The 2026 Senate Permitting Bill

Meeting data center power demand: who pays, where projects go, and what states and communities can decide. An independent analysis of the September 30 discussion draft, centered on Michigan.

Discussion draft · September 30, 2026

Independent Analysis of the Senate Permitting Deal (40 pages)

A section-by-section reading of the 417-page Bipartisan American Affordability and Jobs Act of 2026 (BAAJA, S. 5653), checked against the bill text, with real excerpts cited by page and line. It works through a Michigan example — ITC's Oneida–Sabine Lake line and the proposed data center near Mason — and shows how the bill reaches other states.

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Video

The permitting deal, explained in 12 minutes

What the bill does to the land, the courts, the costs, and the fuel, with the actual bill text on screen, our maps of the regional grid and the Oneida–Sabine Lake routes, and the Michigan and Texas comparison.

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417 pages

Discussion text released September 30 by Sens. Capito, Whitehouse, Lee, and Heinrich

230 kV

New threshold for federal backstop siting, with no prior federal corridor required

150 days

To challenge specified federal decisions, against a six-year general default

20 MW

Data center threshold for the new cost rule, for loads that connect after enactment

Executive Summary

On September 30, 2026, Senators Capito, Whitehouse, Lee, and Heinrich released a 417-page discussion draft, the Bipartisan American Affordability and Jobs Act of 2026, often called BAAJA. It was introduced the same day as S. 5653. It would change how the federal government approves power lines, pipelines, and power plants. It is a proposal, not current law: the sponsors seek a Senate vote after the November 3 election, and no vote date is confirmed.

This is a national bill, and most of it applies in every state, including Texas. The exception is the new federal siting and planning sections, which expressly exclude Texas's main grid (ERCOT). We focus on Michigan because that's where we work, and we use two local projects as worked examples. The report takes the bill in four stops: where the lines go, what courts can change, who pays for the upgrades, and whether faster approvals mean cleaner power.

The bottom line

The bill makes it faster to build more, not cleaner or more efficient. It expands federal power to approve big power lines and take land for them, narrows what courts can do when an agency breaks the law, leaves data center costs to the utility's own estimates, and sets no limit on emissions. Near Lansing, the pattern is already visible: the regional plan approved ITC's new 345 kV line first, and a hyperscale data center site search followed within about two miles of its proposed routes. The bill speeds up that cycle.

Principal Findings

Finding 1

Federal regulators could approve big power lines over a state's delay, and the builder could take land for them.

FERC could permit qualifying lines of at least 230 kV that carry power in interstate commerce, without a prior Department of Energy corridor designation. A line does not have to cross a state border to qualify. For lines of at least 345 kV, federal and state review could start together, and a state withholding approval for more than a year opens the federal route. Condemnation under a federal permit would follow Federal Rule of Civil Procedure 71.1 instead of state practice. FERC must “take into account landowner input,” but nothing requires it to accept a requested route change.

Finding 2

Less time to sue, and a win may not stop construction.

Challenges to specified decisions under NEPA, historic preservation law, certain Clean Water Act permits, and Endangered Species Act biological opinions would have to be filed within 150 days, on issues raised in a detailed comment. When a court finds a NEPA violation, the only remedy is a remand “without vacatur or issuance of an injunction,” so work can continue while the agency fixes its decision. Title IV makes issued permits costly for any later administration to revisit, for a pipeline or gas plant as much as a wind farm.

Finding 3

New data centers would pay the added costs — as the utility estimates them.

Data centers drawing at least 20 MW that connect after enactment would pay the incremental costs they cause, “based on costs estimated by the electric utility” and approved by FERC or a state. The section adds no public disclosure or contested hearing requirement. Service arrangements approved before enactment stay in effect.

Finding 4

Faster approval, no emissions limit.

The words “greenhouse” and “emissions” do not appear in the 417 pages. A qualifying behind-the-meter “generator” — including a data center's own gas turbines or diesel sets — could gain access to wholesale markets. States could require a data center to bring new generation, of any fuel. The bill makes it faster to build more, not cleaner.

Finding 5

In Michigan, the line came first. The data center followed.

CMS Energy told investors that each gigawatt of new large load is a $2 billion to $5 billion capital opportunity, and utilities earn a regulated return on approved capital. ITC's parent says ITC is managing about 8 gigawatts of new load and steering it to sites that need fewer upgrades. MISO approved ITC's Oneida–Sabine Lake 345 kV line in December 2024, with its cost spread across the MISO region. ITC showed route options in December 2025; two months later, a developer told the City of Mason it was evaluating sites for a hyperscale data center. The site since identified is more than 400 acres of farmland, about two miles from the closest proposed route. Consumers Energy already plans 1.4 gigawatts of new gas plants.

Finding 6

It's not just Michigan.

Maryland's Office of People's Counsel told FERC that PJM's rules assign Maryland customers about $2 billion of $22 billion in recent regional projects it says serve data centers. PJM's independent market monitor attributes $6.3 billion, 38%, of the latest capacity auction's charges to data centers. Wisconsin's commission told FERC that large-load costs can shift to other customers even when the load arrives as promised. In Texas, ERCOT is expressly excluded from the new federal siting and planning sections, so the 765 kV fights stay with state regulators.

What to Watch as the Bill Moves

1
Public cost estimates: whether the utility's estimate of a data center's added costs must be disclosed and tested in a contested hearing before customers are protected from it.
2
Landowner rights: whether “take into account landowner input” gains a real standard, and which state condemnation protections survive a federal Rule 71.1 taking.
3
Court remedies: whether a court that finds an agency broke the law regains the power to stop work, instead of only sending the decision back.

Download the full report (PDF, 40 pages)

Research series

Permitting, power lines, and data centers

7 related analyses from Bommarito Consulting.

Reliance and disclaimer

This briefing analyzes a discussion draft released September 30, 2026; the text may change before a vote. Provision summaries come from a section-by-section reading of the official discussion text, and section numbers and quotations should be checked against the official PDF before use in any filing. Statements by utilities, transmission companies, grid operators, and developers are reported as their claims. Nothing here constitutes legal advice.

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