Trump Administration Issues Executive Order to Streamline Data Center Development

The EO, entitled Accelerating Federal Permitting of Data Center Infrastructure, and a related report, Winning the Race, America's AI Action Plan (the "AI Action Plan"), support "the rapid and efficient buildout" of digital infrastructure. The AI Action Plan states that "America's environmental permitting system and other regulations make it almost impossible to build [digital] infrastructure in the United States with the speed that is required." Consistent with the America First policy, the AI Action Plan emphasizes that "this infrastructure must also not be built with any adversarial technology that could undermine US AI dominance."

The EO facilitates expedited permitting for data centers and related infrastructure, energy, and manufacturing projects in numerous ways, including under the Clean Water Act ("CWA"), the Clean Air Act ("CAA"), the National Environmental Policy Act ("NEPA") (e.g., by establishing new categorical exclusions), and Fixing America's Surface Transportation Act ("FAST-41").

Specifically, the EO directs:

• the agencies to focus on "Qualifying Projects" which are defined as data center projects or related infrastructure, energy or manufacturing projects that: (i) have a commitment of $500 million or more in capital expenditures, (ii) involve 100 megawatts or more of incremental electric load, (iii) protect national security or (iv) are otherwise designated as such by the Secretary of Defense, the Secretary of Commerce, the Secretary of the Interior or the Secretary of Energy;
• the Secretary of Commerce to "launch an initiative to provide financial support" for Qualifying Projects (i.e., high-capacity AI data centers and related energy, manufacturing, and infrastructure projects). Financial support may include loans, loan guarantees, grants, tax incentives, and offtake agreements;
• relevant agencies to identify to the Council on Environmental Quality ("CEQ") any already-established NEPA categorical exclusions that could facilitate the construction of Qualifying Projects and CEQ to coordinate with relevant agencies on establishing new categorical exclusions for actions related to Qualifying Projects "that normally do not have a significant effect on the human environment." Federal financial assistance representing less than 50 percent of total project costs shall be presumed not to constitute a "major Federal action" under NEPA;
• the Environmental Protection Agency ("EPA") Administrator Lee Zeldin to: "assist in expediting permitting on Federal and non-Federal lands by developing or modifying regulations" promulgated under the CAA, CWA, the Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA"), the Toxic Substances Control Act, and other relevant applicable laws;
• EPA Administrator Zeldin to identify Brownfield Sites and Superfund Sites for use by Qualifying Projects and "develop guidance to help expedite environmental reviews for qualified reuse and assist State governments and private parties to return such Brownfield Sites and Superfund Sites to productive use as expeditiously as possible";
• the Secretary of the Army to review nationwide permits issued under Section 404 of the CWA and Section 10 of the Rivers and Harbors Appropriation Act "to determine whether an activity-specific nationwide permit is needed to facilitate the efficient permitting of activities related to Qualifying Projects";¹
• the Executive Director of the Federal Permitting Improvement Steering Council to designate Qualifying Projects as Transparency Projects under FAST-41 and "expedite the transition" of those projects from Transparency Projects to "covered projects" under the law. FAST-41, enacted in 2015, streamlines the federal environmental review and permitting process for large infrastructure projects. Semiconductor, AI / machine learning, data storage, and data management projects are already included under FAST-41. Energy projects and other component manufacturing projects that support data centers will now also be included;
• the Department of Interior ("DOI") and Department of Energy ("DOE") to "offer appropriate authorizations for [federal] sites identified by [DOI and DOE]," and have a streamlined consultation with the Department of the Interior and/or Department of Commerce under Section 7 of the Endangered Species Act for common construction activities associated with such Qualifying Projects that will occur over the next 10 years;² and
• the Department of Defense to (i) identify suitable sites on military installations for materials, products, and infrastructure that are required to build data centers or that data centers otherwise depend upon and (ii) "competitively lease available lands for Qualifying Projects to support the Department of Defense's energy, workforce, and mission needs."