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DOI Implements Expedited Permitting Procedures for Energy and Critical Mineral Projects

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The U.S. Department of the Interior (“DOI”) has announced “emergency” permitting procedures to accelerate energy and critical mineral projects (DOI official announcement here) under Executive Order (“EO”) 14156, Declaring a National Energy Emergency. These changes prioritize rapid approvals for energy projects that meet eligibility criteria, with unprecedented, streamlined processes under (i) the National Environmental Policy Act, (ii) Endangered Species Act, and (iii) National Historic Preservation Act.

Applicability

The DOI’s emergency procedures apply to projects meeting two criteria:

  1. Scope: Projects must involve activities to identify, lease, site, produce, transport, refine, or generate energy resources as defined in Section 8(a) of EO 14156.
    • Energy resources include:
      • Fossil fuels (crude oil, natural gas, coal).
      • Nuclear (uranium).
      • Renewables (biofuels, geothermal heat, hydropower).
      • Critical minerals designated under 30 U.S.C. § 1606(a)(3)

    • The critical minerals list, last updated in 2022, includes 50 minerals deemed vital to national security and economic stability, such as lithium, cobalt, graphite, rare earth elements, and zinc. A full list is available in the 2022 Federal Register here.

Note, however, DOI’s emergency procedures do not include projects involving minerals such as copper, gold, and potash that are not included in the 2022 statutory “critical minerals” list adopted pursuant to 30 U.S.C. § 1606(a)(3), even though the minerals were recently identified as priority minerals under President Trump’s recent Executive Order 14241, Immediate Measures to Increase American Mineral Production (discussed in our blogpost here).

  1. Documentation: Applicants must submit plans of operations, permit applications (e.g., drilling permits), or equivalent proposals.

Key Procedural Changes

The DOI’s emergency framework implements sweeping, unprecedented revisions to federal permitting processes, significantly compressing timelines:

  1. National Environmental Policy Act (“NEPA”):  The DOI has significantly compressed environmental review timelines:
    • Timelines:
      • Environmental Assessments (“EA”): Reduced from ~1 year to 14 days. No public comment is required prior to finalizing EAs.
      • Environmental Impact Statements (“EIS”): Compressed from ~2 years to 28 days, bypassing draft EIS requirements:
    • Approvals: Final decisions are restricted to high-ranking DOI officials (Secretary, Deputy Secretary, or delegates).
  1. Endangered Species Act (“ESA”): The DOI has significantly curtailed consultation requirements:
    • Section 7 Consultation: Agencies may proceed with projects after notifying the Fish and Wildlife Service (“FWS”).
    • Post-Emergency, Retroactive Consultations: Retroactive consultations with FWS are required after the emergency period ends. Formal biological opinions or concurrence letters are deferred until after the emergency period ends.
  1. National Historic Preservation Act (“NHPA”):  The DOI has significantly limited comment periods and mitigation requirements:
    • Section 106 Compliance:
      • Tribal/State Historic Preservation Officers have 7 days to comment after notification.
      • Mitigation measures are required only “to the extent prudent and feasible.”
    • Post-Emergency Requirements: Documentation of compliance is required after the emergency declaration expires.
  1. Company Commitments:
    • Applicants must submit a written affirmation to use emergency procedures.
    • Companies must pledge to mitigate environmental and historic impacts.

Potential Implications

The DOI’s emergency permitting procedures, while accelerating approvals for energy and critical mineral projects, carry significant risks. Legal challenges loom large, as courts may reject the administration’s broad “national energy emergency” justification—historically reserved for acute crises—and scrutinize the exclusion of renewables like wind and solar as arbitrary. Operationally, compressing NEPA reviews to 14–28 days risks inadequate environmental analysis, while deferred ESA consultations and NHPA compliance obligations expose projects to retroactive litigation if harms emerge post-approval. Strategically, industries face heightened vulnerability to injunctions, as truncated processes lack formal safeguards. These measures, though aligned with short-term energy dominance goals, risk regulatory instability, legal backlash, and reputational harm, underscoring the tension between expediency and durable compliance.

Summary

The DOI’s emergency procedures, enacted under Executive Order 14156, prioritize rapid permitting for energy and critical mineral projects to bolster domestic production and address national security concerns. By compressing NEPA reviews to 14–28 days and streamlining ESA/NHPA compliance, the framework aims to fast-track fossil fuel, uranium, and critical mineral ventures aligned with the statutory 2022 critical minerals list. However, these expedited processes introduce significant risks: deferred consultations and retroactive compliance obligations leave projects vulnerable to litigation.

Stakeholders must ensure strict adherence to eligibility criteria and prepare robust applications to leverage these accelerated timelines. While the framework offers opportunities, compliance risks—particularly post-emergency consultations—require careful navigation. It remains to be seen whether such sweeping changes will also expand to other priority minerals identified by the current administration.

JMBM’s Natural Resources and Mining Group will continue to monitor evolving minerals policies under the current administration.

Kerry Shapiro
Kerry Shapiro chairs the Natural Resources & Mining Practice Group at Jeffer Mangels Butler & Mitchell LLP. He has represented the mining, building materials, and other resource industries on mineral extraction and land development projects for more than 25 years. Kerry also serves as General Counsel to the California Construction and Industrial Materials Association (CalCIMA). Contact Kerry at KShapiro@jmbm.com.

Ha Chung
Ha Chung is an environmental and land use lawyer at Jeffer Mangels Butler & Mitchell LLP. He advises clients on land use, development, water resources, and environmental regulatory compliance matters. Contact Ha at HChung@jmbm.com.

JMBM’s Natural Resources & Mining Law Group
Jeffer Mangels Butler & Mitchell LLP has one of California’s leading natural resources and mining law practice groups. The group is comprised of lawyers with over 25 years of practice in law firms, government, and consulting, and provides companies and trade associations with unparalleled counseling, compliance, and litigation services in nearly every area of federal and California natural resources and mining law.