplete. They also warn that it could prohibit any presumption in favor of a species. Because conservation decisions inevitably involve uncertainty, agencies must retain the ability to assess risks responsibly. The legislation’s practical effect will therefore depend on whether the standard clarifies decision-making without excluding relevant evidence.
The bill’s inclusion of models and quantitative analyses partly addresses this concern, since those tools can help evaluate risks when direct observations are limited. Legal scholar Jonathan Adler argues that deciding how precautionary to be is a policy judgment, not a scientific one, and agencies should acknowledge their assumptions. Timothy Male, founder of the Environmental Policy Innovation Center, similarly reads the bill as requiring agencies to identify and justify risk-averse assumptions, not necessarily abandon them.
A third reform would give states a larger role in consultations. The intended benefit is to draw on local expertise while preserving a consistent federal baseline. BAAJA would allow qualifying states to assume federal consultation responsibilities through agreements with the Interior Department, provided they meet federal requirements and demonstrate they have the capacity to do the work. State agencies can contribute valuable knowledge of local ecosystems and wildlife-management practices.
Critics worry that states may lack sufficient staff or prioritize conservation differently, producing inconsistent outcomes. But delegation would not automatically eliminate federal oversight: participation would be voluntary and conditional, and federal ESA standards would still govern consultations.
Ultimately, BAAJA’s ESA provisions are limited in scope. They focus on process rather than deeper flaws. Lasting reform should clarify how agencies weigh economic impacts and policy judgments that science alone cannot settle. It should also address incentives that may discourage private landowners from protecting endangered species, as some analyses argues.
Still, as part of a permitting-focused package, BAAJA offers a meaningful step toward balancing wildlife protection while providing a predictable framework for infrastructure developers. Clearer timelines, a more transparent scientific standard, voluntary state participation, and added consultation capacity could make reviews more efficient without abandoning species protection. A system that combines effective protections with timely, evidence-based decisions can advance economic development and environmental protection.
