Siting data centers on or across federal lands: What developers need to know
The federal government manages large swaths of land across the United States, particularly in the West, making federal land an increasingly important consideration for developing data centers and the transmission lines and generating facilities needed to power them. In the Western United States, five agencies manage most of the federal land: the Department of the Interior’s (DOI) Bureau of Land Management (BLM), U.S. Fish and Wildlife Service (FWS), and National Park Service, the Department of Defense (now War), and the U.S. Forest Service. Each of these agencies manages land under its particular statutory authorities and implementing regulations that determine the type of infrastructure that can be sited and the type of lease or transfer authority available. Pursuing sites on federal lands requires navigating an extensive list of statutes governing different agencies’ ability to transfer property by lease or grant of right-of-way.
Authorities to site projects on federal lands: The pathways for siting a project depend on the federal land managing agency’s authority. DOI’s BLM manages public lands under the Federal Land Policy and Management Act (FLPMA) and issues rights-of-way for transmission and renewable energy generation, and it leases lands for oil and gas under the Mineral Leasing Act of 1920 and for geothermal energy under the Geothermal Steam Act of 1970. The secretary of defense and the secretaries of the military departments are authorized to lease-out department-owned nonexcess real or personal property for data centers and supporting energy infrastructure, including through the Enhanced Use Lease Program under 10 U.S.C. § 2668, and to grant easements for rights-of-way, which could support transmission lines, substations, pipelines, and associated infrastructure. If the identified lands on which a developer is seeking to site a project have been “withdrawn” under FLPMA authority (e.g., for military use), approval from both the agency managing the land and the BLM will be required. Ultimately, real property disposition decisions turn largely on the availability of the property following evaluations of mission need, environmental conditions and status, potential environmental impacts, and the interests of the local community.
Integrating modern regulatory frameworks and NEPA reforms: The administrative landscape has drastically shifted under Executive Order 14318 (EO). This directive establishes an aggressive fast-track permitting process explicitly tailored for "qualifying projects"—defined as data centers with a committed capital expenditure of at least $500 million or a load addition exceeding 100 megawatts. Crucially for developers, EO 14318 interprets how the National Environmental Policy Act (NEPA) applies to federal agency decisions. It mandates that the Council on Environmental Quality coordinate with relevant agencies on the establishment of new categorical exclusions to cover actions related to qualifying projects that normally do not have a significant effect on the human environment, thereby bypassing environmental documentation for data center construction on federal lands. Furthermore, it directs that projects receiving less than 50% of their funding from federal capital shall be excluded from the definition of "major federal actions," thereby eliminating NEPA review triggers entirely based on such partial federal funding.
Streamlining does not eliminate complexity: Even with the emphasis on implementing “fast-track” process for this technology and data centers, however, the permitting and environmental review process for infrastructure development on federal lands remains multilayered, technology- and project-specific.
Although, under the current administration’s directives, project siting on federal lands may require minimal compliance with NEPA, such efficiencies do not affect compliance with other requirements, including historic resources consultation under Section 106 of the National Historic Preservation Act; tribal government-to-government consultation; consultations with, or permits issued by, the FWS and National Marine Fisheries Service under the Endangered Species Act (ESA) and other wildlife laws; permits issued by the Environmental Protection Agency under the Clean Air Act; and permits issued by the Army Corps of Engineers under the Clean Water Act and the Rivers and Harbors Act, among others.
In short, although executive actions to expedite permitting and streamline environmental reviews continue, when balanced against the protection of the environment, water and cultural resources and the interests of surrounding communities and tribes, developing on federal lands may prove more difficult and time-consuming than the rapid growth of data centers and their power sources would ideally allow.
