Federal Analysis
DOJ and Agencies Amend DPA Authority for Energy Operations
March 14, 2026
The Department of Justice Office of Legal Counsel issued a March 3, 2026 opinion affirming that Defense Production Act (DPA) orders can preempt conflicting state laws, including environmental and permitting requirements, to direct energy company operations critical to national defense or energy supply. Concurrently, an executive order amended delegations under the DPA, allowing the Secretary of Commerce and the Secretary of Energy to independently exercise certain authorities without requiring presidential recommendation unless the authority is exclusively vested in the President. These developments streamline federal agency authority during national energy emergencies and may accelerate energy infrastructure projects by reducing regulatory delays, though they could also prompt legal challenges regarding federal preemption and scope of authority.
- Why this matters: Procurement professionals should anticipate expedited federal actions overriding state-level environmental and permitting constraints for critical energy projects, potentially accelerating contract timelines and altering compliance requirements.
- Agencies involved in energy procurement and infrastructure development may experience increased federal oversight and authority, impacting contract structuring and risk assessments.
- Contractors should evaluate how these changes affect project approvals, regulatory compliance, and potential litigation risks tied to DPA orders.
- Organizations engaged in energy supply chain and infrastructure should consider the implications of independent agency authority on procurement decision-making and emergency response capabilities.
An agency head need only recommend action to the President under section 2(a) of Executive Order 14156 when the authority to take the recommended action is vested in the President alone and has not been delegated
— Executive Order 14156 clarification
Secretary of Commerce and the Secretary of Energy, each of whom may exercise such delegated authority independently of the other
— Executive Order 13603 amendment
Agencies
Department of Energy, Office of Management and Budget, Department of Commerce, U.S. Department of Justice Office of Legal Counsel, Executive Office of the President
Locations
Sources
- DOJ OLC Issues Opinion on DPA Order for Energy Company Operation · The National Law Review · Mar 14
- ADJUSTING CERTAIN DELEGATIONS UNDER THE DEFENSE PRODUCTION ACT · whitehouse · Mar 13