On January 14, 2025, the Biden Administration issued an Executive Order on “Advancing United States Leadership in Artificial Intelligence Infrastructure” (the “EO”), with the goals of preserving U.S. economic competitiveness and access to powerful AI models, preventing U.S. dependence on foreign infrastructure, and promoting U.S. clean energy production to power the development and operation of AI.  Pursuant to these goals, the EO outlines criteria and timeframes for the construction and operation of “frontier AI infrastructure,” including data centers and clean energy resources, by private-sector entities on federal land.  The EO builds upon a series of actions on AI issued by the Biden Administration, including the October 2023 Executive Order on Safe, Secure, and Trustworthy AI and an October 2024 AI National Security Memorandum.

  1. Federal Sites for AI Data Centers & Clean Energy Facilities

The EO directs the Departments of Defense (“DOD”) and Energy (“DOE”) to each identify and lease, by the end of 2027, at least three federal sites to private-sector entities for the construction and operation of “frontier AI data centers” and “clean energy facilities” to power them (“frontier AI infrastructure”).  Additionally, the EO directs the Department of the Interior (“DOI”) to identify (1) federal sites suitable for additional private-sector clean energy facilities as components of frontier AI infrastructure, and (2) at least five “Priority Geothermal Zones” suitable for geothermal power generation.  Finally, the EO directs the DOD and DOE to publish a joint list of ten high-priority federal sites that are most conducive for nuclear power capacities that can be readily available to serve AI data centers by December 31, 2035.

The EO contains various requirements for soliciting and leasing federal sites for AI infrastructure, including:

  • Public Solicitations.  By March 31, 2025, the DOD and DOE must launch competitive, 30-day public solicitations for private-sector proposals to lease federal land for frontier AI infrastructure construction.  In addition to identifying proposed sides for AI infrastructure construction, solicitations will require applicants to submit detailed plans regarding:
    • Timelines, financing methods, and technical construction plans for the site;
    • Proposed frontier AI training work to occur on the site once operational;
    • Use of high labor and construction standards at the site; and
    • Proposed lab-security measures, including personnel and material access requirements, associated with the operation of frontier AI infrastructure.

The DOD and DOE must select winning proposals by June 30, 2025, taking into account effects on competition in the broader AI ecosystem and other selection criteria, including an applicant’s proposed financing and funding sources; plans for high-quality AI training, resource efficiency, labor standards, and commercialization of IP developed at the site; safety and security measures and capabilities; AI workforce capabilities; and prior experience with comparable construction projects.  

  • DOD/DOE Lease Framework.  The EO directs the DOD and DOE to develop, by June 30, 2025, a framework for winning applicants to apply for leases to construct, operate, and own frontier AI infrastructure on federal sites.  The framework contemplates a number of obligations and requirements for winning applicants that seek to construct or operate frontier AI infrastructure, including:
    • Begin construction of frontier AI data centers by January 1, 2026, and commence full-capacity operation of AI infrastructure by December 31, 2027;
    • Procure sufficient new clean power generation resources—i.e., geothermal, nuclear, solar, wind, hydroelectric, hydrokinetic, and marine energy—to meet the planned electricity needs of frontier AI data centers;
    • Bear responsibility for any costs incurred from construction, agencies’ environmental reviews, clean power procurement, decommissioning, and transmission infrastructure development;
    • Adhere to technical security standards and guidelines identified by the National Institute of Standards & Technology (“NIST”) and the U.S. AI Safety Institute (“U.S. AISI”) for protecting AI infrastructure and model weights on federal sites;
    • Sign memoranda of understanding with U.S. AISI to facilitate collaborative research and risk evaluations on AI models developed, acquired, modified, run, or stored at the site;
    • Report investment or financial capital information and limit the involvement of persons identified by the DOD or DOE on national security grounds;
    • Collaborate with the federal government on recurring AI model national security assessments;
    • Commit to providing the federal government with access to AI models for national security applications at current market rates; and
    • Procure an “appropriate share” of leading-edge logic semiconductors fabricated in the U.S. “to the maximum extent possible.”

For more information regarding these provisions of the EO, please reach out to Thomas Brugato (tbrugato@cov.com), Gary Guzy (gguzy@cov.com), and Jayni Hein (jhein@cov.com).

  1. Expedited Permitting for Frontier AI Infrastructure

The EO sets out the goal of issuing all permits and approvals for AI infrastructure on federal sites by the end of 2025, or as soon as possible under applicable law.  To that end, the EO directs federal permitting agencies to prioritize the processing of such permits and approvals.  In particular:

  • Streamlining NEPA Reviews.  The EO instructs the DOD, DOI, and DOE to allocate dedicated personnel for National Environmental Policy Act (“NEPA”) reviews of AI infrastructure projects.  Notably, the EO directs the DOD to undertake a “programmatic environmental review” of AI data centers and other infrastructure components to serve as a basis for any further environmental reviews by federal agencies, and directs the DOI to conduct a similar review for geothermal power plants.  The DOD must conclude its programmatic environmental review by the date of the close of the AI infrastructure solicitations discussed above. 

    In addition, the EO requires federal agencies, including the DOD, DOI, DOE, and the Department of Agriculture, to identify and apply all available categorical exclusions under NEPA to AI infrastructure on federal sites and instructs federal permitting agencies to identify new categorical exclusions to support AI infrastructure within 120 days. 
  • Streamlining Air and Water Permitting.  The EO directs the U.S. Army Corps of Engineers to prioritize permits under the Clean Water Act for AI infrastructure on federal sites, and to issue nationwide permits (“NWPs”) to facilitate AI data center construction.  Additionally, the Environmental Protection Agency (“EPA”) must engage with state and local permitting authorities regarding best practices for expediting new source reviews under the Clean Air Act within 30 days after the selection of winning applicants.

For more information regarding the permitting provisions of the EO, please reach out to Thomas Brugato (tbrugato@cov.com), Gary Guzy (gguzy@cov.com), and Jayni Hein (jhein@cov.com).

  1. Energy Grid Infrastructure for Frontier AI Data Centers

To ensure sufficient energy resources for frontier AI infrastructure on federal sites by the end of 2027, the EO establishes new requirements for electricity grid operators while directing the DOE and other agencies to take steps to construct or upgrade transmission infrastructure.  Specifically:

  • Electricity Grid Reporting Requirements.  The EO directs the DOE to establish, within 60 days, information reporting requirements for transmission providers and organizations regarding surplus interconnection services, available transmission capacities, and clean power generation capacities, and to require such information at least annually.  The DOE is also required to facilitate communications between winning applicants and owners of surplus interconnection services and clean power capacities.
  • Assessments and Upgrades to Electricity Transmission Infrastructure.  The EO instructs the DOE to take additional steps to address the electricity demands of AI infrastructure, including:
    • Initiate the use of all appropriate authorities to construct, finance, facilitate, and plan upgrades and development of transmission infrastructure on or in support of federal sites with AI infrastructure, by September 30, 2025;
    • Consider designation of areas around frontier AI infrastructure on federal sites as National Interest Electric Transmission Corridors;
    • With the DOD and Department of Commerce, consult with domestic critical grid equipment suppliers on AI infrastructure needs and current production plans, within 90 days;
    • Facilitate industry-led convenings on transformers and other critical grid components, with representatives from agencies, transmission providers, domestic suppliers, data center developers, and other private-sector organizations, within 180 days; and 
    • Execute purchases, as appropriate and on an ongoing basis, of transformers and other critical grid components to encourage domestic manufacturers to invest in additional capacity to meet AI infrastructure needs.

For more information regarding the energy provisions of the EO, please reach out to Andy Jack (ajack@cov.com), and Kevin Poloncarz (kpoloncarz@cov.com).

*              *              *

It will be up to the incoming Trump Administration to maintain or rescind the EO or its various provisions.  We are closely monitoring this EO and other federal AI developments as the U.S. transitions to a new presidential administration.  Follow our Global Policy Watch, Inside Global Tech, Inside Government Contracts, and Inside Energy & Environment blogs for ongoing updates on key AI and other technology legislative and regulatory developments.

Nicholas Xenakis

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal…

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal justice.

Nick joined the firm’s Public Policy practice after serving most recently as Chief Counsel for Senator Dianne Feinstein (C-DA) and Staff Director of the Senate Judiciary Committee’s Human Rights and the Law Subcommittee, where he was responsible for managing the subcommittee and Senator Feinstein’s Judiciary staff. He also advised the Senator on all nominations, legislation, and oversight matters before the committee.

Previously, Nick was the General Counsel for the Senate Judiciary Committee, where he managed committee staff and directed legislative and policy efforts on all issues in the Committee’s jurisdiction. He also participated in key judicial and Cabinet confirmations, including of an Attorney General and two Supreme Court Justices. Nick was also responsible for managing a broad range of committee equities in larger legislation, including appropriations, COVID-relief packages, and the National Defense Authorization Act.

Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia. There he represented indigent clients charged with misdemeanor, felony, and capital offenses in federal court throughout all stages of litigation, including trial and appeal. He also coordinated district-wide habeas litigation following the Supreme Court’s decision in Johnson v. United States (invalidating the residual clause of the Armed Career Criminal Act).

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Carol Browner

Carol M. Browner brings nearly four decades of experience advising on environmental and energy policies affecting global energy, environmental, public health, and business matters.

She provides counsel to industry leaders in the energy, transportation, and consumer product sectors on regulatory matters, environmental impact…

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She provides counsel to industry leaders in the energy, transportation, and consumer product sectors on regulatory matters, environmental impact issues, corporate sustainability approaches, and strategic partnership development to advance clean energy, ESG, and other business priorities.

Carol joins the firm after serving as Senior Counselor in the Sustainability practice of the Albright Stonebridge Group, a global strategy firm.

Carol served as Assistant to President Barack Obama and Director of the White House Office of Energy and Climate Change Policy, where she oversaw the coordination of environmental, energy, climate, transport, and related policy across the U.S. federal government. During her tenure, the White House secured the largest investment ever in clean energy and established the national car policy that included both new automobile fuel efficiency standards and first ever greenhouse gas reduction standards.

Carol is the longest serving Administrator of the Environmental Protection Agency. As Administrator, she adopted the most stringent air pollution standards in U.S. history; set the first fine particle clean air standard; and spearheaded the reauthorization of the Safe Drinking Water Act as well as the Food Quality Protection Act. Carol was known for working with both environmentalists and industry to set science-based public health protections while providing businesses important flexibilities in how to meet those standards. She worked across the agency to ensure a focus on protecting vulnerable populations and promote environmental equity.

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Photo of Kevin Poloncarz Kevin Poloncarz

Kevin Poloncarz represents a broad range of clients on policy, regulatory, litigation, commercial, and enforcement matters involving air quality, climate change, and clean energy. He co-chairs the firm’s Environmental Practice Group and Energy Industry Group.

Mr. Poloncarz is ranked by Chambers USA among…

Kevin Poloncarz represents a broad range of clients on policy, regulatory, litigation, commercial, and enforcement matters involving air quality, climate change, and clean energy. He co-chairs the firm’s Environmental Practice Group and Energy Industry Group.

Mr. Poloncarz is ranked by Chambers USA among the nation’s leading climate change attorneys and California’s leading environmental lawyers, with sources describing him as “a phenomenal” and “tremendous lawyer.” He was named an “Energy & Environmental Trailblazer” by the National Law Journal in 2017 and was inducted as a Fellow of the American College of Environmental Lawyers in 2018.

He has extensive experience with California’s Cap-and-Trade Program, Low Carbon Fuel Standard (LCFS), Renewables Portfolio Standard (RPS), and is recognized as a leading advisor on carbon markets. He also assists energy-sector clients in obtaining and defending state and federal approvals for major projects throughout California.

Mr. Poloncarz also assists clients with the development and execution of legislative and policy strategies supporting decarbonization, including carbon capture and sequestration, low-carbon fuels, advanced transportation and energy storage, and is a registered lobbyist in California and Oregon.

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Photo of Gary S. Guzy Gary S. Guzy

Gary Guzy brings thirty five years of experience in environmental law, regulation, and public policy. He provides counsel to industry leaders in the transportation, energy, technology, and consumer sectors on emerging environmental and clean energy issues. He is skilled at creating strategic partnerships…

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Mr. Guzy served as Deputy Director and General Counsel of the White House Council on Environmental Quality (CEQ). In this position, he helped develop and guide the Obama Administration’s environmental, public health, and clean energy agenda, bringing business insights to government policy and coordinating policy across government agencies. He spearheaded negotiations that achieved the Obama Administration’s agreement to double motor vehicle fuel efficiency standards and significantly cut greenhouse gas emissions with the support of automobile manufacturers, states, labor unions, environmental and consumer groups, and Congress. Mr. Guzy also led CEQ’s efforts to modernize permitting and environmental review under the National Environmental Policy Act, and counseled federal agencies on how to fulfill their NEPA obligations for dozens of high profile decisions and assisted in resolving NEPA controversies at numerous complicated sites.

Mr. Guzy served as General Counsel of the U.S. Environmental Protection Agency and Counselor to the EPA Administrator during the Clinton Administration. He was a member of the Administrator’s senior policy team, setting regulatory, legislative, and communications strategy. He led efforts to design regulatory approaches to protect children’s environmental health, develop and defend new air quality and motor vehicle standards, defend EPA from Congressional oversight investigations, and protect iconic ecosystems such as the Everglades and Yellowstone National Park. He also authored climate change opinions that were later ratified by the U.S. Supreme Court in its landmark decision finding that greenhouse gases are pollutants under federal law.

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Photo of W. Andrew Jack W. Andrew Jack

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Jayni joins the firm after serving as Senior Director for Clean Energy, Infrastructure & the National Environmental Policy Act (NEPA) at the White House Council on Environmental Quality (CEQ).

During…

Jayni F. Hein co-chairs the firm’s Carbon Management and Climate Mitigation industry group.

Jayni joins the firm after serving as Senior Director for Clean Energy, Infrastructure & the National Environmental Policy Act (NEPA) at the White House Council on Environmental Quality (CEQ).

During her tenure at CEQ, she oversaw the Biden Administration’s ambitious environmental and clean energy agenda, leading work on low carbon projects and climate disclosure, and advancing the successful implementation of the Infrastructure Investment and Jobs Act (2021) and Inflation Reduction Act (2022).

Jayni has extensive experience advising clients on NEPA, Clean Air Act, and Endangered Species Act issues, as well as energy development on public lands. As the former senior political appointee spearheading work to revise NEPA regulations and issue guidance on climate change and greenhouse gas emissions, Jayni offers clients first-hand experience with infrastructure projects that require federal and state permits and authorization. She helps clients identify new funding opportunities and successfully advance clean energy and other infrastructure projects, including onshore and offshore wind, solar, hydrogen, transmission, semiconductor, and carbon, capture, sequestration, and utilization (CCUS) projects.

In addition, leveraging her government experience, Jayni advises companies and investors on ESG compliance and strategy in light of increased scrutiny of corporate climate and net-zero commitments. She advises clients on the legal and policy issues relating to ESG and climate-related regulatory requirements, investor demands, global reporting frameworks, and strategic business opportunities.

Clients benefit from her ability to creatively troubleshoot issues, establish relationships across government, and engage policymakers, industry, non-profit organizations, and other key stakeholders in constructive conversations around climate change, environmental justice, and corporate decarbonization goals.

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