This explainer is part of GCC’s efforts to help state officials and stakeholders understand how recent federal actions may affect state policies and programs related to clean energy, climate change, and climate adaptation. Feedback regarding this analysis or additional information to be added, clarified, or updated, can be sent to climate@georgetown.edu, ATTN: Melissa Birchard.^{See footnote 1}   View GCC's other Understanding Recent Federal Actions explainers here.

The Defense Production Act of 1950: History, Structure, Present Day Application

In recent months, the Trump administration has taken actions under the Defense Production Act (DPA) to increase the production of fossil fuels and fossil fuel-based electricity. This primer provides background on the origins and historical use of the DPA, the administration’s recent application of the statute in novel contexts, and legal questions regarding the scope of asserted authorities. 

The Defense Production Act (DPA) of 1950 grants the president certain powers to influence domestic industry in the interests of national defense, including by requiring or incentivizing industry to prioritize government or private contracts or expand the production of specific products, while waiving antitrust concerns.^{See footnote 2}  Under the DPA, as amended by Congress over time, presidents have exercised these authorities to advance national priorities including U.S. military readiness as well as emergency preparedness, response and recovery. Recent examples include responses to a variety of natural disasters and to the COVID-19 pandemic.^{See footnote 3} 

Purpose and Evolution: Why did Congress enact the DPA and how has the law changed? 

In 1950, Congress enacted the DPA as a response to inflationary pressures and supply constraints at the outbreak of the Korean War.^{See footnote 4}  The initial legislative intent was to confer on the president powers to promote the national defense by enabling the timely pursuit of national security and foreign policy objectives while preventing undue strain on wages, prices, or the production and distribution of materials for civilian use.^{See footnote 5}  The legislation was modelled on the War Powers Acts of 1941 and 1942, which gave the executive branch special authority to regulate industry during World War II. In its original form, the DPA consisted of seven separate titles, granting the president broad authority to direct private industry, regulate wages and prices, ration goods, and resolve labor disputes, in support of war efforts. 

Over time, Congress modified the DPA in response to developments and let some parts of the law expire. The DPA includes a sunset provision that requires Congress to periodically reauthorize the law, which has occurred more than fifty times since 1950.^{See footnote 6}  In 1953, after the end of the Korean War, Congress allowed Titles II, IV, V, and VI to expire.^{See footnote 7}  Today only Titles I, III, and VII remain, each of which are described below. Congress has also made changes that expand the scope of the DPA. For example, in 1980, Congress responded to the oil crisis of the 1970s by amending the DPA’s definition of “national defense” to include “energy production” and to designate energy as a “strategic and critical material.”^{See footnote 8}  Congress most recently reauthorized the DPA in 2025,^{See footnote 9}  and without affirmative action to extend and/or amend it, the law would lapse on September 30, 2026.^{See footnote 10} 

Structure: What authorities does the DPA grant the president?

The president’s authorities under the three active titles of the DPA are as follows.

• Title I: Priorities and Allocations allows the president to require private parties to accept and prioritize contracts, or to allocate materials and services, to promote the national defense. Contract prioritization authority allows the US government to direct private parties to prioritize contracts for the sale of goods or services either to the US government or to designated third parties. Materials allocation authority allows the government to direct private parties to allocate scarce materials to national defense needs. Title I also specifically authorizes the president to prioritize contracts or allocate materials to maximize domestic energy supplies.^{See footnote 11} 
• Title III: Expansion of Productive Capacity and Supply allows the president to incentivize expansion of the production and supply of critical materials and goods, including by providing and guaranteeing loans, making purchases and purchase commitments, and procuring and installing equipment for use in private industrial facilities.^{See footnote 12}  
• Title VII: General Provisions allows the president to, among other things, make voluntary agreements with private industry to coordinate the production of critical and strategic goods.^{See footnote 13}  

Key Limitations: What constraints does the statute place on executive authority?

In general, the exercise of DPA authorities requires a close connection to national defense. Title I requires actions to be "necessary or appropriate to promote the national defense,” Title III requires actions to be “essential for the national defense," and Title VII requires actions to “help provide for the national defense.”^{See footnote 14}  In addition, most provisions require the executive branch to show that action under the DPA is the best option to meet the national defense needs.^{See footnote 15}  However, as described above, the statute gives the president broad latitude to determine what is necessary or essential for national defense.^{See footnote 16} 

Congress retains oversight powers through DPA provisions related to spending. Under Title III, the total amount of loans and purchases made cannot exceed the level of funding appropriated by Congress, primarily through the Defense Production Act Fund.^{See footnote 17}  In addition, loans or purchases under Title III that exceed $50 million typically require the president to notify Congress, and may require special congressional authorization, although the president can waive these requirements during periods of national emergency or upon a presidential determination that the action is needed to avoid a shortfall that would “severely impair national defense capability.”^{See footnote 18} 

Historical Uses: How has the executive branch exercised DPA authority in the past?

Historically, the Department of Defense, renamed by the Trump administration as the Department of War, has been the primary agency to exercise authorities under Titles I and III. The Department uses Title I authorities to prioritize an estimated 300,000 orders annually for critical materials and military equipment, and frequently uses Title III powers to mitigate shortfalls in domestic defense industries, such as expanding production capacity for rare earth elements, which are essential components of certain military technologies.^{See footnote 19} 

Presidential administrations have also invoked the DPA to address a broad range of national emergencies related to energy, public health, and climate change. Some notable uses of DPA authorities include:

• In 2001, in response to the California energy crisis, the Clinton and Bush administrations used Title I to order natural gas suppliers to continue selling to heavily indebted state electric utilities.^{See footnote 20}  
• In 2020, during the COVID-19 pandemic, the Trump administration used both Title I and Title III authorities to prioritize orders and expand production capacity for personal protective equipment and medical supplies.^{See footnote 21}  During this time, the administration also used Title I to order meat production facilities to remain in operation despite state stay-at-home orders.^{See footnote 22} 
• In 2022, the Biden administration invoked Title III to accelerate domestic production capacity of certain clean energy technologies, including heat pumps, to reduce reliance on Russian oil and gas following Russia’s invasion of Ukraine and to reduce climate instability.^{See footnote 23} 

Current Use: How has the Trump administration used the DPA to date?

In spring 2026, the Trump administration took initial steps to exercise its powers under first Title I and then Title III of the DPA with regard to energy production and infrastructure. The administration asserts that the United States faces an energy emergency characterized by insufficient reliable electricity, dependence on imported energy resources and equipment, and vulnerabilities to foreign adversaries. It contends that state policies restricting domestic energy production have increased reliance on foreign energy supplies, creating risks to military readiness and national security. 

On March 13, 2026, the Department of Energy (DOE) issued an order under Title I directing the Sable Offshore Company to resume oil production and transportation along the company’s Santa Ynez pipeline in Santa Barbara, California, despite the company not yet meeting the requirements for restart as set out in a 2020 federal consent decree and enforced by an active court injunction.^{See footnote 24}Under that consent decree, the restart of the pipeline was contingent on Sable submitting to the court proof of compliance, including state permit approvals, confirmation of adequate repairs to infrastructure, and permission from California’s Office of the State Fire Marshal.^{See footnote 25}  In press statements, the administration argued that California policies left the region and U.S. military forces dependent on foreign oil, disregarding the federal consent decree and related safety concerns.^{See footnote 26}  

Subsequently, on April 20, 2026, the White House issued a set of five determinations under Title III of the DPA. The determinations direct DOE to take actions to expand (1) petroleum supply chain development,^{See footnote 27} (2) coal supply chain development and baseload power generation capacity,^{See footnote 28} (3) domestic natural gas and liquified natural gas (LNG) supply chain development and LNG export capacity,^{See footnote 29}  (4) large-scale energy and energy-related infrastructure supply chain development,^{See footnote 30}  and (5) large scale grid infrastructure and associated upstream supply chain development and deployment.^{See footnote 31}  Each determination references defense objectives such as reducing the reliance of allied countries on fossil fuels from adversaries, advancing AI deployment, increasing electric reliability at military installations, and reducing U.S. dependence on foreign imported grid infrastructure and energy products.^{See footnote 32}  

On June 4, 2026, DOE announced that it will provide up to $425 million in DPA Title III funds to modernize 12 coal-fired power plants located in Wisconsin, Arizona, North Dakota, Kentucky, North Carolina, Oklahoma, Indiana, Arkansas, Tennessee, and West Virginia, along with up to $75 million for a new coal export terminal to be sited in Oakland, California.^{See footnote 33}  Five of the coal fleet projects include upgrades to extend the lifespans of the facilities, including two already slated for retirement in 2026 and 2028.^{See footnote 34}  While additional Title III actions are anticipated, none of the April 20 Title III determinations designates a timeline for agency implementation. 

Effects on State Law and Policy: How might these actions affect state laws and regulatory processes? 

There are two primary ways the DPA has the potential to preempt or override state laws in certain cases with regard to actions under Titles I and III. First, the implementation of almost any federal law, including the DPA, can create conflicts in practice with state law, which may result in federal preemption of the state law (i.e. “conflict preemption”). Second, some statutory provisions of the DPA could have preemptive effects by authorizing federal action and protecting industry actors from liability, regardless of otherwise applicable law (i.e. “express preemption”). For example:   

Title I. Parties who act in accordance with the rules, regulations, or orders authorized in Title I are not to be held liable for “damages or penalties for any act or failure to act resulting directly or indirectly” from compliance with those directives, even if they are later found to be invalid.^{See footnote 35}  This liability shield, codified in Title VII but applying to Title I orders, is commonly applied to contract disputes, in which the party who received an order to prioritize a government contract cannot be held liable for failure to fulfill the terms of another contract in order to meet the terms of the Title I order.

Title III. Title III contains unusually broad preemptive language — “without regard to the limitations of existing law” — authorizing the President to exercise certain procurement, loan, subsidy, and industrial expansion authorities regardless of state or federal legal constraints, except for those set by the Antideficiency Act.^{See footnote 36}  

Title VII. Title VII contains a provision shielding certain coordinated private conduct from otherwise applicable antitrust restrictions, effectively displacing relevant federal and state antitrust laws. This provision establishes a limited defense to “any civil or criminal action brought under the antitrust laws (or any similar law of any State)” for conduct necessary “to develop or carry out any voluntary agreement or plan of action” that Title VII authorizes.^{See footnote 37} In plain terms, private parties are protected from antitrust lawsuits or charges when they work together under a Title VII agreement, even if that same coordination would otherwise violate federal or state antitrust law.

Emerging Views on the DPA’s Preemptive Powers: What power to preempt or override state laws is the Trump administration asserting? 

The current administration expresses an expansive view of the ability of the DPA’s Title I authorities to override state law, particularly regarding the Sable pipeline. On March 3, 2026, the Department of Justice’s Office of Legal Counsel issued a memorandum opinion to the general counsel of DOE, arguing that the president “may expressly or by conflict preempt certain state laws by issuing an order under the DPA.”^{See footnote 38} The memo argues that the president’s invocation of Title I of the DPA with respect to the Sable pipeline would both (1) preempt any California law from blocking Sable’s resumption of oil transportation and related production and (2) immunize Sable from complying with a 2020 consent decree that the Santa Ynez pipeline’s previous owner had agreed to. 

Ten days later, on March 13, 2026, the president published an Executive Order authorizing the Secretary of Energy to issue DPA orders directly.^{See footnote 39}  The same day, DOE Secretary Chris Wright issued an order under DPA Title I authority directing “Sable Offshore Corp. to restore operations of the Santa Ynez Unit and Santa Ynez Pipeline System to address supply disruption risks caused by California policies that have left the region and U.S. military forces dependent on foreign oil."^{See footnote 40}  The validity of this order has been challenged by the State of California and others, but the Sable pipeline has resumed production while litigation proceeds.^{See footnote 41} 

Although Title I provides a basis for asserting certain federal emergency powers, the Title’s lack of an express preemption clause, combined with the traditionally state-governed nature of permitting, environmental regulation, and property law, leaves significant questions about the scope of that authority.^{See footnote 42}  Litigation challenging the power of Title I orders to override state laws and regulations will likely include Major Questions Doctrine and Tenth Amendment concerns, testing whether Title I authorizes only contract and resource prioritization or allows broader displacement of state regulatory and judicial actions. 

Historically, the liability shield contained in Title VII has not been understood to prospectively invalidate or suspend conflicting state law as the administration asserts in the recent DOJ memo and the Sable order. Instead it has functioned as a defense for third parties who acted to comply with an order, most commonly in cases where a private contract was broken in order to prioritize federal needs.^{See footnote 43}  Although the federal government could make a broader conflict preemption argument, it would require a fact-specific showing that compliance with state law makes compliance with federal law impossible, or substantially obstructs congressional objectives, both of which are demanding standards courts have applied narrowly.^{See footnote 44}  

Legal Challenges to State Preemption: On what grounds is California contesting DOE’s Sable Pipeline Order?

The federal government’s efforts to support the restart of Sable’s pipeline have generated an array of litigation spanning claims such as federal administrative review,^{See footnote 45} enforcement of prior judicial decrees,^{See footnote 46}  state property rights,^{See footnote 47}  and disputes over access to pipeline infrastructure.^{See footnote 48} The principal challenge to the DOE’s asserted DPA authority, however, is proceeding in California v. Wright, which directly addresses the scope of the DPA’s preemptive effects. 

On March 31, 2026, the State of California filed a complaint for declaratory and other relief against Secretary Wright and the DOE.^{See footnote 49}  In its memorandum of opinion supporting a preliminary injunction, filed on May 1, 2026, California argued “nothing in the DPA permits a federal official to order a company to act in defiance of generally applicable state laws,” and that the Order should be set aside under the Administrative Procedure Act (APA) and deemed unconstitutional.^{See footnote 50}  Specifically, California’s memorandum asserts that (1) the Order exceeds DPA’s grant of authority, (2) DOE’s use of the Order to “conscript state land for federal use and encourage  violations of federal court orders” is contrary to the DPA and unconstitutional, (3) the Order violates the DOE’s own regulations, and (4) the Order is arbitrary and capricious.^{See footnote 51}   

As this litigation proceeds, it may address many of the unresolved questions concerning DPA’s preemptive reach, including the extent to which the DPA authorizes federal agencies to preempt or override otherwise applicable state law.