New Defense Production Act Presidential Determinations Authorize Department Of Energy Action On Energy Infrastructure

On April 20, 2026, President Trump issued five Presidential Determinations authorizing the Department of Energy (“DOE”) to deploy Defense Production Act (“DPA”) Title III incentives—including loans, loan guarantees, purchase commitments and cost-sharing arrangements—to support domestic energy production, infrastructure and related supply chains. Each of the five Presidential Determinations finds that the domestic energy industry cannot reasonably be expected to meet national defense needs in a timely manner without federal action and waives the statutory prerequisites set forth in Section 303(a)(1) through (a)(6) of the DPA encouraging and enabling the Secretary of Energy to provide incentives to industry on an expedited basis. The Determinations cover five sectors of the domestic energy industry:

• Coal Supply Chains and Baseload Power Generation Capacity (PD 2026-08)
• Development, Manufacturing and Deployment of Large-Scale Energy and Energy-Related Infrastructure (PD 2026-09)
• Grid Infrastructure, Equipment and Supply Chain Capacity (PD 2026-10)
• Petroleum Production, Refining and Logistics Capacity (PD 2026-11)
• Natural Gas Transmission, Processing, Storage and Liquefied Natural Gas Capacity (PD 2026-12)

The Presidential Determinations reference Executive Order (“EO”) 14156 (Declaring a National Energy Emergency), issued under the National Emergencies Act, which governs presidential emergency declarations. EO 14156 establishes the national energy emergency that serves as the basis for the April 20 Presidential Determinations. The Section 303 findings and waivers authorizing Title III action, however, are made in the Determinations themselves.

Background on Title III of the Defense Production Act

The DPA (50 U.S.C. § 4501 et seq.) grants the President broad authority to mobilize the domestic industrial base in support of national defense. Section 303 of the DPA (50 U.S.C. § 4533) authorizes the use of federal financial incentives to stimulate private domestic industry deemed critical to national defense. Presidential administrations have invoked the DPA to support a variety of industries, from medical supply production during the COVID‑19 pandemic to support for clean energy manufacturing.

Title III of the DPA authorizes the federal government to provide financial incentives to businesses—including loans, loan guarantees, direct purchases, purchase commitments and cost‑sharing arrangements—to expand, modernize, or sustain domestic productive capacity for materials, technologies and supply chains essential to the national defense.

Section 303(a)(1)–(a)(6) Waivers

Section 303(a)(1)–(a)(6) of the DPA conditions the use of Section 303 incentives on a series of procedural and substantive requirements—such as a written Presidential Determination for each action, congressional notification and waiting periods, and findings regarding cost‑effectiveness and foreign reliance. Section 303(a)(7) permits the President to waive those prerequisites upon a determination that action is necessary to avert an industrial resource or critical technology item shortfall that would severely impair national defense capability. In each of the April 20 Presidential Determinations, the President invoked this pre‑existing authority and expressly waived “the requirements of section 303(a)(1)–(a)(6)” for the covered sectors, eliminating those statutory preconditions for DOE’s use of Title III incentives. By invoking that waiver in each of the April 20 Determinations, the President has cleared the procedural runway for Secretary of Energy Chris Wright to move directly to deploy Title III incentives—loans, loan guarantees, purchase commitments, direct purchases and cost-sharing arrangements—to support projects across the five covered sectors, including by identifying priority projects, conducting market research, issuing solicitations and entering into Title III transactions on an accelerated timeline.

While the Presidential Determinations give Secretary Wright authority to provide incentives to businesses in the covered sectors, they do not appropriate new funding or guarantee funding. The waiver of Sections 303(a)(1)–(a)(6) eliminates certain DPA-specific prerequisites that would otherwise apply to individual Title III transactions, including the need for award‑specific statutory findings, related market or cost analyses and Section 303‑based congressional notification and waiting‑period requirements. The waiver, however, does not eliminate separate notice, oversight, or approval requirements that may arise under other statutes, appropriations provisions, or program‑specific authorities.

Implications for the Domestic Energy Industry

The April 20 Determinations expand the scope, speed and potential impact of DPA Title III activity in the domestic energy, grid and industrial infrastructure sectors. Companies operating across these markets should consider the following practical implications:

• New Opportunities for Federal Financial Assistance. We expect DOE will use funding available under its loan programs and the Infrastructure Investment and Jobs Act to implement the Presidential Determinations. The result would be a continued shift towards funding Trump Administration energy priorities as reflected in the Presidential Determinations. While DOE could use its authorities to make purchase commitments or direct purchases, it is more likely to make loans and loan guarantees and enter into grants and cooperative agreements. DOE also may seek an equity stake in projects it supports, which raise additional legal questions. In any event, we expect DOE will move quickly once it identifies projects to provide financial support.
• DOE engagement will accelerate. DOE is expected to engage in additional market research to identify priority technologies and bottlenecks and determine which types of projects are best suited for DPA support. Businesses should consider engaging with DOE proactively to discuss current domestic capacity, expansion plans, lead-time constraints, and financing gaps and prepare to respond to notices of funding opportunity, requests for information (“RFIs”) and requests for proposals (“RFPs”).
• Speed will create compliance and oversight risk. Title III support typically brings reporting, audit, and performance commitments; companies should align legal and compliance teams early to avoid delays when solicitations open.
• Deal structure will shape risk allocation. The transaction vehicle DOE uses—whether loan agreements, grants and cooperative agreements, FAR-based contracts and other transaction agreements (“OTAs”)—may impact key terms on cost sharing, IP and data rights, termination, audit exposure and other compliance obligations. Companies should define preferred structures and negotiating positions early, rather than waiting for draft agreements.
• Capital structure and ownership considerations will matter. Companies receiving Title III support will make representations regarding domestic capacity, costs, milestones, and use of funds. Companies should also anticipate closer scrutiny of foreign ownership, joint ventures, and key suppliers in light of the DPA’s focus on reducing foreign‑dependence risks. Inaccurate or unsupported statements can create legal risk under federal fraud statutes. Companies should approach DPA‑funded programs with the same internal review and control discipline applied to traditional government contracts.
• Permitting and public‑interest scrutiny will not disappear. While DPA support may help address certain regulatory or financing delays, it can also draw additional attention to environmental, labor, and public‑interest considerations, particularly for large or controversial infrastructure projects.
• The DPA’s near‑term expiration adds uncertainty. Core DPA authorities are currently authorized only through September 30, 2026, and Congress has not yet approved a reauthorization. Although certain DPA provisions—such as liability protections—are exempt from the sunset, most operational authorities would lapse absent reauthorization. A lapse would constrain the government’s ability to launch new Title III funding actions. Companies planning investments based on DPA support should take this timing risk into account.
• Operational readiness will be critical. As DPA activity continues to extend into traditional energy and infrastructure markets, companies should consider whether their order management, production scheduling, and supplier-management systems are positioned to support compliance.
• DPA priorities are not permanent. Presidential Determinations can be rescinded or revised by future administrations, as recent reversals of prior Determinations demonstrate. The breadth of recent waiver actions may also attract congressional or legal scrutiny, including potential challenges to specific awards or program structures. Companies and investors relying on DPA-based support should therefore weigh the political and legal durability of these actions when making long-term capital and supply chain decisions.