On April 20, 2026, the White House issued five presidential determinations invoking Title III of the Defense Production Act (“DPA”) across the domestic energy sector—a significant step that unlocks a powerful set of federal financing tools for energy and infrastructure contractors, as well as the companies making up their supply chains.  Each determination declares a core energy system “essential to national defense” and authorizes the Department of Energy (“DOE”) to deploy financial incentives including direct purchases, purchase commitments, loans, and loan guarantees to develop domestic energy infrastructure and expand production capacity. 

Legal Predicate for Invoking the DPA: Executive Order 14156

Each determination builds on Executive Order 14156, Declaring a National Energy Emergency, issued by the President on January 20, 2025 under the National Emergencies Act.  The Executive Order declared a national emergency to address “an unusual and extraordinary threat” to U.S. national security:  America’s insufficient energy production and inadequate energy infrastructure. 

That emergency declaration is legally significant: it serves as the underlying predicate authorizing the President to invoke DPA Title III.  Without a valid emergency declaration, the presidential determinations issued on April 20 would lack their legal foundation. 

The DPA: Title III Incentives

The DPA confers upon the President a broad set of authorities to influence and incentivize domestic industry in the interest of national defense.  Among these authorities is Title III of the DPA (Expansion of Productive Capacity and Supply), which authorizes the President to incentivize the domestic industrial base to create, maintain, or expand capabilities essential for national defense.

Authorized incentives include loans, loan guarantees, direct purchases, and purchase commitments, subsidies, and other financial assistance directly to private businesses.  These incentives can help reduce the risks typically associated with establishing, expanding, or preserving production capabilities.  For example, when the government provides a purchase commitment, it creates a guaranteed demand signal for an industrial capability, thereby alleviating capital expenditure risks.  The same is true when the government finances and installs production equipment in privately owned facilities: the government is reducing the investment hurdle. 

The President’s authority under Title III is not self-executing.  Before invoking it, the DPA requires the President—personally, on a nondelegable basis—to make three specific findings and issue a formal determination stating that: 

• the industrial resource, material, or critical technology item is essential to the national defense;
• without Presidential action, U.S. industry cannot reasonably be expected to provide the capability for the needed industrial resource, material, or critical technology item in a timely manner; and
• purchases, purchase commitments, or other action pursuant to Title III are the most cost effective, expedient, and practical alternatives for meeting this need.

On April 20, the Administration issued five such determinations in support of energy and energy infrastructure.  

The April 20 Presidential Determinations

The presidential determinations issued on April 20, 2026 cover five domestic energy sectors: grid infrastructure, equipment, and supply chains; large scale energy and energy related infrastructure; natural gas and liquefied natural gas (“LNG”); petroleum; and coal. 

Each determination finds these domestic energy sectors to be “industrial resources, materials, or critical technology items essential to national defense”—a finding key to unleashing the DPA Title III incentives.  The determinations also make the other necessary findings (i.e., that Presidential action is necessary and that the Title III incentives are the most cost effective, expedient, and practical alternatives).

• Grid Infrastructure, Equipment, and Supply Chain: The Administration has determined that America’s “aging and constrained electric grid infrastructure poses an increasing threat to national defense.”  Further, the declaration states that domestic industry has limited capacity to design, produce, and deploy large-scale grid infrastructure and that supply chains face risks due to foreign competition, long production lead times, and an overreliance on imported equipment.  As such, the determination declares the following to be “essential” to national defense: “grid infrastructure and its associated upstream supply chains, including transformers, transmission lines and conductors, substations, high-voltage circuit breakers, power control electronics, protective relay systems, capacitor banks, electrical core steel, and related raw materials and manufacturing tools[.]”
• Large Scale Energy and Energy Related Infrastructure: The determination declares domestic capability for development, manufacturing, and deployment of large scale energy and energy related infrastructure “essential” to national defense.  The Administration cites “financing risks, regulatory delays, and market barriers” as impediments to the expansion of domestic capabilities.  Accordingly, the determination finds “development, manufacturing, and deployment of large-scale energy and energy-related infrastructure, including engineering, site acquisition and preparation, permitting, early-stage risk mitigation financing instruments, domestic manufacturing capacity, and enabling infrastructure” to be “essential” to national defense.
• Natural Gas and LNG, Petroleum, and Coal: Like the others, the last three determinations find that ensuring sufficient natural gas and LNG capacity; ensuring resilient domestic petroleum production, refining, and logistics capacity; and ensuring coal supply chains and baseload power generation capacity all to be “essential” to national defense.    

Funding and Implementation

For contractors operating in these sectors, as well as those that make up the supply chains, these presidential determinations accelerate DOE’s ability to deploy DPA Title III incentives in support of domestic energy projects.  The presidential determinations themselves do not create new programs or buckets of funding.  It is up to DOE to implement these determinations into actual programs.

Funding is the key practical question, and the answer matters for how quickly DOE can move.  The DPA Fund, established within the Treasury specifically for DPA Title III activities, provides one source—Congress has appropriated billions to it over the years.  However, the fund’s $750 million statutory carryover limit constrains the amount available at any given time, which means the DPA Fund alone is unlikely to be sufficient for large-scale energy infrastructure programs.

DOE could also use funds appropriated by the “One Big Beautiful Bill Act” (“OBBBA”) passed by Congress in July 2025.  The OBBBA restructured the DOE loan programs and created a new “Energy Dominance Financing” Program within DOE’s Loan Programs Office (now the Office of Energy Dominance Financing).  The Energy Dominance Financing Program authorizes $200 billion in lending authority through 2028 for an expanded set of energy infrastructure projects.  The Program also authorizes financing of critical mineral projects.

The OBBBA also expanded the loan authority of the U.S. Department of War’s (“DoW”) Office of Strategic Capital—an office charged with developing, integrating, and implementing capital investment strategies to shape and scale investment in critical technologies and assets.  The OBBBA authorized $100 billion in Office of Strategic Capital loan authority to increase domestic industrial capacity for critical minerals production and related projects.

Key Legal and Practical Takeaways

The presidential determinations represent a meaningful shift in the federal government’s posture toward domestic energy finance.  The funding is there and so too is DOE’s ability to deploy DPA Title III incentives.  For contractors in the covered energy sectors, the period between now and full implementation is a critical window to prepare.  Some key considerations: 

Monitor DOE Implementation and Engage Early.  The determinations under DPA Title III authorize DOE to act, but do not compel it to do so.  DOE must still design programs, issue requests for information (“RFIs”), solicitations, notices of funding opportunities (“NOFOS”), etc. and identify appropriated funds before project financing can flow.  Program development will take time.  Industry participants should monitor DOE implementation activity and engage early.  The legal instruments to be used, eligibility criteria, and project requirements will be shaped in the early design phases.  Energy contractors, equipment manufacturers, and infrastructure developers that engage proactively—through public comment processes, industry working groups, and direct agency outreach—will be better positioned to influence program design and, ultimately, to compete for awards. 

Understand the Available DPA Title III Incentive Mechanisms.  DPA Title III authorizes a range of financial incentives, including loans, loan guarantees, direct purchases, purchase commitments, subsidies, and other forms of financial assistance.  Companies should evaluate which of these incentive structures best align with their project economics and capital needs—and understand the pros / cons of accepting such assistance.   

Evaluate Multiple Funding Pathways.  Congress has appropriated substantial funds to the DPA Fund, DOE’s Office of Energy Dominance Financing, and DoW’s Office of Strategic Capital—funds which can be used for purchases, purchase commitments, loans, loan guarantees, and other DPA Title III incentives to support the domestic energy industry.  The combined availability of these funding sources means that funding, at least in theory, is not a constraint on project execution.    

Prepare for Compliance and Oversight.  Federal funding and compliance / oversight go hand in hand.  Companies that have not previously participated in federal procurement or federal financial assistance programs should begin assessing their compliance infrastructure now, rather than waiting for specific program announcements.  Companies should anticipate requirements related to domestic sourcing and Buy American, prevailing wage requirements, and restrictions on foreign ownership, control, or influence (“FOCI”).  While the presidential determinations do not themselves impose these conditions, prior DPA Title III projects administered by DoW have typically carried such requirements, and DOE programs under the OBBBA are expected to follow suit.  Commercial companies may want to weigh the benefits of setting up a separate subsidiary for federal work or creating a federal business line or segment.       

Identify Your Place in the Supply Chain—the Determinations Reach More Than “Energy” and “Infrastructure” Companies.  The five presidential determinations are deliberately broad in scope, and their reach extends well beyond traditional energy companies and large infrastructure developers.  The grid infrastructure determination, for example, expressly covers “associated upstream supply chains”—including manufacturers of transformers, transmission lines and conductors, substations, high-voltage circuit breakers, power control electronics, protective relay systems, capacitor banks, and electrical core steel, as well as producers of related raw materials and manufacturing tools.  The large-scale energy infrastructure determination encompasses engineering services, site acquisition and preparation, and enabling infrastructure.  The natural gas and LNG, petroleum, and coal determinations similarly sweep in the full production, processing, and logistics supply chains for each fuel type.  In other words, a specialty steel manufacturer, a software company providing grid control systems, an engineering firm supporting permitting, or a logistics provider serving LNG terminals may each fall within the scope of one or more determinations—and may each be eligible for DPA Title III incentives.  Companies should map their product and service offerings against these categories now, before programs are designed, so they can engage early and position themselves as eligible participants.  The breadth of coverage highlights the Administration’s goal to rebuild entire domestic supply chains, not just finance key energy projects.

Opportunities for Defense Contractors.  For defense contractors, utilities privatization contractors, and companies operating in dual-use supply chains—such as critical minerals, advanced manufacturing, and power generation—the presidential determinations create potential synergies with existing DoW-administered DPA Title III programs.  These companies should evaluate whether the new energy-focused determinations create additional avenues for federal contracting or federal financial assistance in support of existing capabilities. 

Legal Challenges are a Risk.  Finally, legal challenges to the presidential determinations and their underlying legal predicate (the national emergency declared by Executive Order 14156) are likely.  Expect scrutiny from environmental and public interest perspectives.  Companies should consider this risk when structuring agreements.     

Companies considering how these authorities may apply to their operations should begin assessing their eligibility and strategic positioning now.  Please contact the authors with questions.