Gibson Dunn lawyers are available to assist developers preparing proposals for the competitive solicitation process or to answer questions about the Executive Order.~~On January 14, 2025, President Biden issued an executive order[1] that directed certain federal agencies—predominantly the Department of Energy (DOE), the Department of Defense (DOD), and the Department of the Interior (DOI), but also the Department of State and other agencies—to stand up processes by which non-federal entities, including private-sector companies, can apply to lease certain federal sites for the purpose of constructing and operating “AI infrastructure.”[2] Much of the Executive Order focuses on encouraging the development on federal lands of large data centers capable of developing artificial intelligence (AI) models that match or surpass the current state of the art, a type-and-location combination the order dubs “frontier AI data centers.”[3]~~The order also requires federal agencies to take additional actions meant to: (1) help the agencies understand and mitigate the impact of AI infrastructure on consumers’ electricity rates and the environment;[4] (2) identify the characteristics of transmission infrastructure near potential federal sites[5] and ensure that adequate transmission infrastructure exists at federal sites;[6] (3) facilitate the expeditious permitting of AI infrastructure projects on federal sites;[7] (4) improve the overall permitting and power procurement processes for AI infrastructure;[8] and (5) engage with other countries on accelerating the global buildout of AI infrastructure.[9] At its most practical level, the Executive Order sets an objective to achieve full permitting and approval of construction to begin for six frontier AI data centers (three on DOE sites and three on DOD sites) by the end of 2025.[10]~~This client alert focuses on the leasing program established by the Executive Order, which will be available to the private sector, and provides a high-level summary of: (1) the process by which agencies are required to select the federal sites that will be leased; (2) the information that agencies must request from prospective developers in the competitive public solicitation process; (3) the criteria by which agencies must judge proposals submitted in the competitive public solicitation process; and (4) the types of provisions that are required in the lease agreement.~~1.
Federal Site Selection~~The Executive Order requires the Secretary of the DOD and the Secretary of the DOE (the “Secretaries”) to identify by February 28, 2025, at least three sites on their respective agency’s land that may be suitable for the construction and operation of a frontier AI data center and clean energy facilities to serve such data center by the end of 2027.[11] To identify these sites, the Secretaries are directed to prioritize sites that:~~The Executive Order also requires the Secretary of the Department DOI, in consultation with other agencies, to (1) identify sites managed by the Bureau of Land Management (BLM) that can be used to construct or operate clean energy facilities that are being or may be built to support AI infrastructure, prioritizing the identification of sites that meet certain criteria listed in the Executive Order[13] and (2) designate at least five regions composed of lands or subsurface areas as “Priority Geothermal Zones” based on certain criteria listed in the Executive Order.[14] The Secretaries must also each make legal determinations that they have the authority to lease each identified site and that the site is available to lease.[15] Finally, the Secretaries must publicize the selected sites and certain characteristics of those sites by March 31, 2025.[16]~~2.
Project Solicitations~~The Executive Order requires that the Secretaries coordinate with one another to design, launch, and administer competitive public solicitations of proposals from non-federal entities seeking to lease and construct AI infrastructure on the land that the Secretaries identified.[17] In the solicitations, the Secretaries must require applicants to:~~3.
Project Selections~~When evaluating and selecting proposals, the Secretaries (in consultation with other agencies) generally[19] must consider the information detailed in the applications including, at a minimum:~~4.
Contractual Obligations~~For projects that are selected to become frontier AI data centers, the Executive Order requires the Secretaries to require lease or contract terms that accomplish the following:~~Takeaways and Timelines~~The Executive Order sets an ambitious timeline for the solicitations of large infrastructure projects, projects of a type that often take years to successfully permit and begin constructing. Nonetheless, the Executive Order is the result of bipartisan urging to protect and expand U.S. AI data center infrastructure and may represent an area where the Biden and Trump administrations find some common ground. The Executive Order addresses wide-ranging infrastructure needs for data centers, particularly in the energy sector, but leaves some critical issues unaddressed, perhaps due to the jurisdictional limitations of federal and executive powers. For example, the Executive Order addresses transmission grid interconnection issues but is silent as to coordination with owners and operators of the nation’s distribution grids, which are generally regulated at the state level. The order, as ambitious as it is, also does not clear a path for expediting securing the many non-federal permits that will likely be necessary to build transmission facilities to serve frontier AI data centers.~~The Secretary of the DOI, in consultation with the Secretaries, is required to publicize the sites they have selected for clean energy generator leases by March 31, 2025, at the latest, and the Secretaries are required to issue solicitations for frontier AI infrastructure proposals by March 31, 2025, at the latest, and close solicitations within 30 days of their issuance.[24] The Executive Order requires the DOE and DOD to announce winning proposals by June 30, 2025, with a goal of fully permitting winning proposals by the end of 2025 so construction can begin. Given the fast pace of these timelines, and assuming the incoming administration does not repeal or modify the Executive Order, entities that are interested in participating in this program may wish to closely monitor the DOE, DOD, and DOI websites for the DOI’s publication of the selected sites and the DOE’s and DOD’s issuance of solicitations of proposals.~~Additionally, given the relatively short amount of time entities will have to prepare their proposals and the amount of information that will be required in their proposals, entities may wish to consider compiling information they know will be required in their proposals based on the Executive Order as soon as the DOI announces the selected sites. Gibson Dunn attorneys are available to assist developers preparing proposals for the competitive solicitation process or to answer questions about the Executive Order. Please contact your contact attorney at Gibson Dunn or one of the Gibson Dunn attorneys that authored this article with any questions you may have regarding this Executive Order.~~[1] Executive Order on Advancing United States Leadership in Artificial Intelligence Infrastructure, The White House (Jan. 14, 2025), https://www.whitehouse.gov/briefing-room/presidential-actions/2025/01/14/executive-order-on-advancing-united-states-leadership-in-artificial-intelligence-infrastructure/ (“Executive Order”).~~[2] Id. at Sections 3(c), 4 (“The term ‘AI infrastructure’ refers collectively to AI data centers, generation and storage resources procured to deliver electrical energy to data centers, and transmission facilities developed or upgraded for the same purpose.”).~~[3] Id. at Section 3(m) (A “frontier AI data center” is defined as “an AI data center capable of being used to develop, within a reasonable time frame, an AI model with characteristics related either to performance or to the computational resources used in its development that approximately match or surpass the state of the art at the time of the AI model’s development.”).~~[4] Id. at Section 5.~~[5] Id. at Section 6.~~[6] Id. at Section 8.~~[7] Id. at Section 7.~~[8] Id. at Section 9.~~[9] Id. at Section 10.~~[10] Id. at Section 4.~~[11] Id. at Section 4(a).~~[12] Id. at Section 4(a).~~[13] Id. at Section 4(b) (specifically, the Secretary of the DOI must prioritize identification of sites used to construct or operate clean energy facilities based on the same criteria by which the Secretaries of the DOD and DOE must prioritize sites (listed above) and must also prioritize sites that: (1) contain completed, permitted, or planned clean generation projects that (i) can deliver electricity to the data centers and (ii) possess an executed interconnection agreement with a transmission provider; (2) have been allocated as available for clean-energy applications in a BLM resource management plan; and (3) have reasonable access to existing high-voltage transmission lines that have at least one gigawatt of additional capacity available or for which such capacity can be reasonably developed).~~[14] Id. at Section 4(c) (“The Secretary of the Interior shall designate those regions based on their potential for geothermal power generation resources, including hydrothermal and next-generation geothermal power and thermal storage; diversity of geological characteristics; and possession of the characteristics described in subsections (a)(i)-(x) and (b)(i)-(v) of this section.”)~~[15] Id. at Section 4(d).~~[16] Id. at Section 4(f).~~[17] Id. at Section 4(e).~~[18] Id.~~[19] Interestingly, the Executive Order also requires that the Secretaries “select at least one proposal developed and submitted jointly by a consortium of two or more small- or medium-sized organizations — as determined by those organizations’ market capitalization, revenues, or similar characteristics — provided that the Secretaries receive at least one such proposal that meets the appropriate qualifications” to the extent consistent with applicable law and the Secretaries’ assessment that the requirement promotes national defense, national security, or the public interest. Id. at Section 4(g).~~[20] Id. at Section 4(g).~~[21] Note that these costs explicitly include the “costs of work performed by agencies to complete necessary environmental reviews, any costs related to the procurement of clean power generation resources and capacity in accordance with [AI training operations described in Id. at Section 4(g)(ii)], any costs of decommissioning AI infrastructure on Federal sites, any costs of developing transmission infrastructure needed to serve a frontier AI data center on a Federal site, and the fair market value of leasing and using applicable Federal lands.” Id. at Section 4(h)(iii).~~[22] Id. at Section 4(h)(v).~~[23] Id. at Section 4(h).~~[24] Id. at Section 4(f)-(g).~~Gibson Dunn’s Data Center Task Force attorneys are available to assist clients by offering strategic advice; drafting comment letters to agencies; arranging and preparing for high-level executive branch and congressional meetings; and helping clients take advantage of potential opportunities emerging from the rapidly changing regulatory environment.~~The following Gibson Dunn lawyers prepared this update: F. Joseph Warin, William R. Hollaway, Ph.D., Tory Lauterbach, Emily Naughton, Evan D’Amico, Whitney Smith, Jess Rollinson, and Simon Moskovitz.~~Gibson Dunn’s lawyers are available to assist in addressing any questions you may have regarding these issues. For additional information about how we may assist you, please contact the Gibson Dunn lawyer with whom you usually work, any leader or member of the firm’s Artificial Intelligence, Energy Regulation & Litigation, Mergers & Acquisitions, National Security, Public Policy, Real Estate, or White Collar Defense & Investigations practice groups, or the following authors:~~William R. Hollaway, Ph.D. – Chair, Energy Regulation & Litigation Practice Group,
Washington, D.C. (+1 202.955.8592, whollaway@gibsondunn.com)~~Tory Lauterbach – Partner, Energy Regulation & Litigation Practice Group,
Washington, D.C. (+1 202.955.8519, tlauterbach@gibsondunn.com)~~Vivek Mohan – Co-Chair, Artificial Intelligence Practice Group,
Palo Alto (+1 650.849.5345, vmohan@gibsondunn.com)~~Evan M. D’Amico – Partner, Mergers & Acquisitions Practice Group,
Washington, D.C. (+1 202.887.3613, edamico@gibsondunn.com)~~Stephenie Gosnell Handler – Partner, National Security Practice Group,
Washington, D.C. (+1 202.955.8510, shandler@gibsondunn.com)~~Michael D. Bopp – Co-Chair, Public Policy Practice Group,
Washington, D.C. (+1 202.955.8256, mbopp@gibsondunn.com)~~Amanda H. Neely – Of Counsel, Public Policy Practice Group,
Washington, D.C. (+1 202.777.9566, aneely@gibsondunn.com)~~Eric M. Feuerstein – Co-Chair, Real Estate Practice Group,
New York (+1 212.351.2323, efeuerstein@gibsondunn.com)~~Emily Naughton – Partner, Real Estate Practice Group,
Washington, D.C. (+1 202.955.8509, enaughton@gibsondunn.com)~~F. Joseph Warin – Co-Chair, White Collar Defense & Investigations Practice Group,
Washington, D.C. (+1 202.887.3609, fwarin@gibsondunn.com)~~© 2025 Gibson, Dunn & Crutcher LLP. All rights reserved. For contact and other information, please visit us at www.gibsondunn.com.~~Attorney Advertising: These materials were prepared for general informational purposes only based on information available at the time of publication and are not intended as, do not constitute, and should not be relied upon as, legal advice or a legal opinion on any specific facts or circumstances. Gibson Dunn (and its affiliates, attorneys, and employees) shall not have any liability in connection with any use of these materials. The sharing of these materials does not establish an attorney-client relationship with the recipient and should not be relied upon as an alternative for advice from qualified counsel. Please note that facts and circumstances may vary, and prior results do not guarantee a similar outcome.~~Download PDF~~
Jan 15
Deal Summary
