The policy, effective immediately and with no expiration date, requires nearly all federal actions related to wind and solar energy facilities to undergo centralized, multi-tiered review culminating in approval by the Secretary of the Interior.  Federal bureaus within DOI鈥檚 purview include the U.S. Fish and Wildlife Service (FWS), the Bureau of Indian Affairs (BIA), the National Park Service, and the Bureau of Land Management (BLM), among others.  

This client alert summarizes the key provisions of the DOI Wind and Solar Memo, its potential impact on permitting and development timelines, and how it may affect state-level proceedings.

What Projects and Actions Are Covered?

The DOI Wind and Solar Memo applies broadly to:

• Projects sited on federal lands managed by DOI agencies. 
• Projects on private or state lands that require any authorization, consultation with, or approval by, or a permit from, a DOI agency (e.g., U.S. FWS incidental take permits under the Endangered Species Act).

There are 68 specified categories of action relating to wind and solar projects that trigger the multi-tiered internal review process, including: 

• NEPA documents (EAs, EISs, FONSIs, RODs);
• Right-of-way grants, leases, and temporary use permits;
• Biological assessments, biological opinions, and species consultations;
• Permits under the Endangered Species Act, Migratory Bird Treaty Act, and the Bald and Golden Eagle Protection Act; 
• Section 106 compliance under the National Historic Preservation Act; 
• Cultural and tribal resource consultations;
• Notices and authorizations published in the Federal Register;
• Funding grants and discretionary awards;
• Any other federal agency action or decision facilitating wind or solar development.

A catch-all provision further extends the policy to “any other undertaking that in whole or in part facilitates the development, construction, or operation of wind or solar energy facilities.”

New Review Process

Under the DOI Wind and Solar Memo, all covered actions must be submitted for centralized review by the DOI Office of Executive Secretariat and Regulatory Affairs, with subsequent review by the Deputy Secretary of the Interior, and with final approval by the Secretary of the Interior.

Routine decisions that were once handled regionally or by field offices must now undergo top-level scrutiny, regardless of complexity or urgency.

Implications for Developers

1. Project Delays: The new process is already causing significant delays, with some U.S. FWS field offices reportedly pausing processing of wind and solar-related consultations pending further guidance.  Agency tools aimed at speeding up the consultation process also have been scaled back: For example, the U.S. FWS鈥檚 Information for Planning and Consultation (IPaC) tool is routinely used by wind and solar developers as a screening tool for the potential presence of listed species and critical habitat.  However, as of this writing, the IPaC website states that solar and wind products are not eligible to use this tool, citing the DOI Wind and Solar Memo.  

2. Uncertainty for Privately Sited Projects: Projects located on private land are not insulated from the new requirements if they involve any federal permits or consultations under DOI authority. This includes siting of transmission lines and access roads that may need to cross federal lands, as well as species impacts.

3. Tax Credit Risks: The timing of the release of the DOI Wind and Solar Memo coincides with the July 4, 2025 signing of the One Big Beautiful Bill Act, which phases out clean energy tax credits for wind and solar projects after December 31, 2027, unless construction begins beforehand. The additional reviews required by the DOI Wind and Solar Memo may jeopardize lengthen project timelines and hinder efforts to meet those deadlines.

4.  Impacts to Project Financing.  The added uncertainty and potential delays introduced by the DOI Wind and Solar Memo may pose risks to project financing.  Lenders and tax equity investors typically require reasonably clear permitting timelines and demonstrated eligibility for critical tax incentives as conditions precedent to closing.  The memorandum鈥檚 requirement for Secretary-level review of even routine federal actions may disrupt those timelines, increasing the risk of missed commercial operation milestones, delayed disbursements, or failure to qualify under 鈥渂egin construction鈥� rules for the Investment Tax Credit (ITC) and Production Tax Credit (PTC). Projects in late-stage development or approaching financing deadlines may need to reassess their permitting risk allocation, revise project schedules, or negotiate extensions with financial partners. 

5. Risk to State-Level Proceedings: While the DOI Wind and Solar Memo governs federal agency actions, its impact may ripple into state-level permitting processes. For example:

• States that condition approvals on receipt of federal consultations (e.g., ESA Section 7, eagle permits) may see delayed timelines.
• State public utility commissions (PUCs) may need to reevaluate project schedules if federally related milestones are uncertain.
• In jurisdictions with coordinated permitting regimes, delays in a single federal component may stall broader approvals.

Recommendations

• Conduct an immediate audit of pending and planned actions to determine whether any aspect of a project may require approvals that fall within the scope of the Memorandum.
• Avoid a federal nexus where feasible (e.g., by siting projects to avoid impacts to federal lands or listed species).
• Coordinate early with counsel and consultants to identify mitigation strategies and document efforts to meet tax credit deadlines.
• Engage with DOI and congressional representatives to advocate for practical implementation policies and timely guidance.

Please contact either of the authors for assistance evaluating how the DOI’s new policy may affect your projects or with any questions about compliance, permitting, or risk management strategies.

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The Reality: Climate Targets Are Tight. Nuclear Helps Close the Gap.

Whether you鈥檙e looking at reports from the International Energy Agency (IEA), Intergovernmental Panel on Climate Change (IPCC), the Paris Agreement or the net zero strategies of other developed countries, the message is resoundingly the same: we are unlikely to reach climate goals anywhere near on time without rapid deployment of nuclear energy.  Nuclear energy, specifically modernized Light Water Reactors (LWRs) and next-generation Small Modular Reactors (SMRs), is being included in more integrated clean energy planning. These technologies are carbon-free, firm and dispatchable, often sited closer to demand, and increasingly backed by private capital and government support.

The First Wave: Safer, More Efficient LWRs

What鈥檚 coming online first isn鈥檛 a dramatic shift from the past, but a smarter, safer, more streamlined version of it.  Modern LWRs (like the one being restarted at Palisades in Michigan) benefit from modern safety enhancements, digital monitoring systems and stricter oversight, making them safer and more resilient than older plants.  This isn鈥檛 theoretical鈥攊t鈥檚 happening now, with public and private funding support.  Repowering closed plants, expanding existing plants with modular advanced nuclear systems, and converting coal plants into nuclear are the lowest-hanging fruit (given existing infrastructure, interconnection and permitting) and these will be the among the first projects to get done with federal and other public funds.

The Second Wave: SMRs, Microreactors, and Behind-the-Meter Opportunities

Beyond LWRs, SMRs and microreactors offer a more flexible nuclear option for a variety of use cases such as industrial co-location, remote communities, data centers and microgrids.  There鈥檚 growing interest in nuclear for behind-the-meter applications鈥攐ffering round-the-clock, emissions-free baseload power to facilities with high resilience or ESG demands. Notably, large technology and manufacturing companies have publicly expressed interest in developing or purchasing clean nuclear power for these purposes.

SMRs are widely expected to enter commercial operation in the early 2030s.  For instance, the Tennessee Valley Authority (TVA) has applied for a construction permit for a BWRX-300 at the Clinch River site 鈥� this is targeting COD by 2033.  Similarly, Google-backed projects involving Kairos Power aim to have demonstration reactors operational by 2030, supporting major AI data centers.  Meanwhile, microreactors, which are designed to be very small, transportable, and remotely operated, are beginning experimental deployment even sooner.  DOE鈥檚 DOME test bed at Idaho National Laboratory is slated to host the first fueled microreactor experiments starting in spring 2026, with fully operational microreactors like the DOE-supported MARVEL, which is expected to be online by 2027.  These timelines reflect a broader strategy to see commercial microreactor deployment around 2030 once regulatory, licensing and supply chain hurdles are resolved.

Ultimate Goal: Fusion

While advanced nuclear fission is powering the near-term nuclear revival, nuclear fusion remains the holy grail of clean power.  Fusion replicates the process that powers the sun, offering limitless, carbon-free energy with no risk of meltdown and virtually no long-lived waste.  Though commercial deployment is still on the horizon, timelines are accelerating.  Several fusion projects are currently underway – one with Helion Energy (backed by Sam Altman and partnered with Microsoft) has started construction in Malaga, Washington and is aiming to start powering Microsoft data centers in 2028.  The massive international ITER project in France (the world鈥檚 largest fusion experiment) expects to achieve first plasma by 2035.  Google recently signed one of the world鈥檚 first-ever PPAs for fusion energy with Commonwealth Fusion Systems, covering 200MW  from CFS鈥檚 future ARC fusion plant in Chesterfield County, Virginia, which is expected to achieve COD in the early 2030鈥檚.  Further, DOE鈥檚 Milestone-Based Fusion Development Program is already funding eight U.S.-based fusion companies, accelerating prototype and pilot-stage progress toward commercialization between 2030-2035.  If successful, fusion will be a game-changing, limitless source of clean energy 鈥� any getting there starts with saying yes to smart nuclear now. 

Moving Forward

For developers, investors, utilities, and advisors already working in renewables, this moment presents an opportunity鈥攏ot a competition. Many of the skills, networks, and tools used to build solar and wind portfolios translate well to advanced nuclear, such as: siting and permitting experience, grid interconnection strategy, tax credit structuring, and infrastructure and community engagement.  In short, although we are a number of years away from commercial financing of nuclear projects, clean energy professionals already have the playbook and advanced nuclear will soon become another page in it.

The technology is here. The market interest is growing. And for those who want to be part of building what鈥檚 next, the door is opening.

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take all action as the Secretary of the Treasury deems necessary and appropriate to strictly enforce the termination of the clean electricity production and investment tax credits under sections 45Y and 48E of the Internal Revenue Code for wind and solar facilities.  This includes issuing new and revised guidance as the Secretary of the Treasury deems appropriate and consistent with applicable law to ensure that policies concerning the 鈥渂eginning of construction鈥� are not circumvented, including by preventing the artificial acceleration or manipulation of eligibility and by restricting the use of broad safe harbors unless a substantial portion of a subject facility has been built.

The Executive Order shouldn鈥檛 come as a surprise. Last week, it was reported that House conservatives were assured by the Trump administration that it would crack down on renewable energy tax credits and projects in exchange for their vote. 

Renewable energy companies face a crucial question: What comes next? Are renewable energy tax credits doomed? Will there be another reconciliation bill next year, and if so, will Congress attempt to delay the phase-out schedules for wind and solar projects? Will they seek to extend the 鈥渂eginning of construction鈥� language that barely made it into the last package? 

If a reconciliation bill does materialize next year, it鈥檒l be much closer to midterm elections. That means, House and Senate leadership will be eager to provide vulnerable Republican members with 鈥渨ins,鈥� potentially bringing the renewable energy sector back onto center stage. It鈥檚 a good thing that moderate Republicans were able to get a phased-out approach and 鈥渂eginning of construction鈥� language in the reconciliation package 鈥� bringing back such measures from the grave would have been significantly more challenging.  

Now is not the time to take a break from advocating for renewable energy tax credits. The Foley Public Affairs team is well-equipped to assist in these efforts. 

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Key Provisions of the Advanced Nuclear Bills

1. Creation of the Texas Advanced Nuclear Energy Office

At the heart of H.B. 14 is the creation of the Texas Advanced Nuclear Energy Office (TANEO), a new agency housed within the Office of the Governor. [New Section 483.101(a) of the Texas Government Code]. TANEO is designed to facilitate advanced nuclear development in Texas by providing strategic leadership for the advanced nuclear reactor system in Texas, coordinating permits and regulatory efforts, engaging in public education and outreach, promoting the development of advanced nuclear reactors for dispatchable electric generation, creating high-wage manufacturing jobs, identifying barriers to nuclear project development, and supporting the creation of an in-state advanced nuclear supply chain. [Id. at subsection (b)]. The bill authorizes the Governor to appoint a Director of the Office to oversee and administer programs established under the Office [New Section 483.103 of the Texas Government Code] and a Nuclear Permitting Coordinator to assist developers with navigating federal, state, and local permitting requirements. [New Section 483.104 of the Texas Government Code]. 

2. New Grant Programs to Support Nuclear Development

H.B. 14 establishes the Texas Advanced Nuclear Development Fund, a dedicated account in the state鈥檚 General Revenue fund. [New Section 483.201(a) of the Texas Government Code]. The fund will support three new grant programs designed to reimburse expenses for qualifying projects using advanced nuclear technologies, including small modular reactors and microreactors.  The Legislature has appropriated $350 million into the fund.

1. Project Development and Supply Chain Reimbursement Grants. Reimburses up to 50% of eligible early-stage costs (e.g., feasibility studies, engineering, licensing work), capped at $12.5 million per project. [New Section 483.203 of the Texas Government Code].
2. Advanced Nuclear Construction Reimbursement Grants. Covers up to 50% of qualifying construction costs, including Nuclear Regulatory Commission application fees and long-lead component procurement, with a cap of $120 million per project. Projects must have a construction permit or license application docketed with the U.S. Nuclear Regulatory Commission. [New Section 483.204 of the Texas Government Code].
3. Completion Bonus for ERCOT-Connected Reactors. Provides performance-based grants for advanced nuclear reactors that reach commercial operation and connect to the ERCOT power grid. Award amounts will be based on the facility鈥檚 generation capacity determined on a per-megawatt basis. [New Section 483.205 of the Texas Government Code]. 

TANEO will evaluate each grant applicant based on the applicant鈥檚 quality of services and management, efficiency of operations, access to resources essential to the project, application for a permit or license with the U.S. Nuclear Regulatory Commission, ability to repay the grant if benchmarks are not met, and the project鈥檚 potential benefit to the state. [New Section 483.206 of the Texas Government Code]. H.B. 14 ensures that these grants are reimbursement-based and not up-front funding. [New Section 483.202(b) of the Texas Government Code]. Recipients must repay grant funds if project milestones are not met. [Id. at subsection (e)(2)]. The bill also prohibits grants to applicants who already received state-appropriated funds under certain conditions. [Id. at subsection (c)]. 

3. Legislative Oversight and Confidentiality 

Before finalizing any grant award under H.B. 14, TANEO must provide notice to the Lieutenant Governor and Speaker of the House, who may jointly disapprove of the proposed grant within 30 days (with one possible 14-day extension). [Id. at subsection (d)]. Grant application materials are deemed confidential and not subject to public disclosure under the Texas Public Information Act. [New Section 483.207 of the Texas Government Code]. 

4. Streamlined Procedures for Uranium Mining and Production

S.B. 1061 streamlines the uranium-mining application process by reducing procedural delays and clarifying permitting rules. Specifically, S.B. 1061 amends the Texas Water Code to provide that applications for authorization or amendment to authorization can be uncontested if:

1. the authorization covers a production area located within the boundaries of a permit that incorporates a range table of groundwater quality restoration values for each area;
2. the restoration values for each production area are below the established range鈥檚 upper limit; 
3. the authorization covers a production area located within the boundaries of a permit that incorporates wells鈥� groundwater baseline characteristics as required by Texas Commission on Environmental Quality (TCEQ) rule; and
4. the TCEQ mails the application鈥檚 notice of receipt to the county鈥檚 groundwater conservation district and surface and mineral owners in the area no later than 30 days after the TCEQ determines the application to be administratively complete. [New Sections 27.0513(d)(1) 鈥� (4) of the Texas Water Code].

These changes allow companies to avoid the full permitting process when amending applications and will apply to applications or amendments submitted on or after September 1, 2025. [S.B. 1061, Sections 3 and 4].

5. Creation of an Advanced Nuclear Energy Workforce Development Program 

S.B. 1535 creates the advanced nuclear energy workforce development program to develop a talent pipeline for the anticipated advanced nuclear industry growth. The bill directs the Texas Workforce Commission (TWC) to create and administer this initiative. [New Section 302.0081(b) of the Texas Labor Code]. The TWC must collaborate with the Texas Education Agency and the Texas Higher Education Coordinating Board to assess labor supply gaps in the advanced nuclear energy industry, retain talent and strengthen the nuclear workforce pipeline [Id. at subsection (c)(1)(A)], and support the development of academic and training programs in nuclear-related disciplines. [Id. at subsection (c)(2)]. The bill also authorizes support for public-private partnerships to create nuclear career awareness, academic pathways into nuclear fields, workforce training programs offered by public colleges and technical schools, and research and leadership development at general academic institutions. [Id. at subsection (c)(1)(B)]. Overall, S.B. 1535 intends to increase workforce capacity to meet the anticipated growth of Texas鈥檚 advanced nuclear energy industry. 

What Adoption of these Bills Means

Collectively, these bills represent a landmark for nuclear energy in Texas.  They institutionalize state-level support, from permitting coordination to sizable grant and workforce development.  With full gubernatorial backing and alignment with established energy needs, lawmakers and industry are positioned to see a major shift in Texas鈥檚 energy portfolio. For the energy sector, emerging nuclear capacity could greatly strengthen much needed grid resilience, drive economic activity in project development, manufacturing and finance, and signal that Texas is preparing for diverse and reliable power sources in addition tofossil fuels and renewables.

About Foley鈥檚 Energy & Infrastructure Sector 

Foley鈥檚 cross-disciplinary Energy & Infrastructure team of more than 200 attorneys regularly represents clients in the traditional and renewable power, oil & gas, and infrastructure and energy transition industries. Along with our Government Solutions practice group, we are well-positioned to advise you on the implications of this and other state or federal legislation that might affect the way you do business. 

Special thanks to Chance Fraser, a summer associate in Foley鈥檚 Houston office, for his contributions to this article.

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