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Home | BakerHostetler

Jonathan Forman Speaks on Insider Trading at 2025 NSCP National Conference

IP Intelligence Report

Navigating Patent Eligibility in the Age of AI: Strategic Insights from the USPTO’s August 2025 Guidance

The Imperative of Energy Permitting Reform

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The Weekly Hill Update

On August 28, 2025, Poe Leggette spoke on The Imperative of Energy Permitting Reform before 6th Texas Energy Forum 2025 in Houston, Texas. His remarks and slides are enclosed.

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[Slide 1] Why is energy permitting reform an imperative? Because it is the key to energy dominance.

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President Trump’s energy policy, in two words, is “energy dominance.” How much energy makes America dominant?

Maybe an example will help. For brevity, consider oil. [Slide 2] Last year, the world produced 96.9 MB of “oil+” per day, with oil+ including natural gas liquids. Sixty-one percent of world oil+ comes from seven countries. The U.S. produces 21% of the total, about as much oil+ as Russia and Saudi Arabia combined. Is 21% of world production dominant enough?

Are there roadblocks to dominance? Yes, other priorities. A big priority for the President is reducing inflation. That goal requires a significant drop in the cost of transporting goods to market. Inflation and energy dominance are therefore linked.

Under near-term economic conditions, these two goals are likely incompatible. A simplistic look at crude oil and automotive gasoline makes the point.

[Slide 3] For context on inflation and the price of gasoline, consider the year 2019. In 2019, inflation averaged 1.5% per year. The average price of regular gasoline was around $2.50 per gallon. One day, regular gasoline was as low as $1.87 per gallon. The annual average “first purchase price” for crude oil was $55.60 per barrel. In 2024, the average regular gasoline price was $3.30; the average first purchase price was $74.62. We’ve made some headway recently. On July 31, 2025, WTI spot price was $70 a barrel. Gasoline nationally averaged $3.15 per gallon, still probably 80 cents a gallon too high from President Trump’s perspective.

What will it take to cut inflation AND be energy dominant? It will take time. U.S. EIA says a forecasted decline in oil prices has already led producers to slow drilling of new American wells. U.S. production is projected to peak this year at 13.6 million barrels a day, as prices start to slide back toward $55 a barrel. EIA forecasts that next year, the price for Brent crude oil, usually higher than that of West Texas Intermediate, will average $51 per barrel. Retail gasoline prices for all grades will drop to $2.90 per gallon, with regular gas less.<a href="#_edn1" id="_ednref1">[i]</a>

With crude oil prices falling back to the low $50s, these data imply the 2019 inflation rate could be achievable by the autumn of 2026.

Energy dominance, however, is another story. At current levels of costs to find and produce oil, if oil prices are in the mid-$50 range, the U.S. cannot become energy dominant. Unless. And the “unless” is why permitting reform is imperative.

Unless we can substantially cut the average costs of drilling and producing wells. There are many ways to cut costs, but two matter the most. One is through technological innovation.

Traditionally, innovation’s pace in drilling has been tied to oil’s price: There’s more innovation with $90 oil than with $50 oil. Artificial intelligence may change that. For example, early mover Devon Energy has used AI to reduce by many days how long it takes to drill a well. AI may decouple innovation’s pace from price and tie it to profit. To oversimplify, if it currently costs $50 a barrel to produce oil and oil sells for $70, that’s $20 of profit per barrel. If AI cuts costs to $25 a barrel, then there could be even greater investment in new drilling with $55 oil – with $30 of profit per barrel – than with $70 oil.

The Administration does not intend to place all its eggs in innovation’s basket. It aims to cut the costs of unnecessary regulation. That means fewer federal dictates and faster federal permits.

[Slide 4] Proponents of reform have focused on three issues. First is complying with the law called NEPA. An environmental impact statement under NEPA often is several thousand pages and takes years to prepare.

Second is how long it takes a federal agency to act on a permit.

Third is lawsuits. These include limiting the time a challenger has to sue and what remedies a court should be able to grant when the agency errs.

[Slide 5] In 2023, Congress passed the Fiscal Responsibility Act. It amended NEPA in two important ways. First, an EIS generally is not to exceed 150 pages, and it cannot take more than two years to complete. Second, if the agency misses the deadline, a court may order that the agency generally has no more than 90 days to finish it.<a href="#_edn2" id="_ednref2">[ii]</a>

[Slide 6] More legislation is needed to address the four most frequently recommended changes.

Limit the time during which someone may sue to challenge a permit: 90 days to 120 days after the permit is approved.

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A party may not challenge an EIS on any issue the party did not raise in comments on the draft EIS.

If the court finds fault with the agency’s ruling, it may no longer nullify the permit by “vacating” it. It may only “remand” it, sending the permit back to the agency and giving it no more than 180 days to fix the problem.

Finally, it must solve the problem of the never-ending release of scientific studies. Agencies must be able to disregard studies issued after a certain date.

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[Slide 7] Recently introduced in the House of Representatives is H.R. 4776, the “Standardizing Permitting and Expediting Economic Development Act,” or “SPEED Act.” As detailed in slides 7 and 8, the bill would address all the major points for reform.

What may we expect from the Executive Branch? Two Executive Orders are most relevant. EO 14156, “Declaring a National Energy Emergency,” and EO 14154, “Unleashing American Energy,” were both signed the afternoon of Inauguration Day.

[Slide 8] Recall that President Biden stopped approvals of LNG export projects. The “Unleashing” order directs the Secretary of Energy to restart approvals. On February 5, Energy Secretary Chris Wright did just that. In the next five years, U.S. LNG exports will climb quickly, a 10% increase per year. America is already becoming energy dominant in LNG.

Underway is a government-wide effort to streamline energy permitting. Here, the One Big Beautiful Bill Act has helped. If an applicant pays a fee for an EIS,<a href="#_edn3" id="_ednref3">[iii]</a> the agency must complete its work within one year. That shaves one year off the deadline set by the Fiscal Responsibility Act.

Finally, what can be done for data centers, especially those hosting artificial intelligence capabilities? This question must be answered at all levels of American government: federal, state, and local.

The Commonwealth of Virginia has done a lot already.<a href="#_edn4" id="_ednref4">[iv]</a> Northern Virginia is the largest data center market in the world, hosting – at 150 sites – what is currently 13 percent of global data center capacity.<a href="#_edn5" id="_ednref5">[v]</a>

In Virginia, demand for power is projected to triple by 2040, driven mostly by more data centers.<a href="#_edn6" id="_ednref6">[vi]</a> Virginia sees meeting that demand to be “very difficult.” The difficulty comes from the Virginia Clean Economy Act. That Act will require more wind and solar and less fossil fuels. Even so, Virginia projects the need to build eight more large gas-powered 1,500 MW plants in the next 15 years.<a href="#_edn7" id="_ednref7">[vii]</a> Without them, new “large load” customers will face substantial delay.

Both Virginia and the Trump Administration are now looking to on-site generation to handle each new data center’s total demand. Eventually small modular nuclear reactors might help, but the current leader is generation powered by natural gas.

Last month President Trump issued his overall approach to AI in Executive Order 14,318,<a href="#_edn8" id="_ednref8">[viii]</a> titled “Accelerating Federal Permitting of Data Center Infrastructure.”

I’ll just touch on the basics. How does the Order answer three questions: (1) How will permitting be simplified? (2) Where will the new projects be located? and (3) How will the projects be paid for?

For the most part, the answers are limited to data centers and projects making any components that data centers need. Either a data center or a components project must meet the test to be a “Qualifying Project.”<a href="#_edn9" id="_ednref9">[ix]</a>

On permit review, the Council on Environmental Quality is to let qualifying projects be covered by more categorical exclusions from further NEPA review.<a href="#_edn10" id="_ednref10">[x]</a> EPA is to expedite permitting under various environmental statutes, such as the Clean Air Act, Clean Water Act, and Toxic Substances Control Act.<a href="#_edn11" id="_ednref11">[xi]</a> Where the Interior and Energy Departments can offer federal land to be used to site projects, those departments are to begin a program-level consultation under the Endangered Species Act.<a href="#_edn12" id="_ednref12">[xii]</a> And the Secretary of the Army is to review whether any nationwide permits may be needed for projects that may affect “waters of the United States.”<a href="#_edn13" id="_ednref13">[xiii]</a>

Projects may be built anywhere a developer can get land rights and permits. But the Departments of Defense, Energy, and Interior – each with significant land holdings – are directed to study potential locations on land they administer.<a href="#_edn14" id="_ednref14">[xiv]</a> Energy Secretary Wright has already announced four sites in Idaho, Kentucky, Tennessee, and South Carolina.<a href="#_edn15" id="_ednref15">[xv]</a>

Finally, the Secretary of Commerce and other agencies are to look for ways to “provide financial support for Qualifying Projects, which could include loans and loan guarantees, grants, and tax incentives.”<a href="#_edn16" id="_ednref16">[xvi]</a> Otherwise, it’s up to the private sector to invest capital. There will be many debates at state public utilities commissions and at the Federal Energy Regulatory Commission about how some of those costs are to be allocated to ratepayers.

There will be much to follow on federal permitting reform in the next 15 months.

<a href="https://admin.bakerlaw.com/wp-content/uploads/2025/09/August-27-28-2025-U.S.-Energy-Stream-6th-Texas-Energy-Forum-2025-The-Imperative-of-Energy-Permitting-Reform.pptx" target="_blank" rel="noreferrer noopener">U.S. Energy Stream 6th Texas Energy Forum 2025.</a>

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<a href="#_ednref1" id="_edn1">[i]</a> U.S. EIA, Short-Term Energy Outlook at 1 (Aug. 12, 2025).

<a href="#_ednref2" id="_edn2">[ii]</a> 42 U.S.C. § 4336a.

<a href="#_ednref3" id="_edn3">[iii]</a> Pub. L. 119-21, 139 Stat. 72, 157-58 (July 4, 2025).

<a href="#_ednref4" id="_edn4">[iv]</a> Joint Legislative Audit and Review Commission, Report to the Governor and the General Assembly of Virginia: Data Centers in Virginia, 2024 (December 9, 2024).

<a href="#_ednref5" id="_edn5">[v]</a> Id. at 5. At the time the report was published, Virginia had 70 new sites under development. Id. at 8.

<a href="#_ednref6" id="_edn6">[vi]</a> Id. at iii. By 2040, demand from what the JLARC calls “unconstrained demand” will exceed 30,000 gigawatt hours per month. Id.

<a href="#_ednref7" id="_edn7">[vii]</a> Id. at iv.

<a href="#_ednref8" id="_edn8">[viii]</a> 90 Fed. Reg. 35385 (July 23, 2025).

<a href="#_ednref9" id="_edn9">[ix]</a> Section 2(d). 90 Fed. Reg. at 35386.

<a href="#_ednref10" id="_edn10">[x]</a> Section 5(a) &amp; (b). 90 Fed. Reg. at 35386.

<a href="#_ednref11" id="_edn11">[xi]</a> Section 7. 90 Fed. Reg. at 35387.

<a href="#_ednref12" id="_edn12">[xii]</a> Section 8(a). 90 Fed. Reg. at 35387.

<a href="#_ednref13" id="_edn13">[xiii]</a> Section 8(b). 90 Fed. Reg. at 35387.

<a id="_edn14" href="#_ednref14">[xiv]</a> Section 9. 90 Fed. Reg. at 35387.

<a href="#_ednref15" id="_edn15">[xv]</a> U.S. Department of Energy, “DOE Announces Site Selection for AI Data Center and Energy Infrastructure Development on Federal Lands,” Press Release (July 24, 2025), <a href="http://www.energy.gov/articles/doe-announces-site-selection-ai-data-center-and-energy-infrastructure-development-federal">www.energy.gov/articles/doe-announces-site-selection-ai-data-center-and-energy-infrastructure-development-federal</a> (last visited Aug. 22, 2025).

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