DLA Piper’s Artificial Intelligence (AI) and Data Analytics legal and policy team previously issued a client alert analyzing the White House’s unveiling of “Winning the Race: America’s AI Action Plan” (the Action Plan) and its anticipated impact on the technology and infrastructure sectors.
This alert builds on that prior analysis by focusing on the environmental implications of the Executive Order (EO), “Accelerating Federal Permitting of Data Center Infrastructure.” Issued on the same day as the Action Plan – July 23, 2025 – the EO is consistent with Pillar II, “Build American AI Infrastructure,” with the goal to rapidly expand AI capabilities across the US.
The EO intends to streamline federal environmental review and permitting.
To support AI development and the digital transformation, the July 23, 2025 EO streamlines federal permitting and environmental review to accelerate the deployment of new data centers that constitute “Qualifying Projects.”
Qualifying Projects include “Data Center Projects” requiring “greater than 100 megawatts (MW) of new load dedicated to AI inference, training, simulation, or synthetic data generation” or the Covered Components, which are defined broadly to incorporate energy infrastructure (eg, transmission lines, natural gas pipelines or laterals, natural gas turbines, and other electrical infrastructure), semiconductors and semiconductor materials, networking equipment such as switches and routers, and data storage.
A “Qualifying Project” includes a Data Center Project or Covered Component Project that (1) commits at least $500 million in capital expenditures, (2) involves an incremental electric load of greater than 100 MW, (3) protects national security, or (4) has otherwise been designated as a Qualifying Project by the US Secretaries of Defense, Interior, Commerce, or Energy.
For such Qualifying Projects, the EO streamlines environmental review and permitting as follows:
- Establish categorical exclusions to fast-track NEPA environmental review. Under the EO, the relevant federal agencies must coordinate with the White House Council on Environmental Quality to identify existing, and establish new, categorical exclusions for projects that do not have a significant effect on the environment as defined under the National Environmental Policy Act (NEPA). Already established categorical exclusions are required to be identified by August 2, 2025 to facilitate immediate development.
- Identify Brownfield and Superfund Sites for use by Qualifying Projects. The US Environmental Protection Agency (EPA) is required to develop guidance to expedite environmental reviews for qualified reuse of such Brownfield and Superfund Sites within 180 days. Recognizing that most sites are regulated at the state level, EPA is directed to “assist” state governments and private parties to return those sites to productive use.
- Review existing nationwide permits under Section 404 of the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Appropriations Act. Section 404 permits are issued by the US Army Corps of Engineers for the placement of dredged or fill materials in US waters, and nationwide permits authorize categories across the country for activities that have minimal individual and cumulative adverse environmental effect. The US Army Corps is required to review existing nationwide permits within 180 days to determine whether activity-specific nationwide permits are needed.
- Identify federal lands availability. Under the EO, the US Department of Interior and US Department of Energy must consult with industry and the Department of Commerce to identify and authorize the use of appropriate and applicable federal sites for development. One day after the Action Plan and EO were issued, on July 24, 2025, the Department of Energy announced the selection of four sites, including the Idaho National Laboratory, Oak Ridge Reservation, Paducah Gaseous Diffusion Plant, and Savannah River Site, to invite private sector parties to develop AI partnerships.
- Utilize Section 7 of the Endangered Species Act Programmatic Analysis. The action agency is required to initiate consultation with the Secretary of Interior and Secretary of Commerce or both, with respect to construction activities that will occur over the next ten years. Under the EO, the Secretary of Interior and Secretary of Commerce must utilize programmatic consultation to maximize efficiency where permissible.
- Consider developing or modifying regulations that impact data center development. EPA is required to assist in expediting permitting on federal and nonfederal lands by identifying and potentially modifying environmental regulations under the Clean Air Act, CWA, Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Toxic Substances Control Act (TSCA) that impact permitting and data center development.
The Action Plan and EO prioritize streamlining and modernization of federal environmental permitting and review of projects within the federal ambit. However, project proponents and industry are encouraged to be aware of the robust state and local environmental laws that also regulate data center development when not on federal lands.
The Action Plan aims to streamline semiconductor manufacturing and modernize electricity generation capacity.
The Action Plan and EO specifically call for reducing or eliminating regulatory barriers to increasing US semiconductor manufacturing and electricity generation capacity, as well as modernizing electricity transmission. EPA Administrator Lee Zeldin has issued public statements that EPA plans to act on the directive from the White House by initiating upcoming rulemakings to streamline environmental permitting for restarting electric generating units to respond to grid demand or other emergencies (eg, natural disasters), construction of new electric generation capacity, and allowing for certain “preconstruction” activities to commence prior to issuance of new permits (eg, authorizing laying cement pads or foundations). As we covered in a prior client alert, “Making America the AI Capital of the World” is one of EPA Administrator Zeldin’s five top priorities guiding EPA.
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