BAAJA's Fine Print

What it does

The sentence struck is, in today's law: "The head of the agency may not delegate the responsibility to document a decision pursuant to this section" (54 U.S.C. 306114). Under current rules, an agency can go ahead over historic-preservation objections only after the Advisory Council on Historic Preservation comments, and the agency head must take those comments into account, make the final decision, and document it without delegating (36 CFR 800.7(c)(4)). The bill's new fallback path lets the agency head "or an agency official delegated by the head of the Federal agency" make that final decision (395:4–7). The bill also adds an earlier off-ramp: the review is complete if, "in the sole discretion of the Federal official," "other considerations outweigh the consideration of historic preservation" (393:4–12), after consulting the state and tribal preservation officers and others (392:11–15).

What the sponsors' summary says

The summary does not mention the strike. It describes the off-ramp as a determination that "the agency and the consulting parties would be required to come to"; the text gives it to "the Federal official," in that official's "sole discretion." The summary does say that if there is still no agreement after a supplemental period, the agency may request the Advisory Council's comments and then "make a determination on its own." It does not mention that this final decision may be delegated.

Why it matters

"Conforming amendment" usually signals cleanup. The strike does line 54 U.S.C. 306114 up with the bill's new fallback, which allows a delegate (395:4–7), but that delegation is itself a substantive change. Together with the earlier off-ramp, it changes who must sign off when a project goes ahead over historic-preservation objections, and how early.

What it does

The bill adds EPA's definition of "waters of the United States" to the actions reviewable only in a federal court of appeals, on petition filed within 120 days (Clean Water Act 509(b)(1)). An existing clause the bill does not change, 509(b)(2), says such actions "shall not be subject to judicial review in any civil or criminal proceeding for enforcement."

What the sponsors' summary says

The summary says the section provides "original jurisdiction in the circuit courts for challenges to the definition." It does not mention the effect on enforcement cases.

Why it matters

Likely result: for definitions issued after enactment, a landowner who did not sue within 120 days could not argue in an enforcement case that the definition itself is invalid. They could still argue that their land falls outside it. Today these challenges go to district courts, generally under the six-year default for suits against the government, which can run from when a challenger is injured.

What it does

Sec. 1401's protection covers approvals "in effect on or after September 16, 2026," two weeks before the bill was introduced. The House-passed SPEED Act drew its time line differently: that bill would not have applied to any agency action that an agency had, since January 20, 2025, moved to remand voluntarily or otherwise reopened, reconsidered, or begun correcting (H.R. 4776, sec. 4).

What the sponsors' summary says

The summary describes the protection but does not mention the date or explain it.

Why it matters

The date decides which approvals are locked in and which recent agency actions fall outside the protection. An approval rescinded before that date is probably not "in effect"; whether one suspended on that date counts is an open question.

What it does

Paragraph (5) of the federal backstop is the requirement that the line carry at least 230 kV (189:17–23). So a smaller line selected in a regional plan can qualify for a FERC permit, and the federal eminent domain that comes with it, once a state-failure trigger is met (188:17–189:5) and FERC makes the remaining permit findings.

What the sponsors' summary says

The summary says the rule covers projects selected "from an interregional plan" and deems FPA 216(b)(2)–(7) satisfied. The text also covers regional plans and stops at (6); there is no paragraph (7). The summary's citation covers the voltage floor, but it never says in words that smaller lines can qualify.

Why it matters

This provision can extend federal eminent domain to lines below 230 kV, and the official summary describes it more narrowly than the text.

What it does

Sec. 1401 never defines "project" and never mentions energy. On its face, its protection, and the 25 to 50 percent awards when an agency loses (164:3–15), reach any federal approval for a project with a non-federal sponsor or holder, including housing, mining, transportation and nuclear approvals. It also covers findings that no permit is needed. No court has tested that reach.

What the sponsors' summary says

The summary describes "a project that has a valid permit," without limiting it to energy.

Why it matters

Public discussion treats Title IV as an energy provision. The language traces to the certainty provision in the House-passed SPEED Act, so it is more likely carried over than slipped in.

What it does

The deleted subsection sets compensation for these takings at "fair market value (including applicable severance damages)." Federal-court condemnations follow the federal rule of procedure (192:10–14). The Constitution still requires just compensation, including damage to the land a landowner keeps.

What the sponsors' summary says

The summary does not name the deletion, but its note on the eminent-domain changes gives the reasoning: "Most federal courts in which these proceedings have arisen have applied state law to the substantive determination of just compensation. For example, some state laws make landowners eligible for payments above fair market value." A 2024 Senate committee report described striking the same subsection as "unnecessary and potentially inconsistent with the judicial power of the federal courts."

Why it matters

It looks like a quiet cut, but the record does not support lower awards across the board. Which law sets the amount is the open part. On November 9 the Supreme Court is scheduled to hear argument in a case raising the parallel question under the Natural Gas Act.

What it does

Subsection (e) is "Rules of construction." It says the section neither expands nor diminishes federal or state jurisdiction and recognizes state authority over retail service (239:6–23). It lists no limitations on the cost floor. One could argue its jurisdiction clause is the intended "limitation"; subsections (c) (state rate authority) and (f) (applicability) are other candidates.

Why it matters

This is the core sentence of the data-center cost protection. A cross-reference to nothing invites argument about what "limitations" were meant.

What it does

30 U.S.C. 1001 is the Geothermal Steam Act, cited correctly in the same sentence. The Mineral Leasing Act begins at 30 U.S.C. 181, which the same section cites correctly a few lines earlier (349:12–13; 350:19–20).

Why it matters

The intent is clear, but this is the sentence that removes NEPA requirements for the listed oil and gas activities that need a drilling permit. A wrong citation in an operative exemption is an avoidable litigation hook.

What it does

The sentence's only verb is "shall spend": the listed officials, including state and tribal preservation officers, "shall spend not less than 50 percent of the workweek ... to remedy the failure" (399:2–5). Before that list sits a stray phrase, "the consultation requirement for purposes of this subsection," that is not attached to anything. The parallel NEPA sanction has no such phrase (53:13–54:8). Either words are missing after it, or it is a scrambled "for purposes of the consultation requirement under this subsection."

Why it matters

If words are missing, they may have said what happens to the consultation requirement itself when a deadline is missed. If the phrase is only misplaced, the requirement stays in place and the workweek rule is the only consequence. The text does not settle which.

What it does

If the bill is enacted between January 2 and March 31 (January 3 in a leap year), the deadline has already passed on the day it becomes law. For example, enactment on January 2, 2027 gives a deadline of January 1, 2027. Enactment on April 1, 2027 gives January 2, 2028.

Why it matters

A minor provision, but an impossible deadline signals a date formula that was not checked.

What it does

The disparate-treatment damages section measures a "pattern" against three different time frames: the five most recent calendar years (167:16–20), the rate "prior to the commencement of the alleged pattern" (175:22–176:6), and data for the year of suit and the preceding five years (177:13–18). The delay figures the government must produce count applications pending more than 60 days past "the applicable deadline described in subsection (c)" (178:5–10), the one-year deadline for permits that need no environmental impact statement or assessment (172:21–173:8). Read literally, that leaves out delays against NEPA deadlines, which govern larger projects, though a court could read "applicable deadline" more broadly. There is also a typo, "application Federal law," for "applicable" (174:22–23).

Why it matters

This is the section that can award 50 to 100 percent of a project's expected construction cost (179:20–24). Inconsistent yardsticks invite years of litigation over which one applies.

What it does

Sec. 1402 bars suits for 180 or 280 days after enactment (181:16–182:6). Sec. 2201 separately gives 150 days to challenge the grant or denial of an authorization for a covered energy, mineral or wildfire project that needs an environmental document (283:9–284:4; 284:9–21), with no transition rule. If a sponsor's 1402 claim over a denial also counts as a 2201 challenge, an early denial could pass the 150-day bar before 1402 allows filing.

Why it matters

A sponsor could lose a claim the bill appears to create.

What it does

Because the definition includes federal entities, an agency seeking another agency's approval could, on the text, use the sponsor tools against it: control over schedule extensions, CEQ dispute resolution, and deadline suits.

Why it matters

Whether a court would hear one agency suing another, and whether CEQ's process covers such a dispute, are open questions, but nothing in the text rules either out.