# Preemptive Effect of Defense Production Act Order on State Law

> Department of Justice Office of Legal Counsel · March 3, 2026

URL: https://www.frixlaw.com/law-library/cases/11270256

## Case

- **Court:** Department of Justice Office of Legal Counsel
- **Decided:** March 3, 2026
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

(Slip Opinion)

Preemptive Effect of Defense Production Act
Order on State Law
Presidential orders issued as an exercise of congressionally delegated authority or the
President’s constitutional powers have the force of federal law under the Supremacy
Clause and may preempt state law.
An order issued pursuant to the Defense Production Act may preempt state laws expressly
or by conflict.
An order issued pursuant to the Defense Production Act may displace sanctions for non-
compliance with a contrary consent decree, even if that consent decree rests on federal-
law claims.

March 3, 2026

MEMORANDUM OPINION FOR THE GENERAL COUNSEL
DEPARTMENT OF ENERGY

Sable Offshore Corp. (“Sable”) is the lessee and operator of the Santa
Ynez Unit (“SYU”), an offshore oil and gas unit located in federal waters
off the coast of California. Sable and the Department of the Interior are
updating a previously approved Development and Production Plan, which
would allow for continuous production on the SYU to address energy
vulnerabilities on the West Coast. But, according to Sable, the State of
California has impeded it from operating the SYU and transporting pro-
duction through the Santa Ynez Pipeline System.
You have asked whether an order issued under the Defense Production
Act of 1950 (“DPA” or “Act”), Pub. L. No. 81-774, 64 Stat. 798 (codified
as amended at 50 U.S.C. § 4501 et seq.), to Sable by the President or his
delegee would preempt the California laws currently impeding Sable from
resuming production and operating the associated pipeline infrastructure.
We conclude that it would. An order issued as an exercise of congression-
ally delegated authority or the President’s constitutional powers has the
force of federal law under the Supremacy Clause and may preempt contra-
ry state law. Because the DPA authorizes the President to order certain
actions that may otherwise be prohibited by state law, an order issued
pursuant to the DPA could preempt those laws expressly or by conflict.
That is true regardless of the form of the President’s order, although we
refer in this memorandum to executive orders for simplicity. See Legal
Effectiveness of a Presidential Directive, as Compared to an Executive

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50 Op. O.L.C. __ (Mar. 3, 2026)

Order, 24 Op. O.L.C. 29, 29 (2000) (“[T]here is no substantive difference
in the legal effectiveness of an executive order and a presidential directive
that is styled other than as an executive order.”). 1

I.

A.

On January 20, 2025, President Trump declared a national emergency
related to the Nation’s energy supply and infrastructure. See generally
Exec. Order No. 14156. The President determined that the Nation’s
“insufficient energy production, transportation, refining, and generation
constitutes an unusual and extraordinary threat to our Nation’s economy,
national security, and foreign policy.” Id. § 1. “These numerous prob-
lems,” the President emphasized, “are most pronounced in our Nation’s
Northeast and West Coast, where dangerous State and local policies
jeopardize our Nation’s core national defense and security needs.” Id.
The President directed the heads of executive departments and agencies
to wield “any lawful emergency authorities available to them” to bolster
the “production, transportation, refining, and generation of domestic
energy resources.” Id. § 2(a). “If an agency assesses that use of either
Federal eminent domain authorities or authorities afforded under the
Defense Production Act are necessary to achieve this objective, the agen-
cy shall submit recommendations for a course of action to the

1 President Obama delegated Title I authority under the DPA to the Secretary of Ener-

gy for all energy-related matters. See Exec. Order No. 13603 (2012). For convenience, we
refer in this memorandum to determinations made, and orders given, by the President,
even though that authority has been lawfully delegated to the Secretary. We note that an
executive order issued by President Trump provides that if an agency seeks to invoke the
DPA, it “shall submit recommendations for a course of action to the President.” Exec.
Order No. 14156 § 2(a) (2025). This language does not, however, impliedly limit the
scope of the power delegated by the President to the Secretary. The provisions of each
executive order are not “in irreconcilable conflict,” nor is President Trump’s order
“clearly intended as a substitute” for President Obama’s delegation. Carcieri v. Salazar,
555 U.S. 379, 395 (2009) (cleaned up). Instead, President Trump’s order provides only
that the Secretary should submit a recommendation to the President before wielding
delegated authority. See Exec. Order No. 14156 § 2(a). The Secretary could, for instance,
recommend that the Secretary himself—rather than the President—issue a DPA order.
And nothing in President Trump’s executive order requires the President’s affirmative
approval of a recommendation before the Secretary acts. See generally id.

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Preemptive Effect of DPA Order

President . . . .” Id. (internal citation omitted). The President also instruct-
ed agencies to expedite the completion of energy infrastructure, including
by “facilitat[ing] the supply, refining, and transportation of energy in and
through the West Coast of the United States.” Id. § 3(b).

B.

The SYU—which Sable leases and operates—is a critical energy re-
source on the West Coast. Located in federal waters in the Pacific Ocean,
it is the largest known offshore oilfield in the United States. See Letter for
Jonathan Brightbill, General Counsel, Department of Energy, from
James W. Noe, Partner, Holland & Knight LLP, Re: Sable Offshore
Corp.—Request for Action Under the Defense Production Act at 1
(Dec. 12, 2025) (“Sable Letter”).2 It has an estimated 904 million barrels
in place, and from 1981 to 2014, it produced more than 670 million bar-
rels of oil. Id.
For most of the SYU’s production history, oil and gas were produced
through pipeline infrastructure connecting offshore platforms to onshore
facilities in Las Flores Canyon, California. Id. at 2. From there, crude oil
was transported via onshore pipeline to a California refinery complex via
the Las Flores Pipeline System. Id. This network of on- and offshore
pipelines is known as the Santa Ynez Pipeline System. Id. Currently,
Sable and the Department of the Interior are updating a previously ap-
proved Development and Production Plan to address West Coast energy
vulnerabilities. Id. at 1–2.
But according to Sable, the State of California is impeding it from re-
suming transportation of SYU production through the Santa Ynez Pipeline
System. Sable reports that “California agencies have deployed an array of
state measures—including SB 237, the state waiver process, novel inter-
pretations of state agency jurisdiction and authority, excessive delay in
granting a long-term easement through a state park for an existing pipe-
line, and the Restart Plan requirements under [a] Consent Decree—to
block pipeline operations.” Id. at 6.

2 For purposes of this advice, we accept the veracity of the factual statements set forth

in Sable’s letter, although we are not presently in a position to verify their accuracy.

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50 Op. O.L.C. __ (Mar. 3, 2026)

Sable has thus requested the Secretary of Energy (“Secretary”) to make
necessary findings under the DPA and issue an order “requiring Sable to
operate the Santa Ynez Unit and the Santa Ynez Pipeline System to max-
imize domestic energy production.” Id. at 9. In Sable’s view, such an
order would conflict with—and therefore preempt—California state law.
Id. at 6.

II.

Preemption doctrine derives from the constitutional hierarchy estab-
lished by the Supremacy Clause. That clause provides that “the Laws of
the United States,” as well as the Constitution and treaties, “shall be the
supreme Law of the Land,” notwithstanding “any Thing in the Constitu-
tion or Laws of any State to the Contrary.” U.S. Const. art. VI, cl. 2. The
Supremacy Clause thus enshrines two principles into our legal system: It
places federal law above state law in the constitutional hierarchy, and it
establishes a choice-of-law rule that federal law must prevail whenever it
conflicts with state law. The Supreme Court has “identified three different
types of preemption—conflict, express, and field—but all of them work in
the same way.” Murphy v. Nat’l Collegiate Athletic Ass’n, 584 U.S. 453,
477 (2018) (cleaned up). Federal law typically “imposes restrictions or
confers rights on private actors; a state law confers rights or imposes
restrictions that conflict with the federal law; and therefore the federal law
takes precedence and the state law is preempted.” Id. At times, federal law
“might appear to operate directly on the States,” such as in the form of an
express preemption provision, but such provisions operate “just like any
other federal law with preemptive effect” by conferring on private entities
“a federal right to engage in certain conduct subject only to certain (feder-
al) constraints.” Id. at 478–79.
We first explain that an executive order may preempt state law when
the President is empowered by the Constitution or statute to regulate
private parties or where state law would otherwise conflict with a lawful
exercise of the President’s official powers. We then describe the two
primary ways in which executive orders might displace state law—
expressly or by conflict.

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Preemptive Effect of DPA Order

A.

The Constitution vests the entire executive power in a single President,
whose “duties are of ‘unrivaled gravity and breadth.’” Trump v. United
States, 144 S. Ct. 2312, 2327 (2024) (quoting Trump v. Vance, 140 S. Ct.
2412, 2425 (2020)). The President’s authority to wield these powers
“necessarily stems either from an act of Congress or from the Constitution
itself.” Id. (cleaned up) (quoting Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579, 585 (1952)). The Constitution that the President must
defend, and the federal laws that he must execute, are “the supreme
Law[s] of the Land.” U.S. Const. art. VI, cl. 2; see also id. art. II, § 1,
cl. 8; id. art. II, § 3. Of course, “the President alone and unaided could not
execute the laws. He must execute them by the assistance of subordi-
nates.” Myers v. United States, 272 U.S. 52, 117 (1926).
The power of executive agencies—literally, the Chief Executive’s
agents—to preempt state law is well understood. Congress may authorize
executive agencies to promulgate regulations that “have the force and
effect of law.” Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979) (cita-
tion and internal quotation marks omitted). “This doctrine is so well
established that agency regulations implementing federal statutes have
been held to pre-empt state law under the Supremacy Clause.” Id. at 295–
96. Put simply, when agencies issue regulations implementing federal
statutes, those regulations are fully clothed in “the Laws of the United
States” for purposes of preemption and therefore can displace contrary
state law. U.S. Const. art. VI, cl. 2. To be sure, an agency’s power to
preempt state law is not unlimited. “[A] federal agency may pre-empt
state law only when and if it is acting within the scope of its congression-
ally delegated authority, for an agency literally has no power to act, let
alone pre-empt the validly enacted legislation of a sovereign State,
unless and until Congress confers power upon it.” New York v. FERC,
535 U.S. 1, 18 (2002) (cleaned up). But within the confines of delegated
authority, executive preemption of state law is an unremarkable feature of
our governmental structure.
This logic applies a fortiori to the President, who is the head of the Ex-
ecutive Branch and wields independent constitutional powers that agen-
cies lack on their own. Regardless of whether the President derives his
authority from statute or directly from the Constitution, he wields a piece

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50 Op. O.L.C. __ (Mar. 3, 2026)

of federal sovereignty itself, so long as he acts within the bounds of his
authority. States thus lack the power to impede the exercise of the Presi-
dent’s official powers, as to do so would be to interfere with the United
States itself. See, e.g., Tarble’s Case, 80 U.S. (13 Wall.) 397, 403–04
(1872) (holding that this rule applies “whether that authority be exercised
by a Federal officer or be exercised by a Federal tribunal”); see also In re
Neagle, 135 U.S. 1, 75 (1890) (holding that California murder law could
not be applied to prosecute a federal officer “for an act which he was
authorized to do by the law of the United States”). The Constitution’s
command that federal law prevails over contrary state law thus necessarily
entails that valid presidential action preempts and displaces conflicting
state law. See In re Neagle, 135 U.S. at 62 (“While [the federal govern-
ment] is limited in the number of its powers, so far as its sovereignty
extends[,] it is supreme.”); see, e.g., Am. Ins. Ass’n v. Garamendi,
539 U.S. 396, 416 (2003) (concluding that executive agreements, which
do not require congressional approval, “are fit to preempt state law, just as
treaties are”).
Presidential preemption is most likely to arise when “the President acts
pursuant to an express or implied authorization of Congress.” Youngstown
Sheet & Tube Co., 343 U.S. at 635 (Jackson, J., concurring). In such
circumstances, the President’s authority to regulate “is at its maximum,
for it includes all that he possesses in his own right plus all that Congress
can delegate.” Id. That is, when Congress authorizes the President to act,
the President may do so in a way that shunts aside conflicting state en-
actments, provided he acts within the scope of the congressional authori-
zation or his independent constitutional authority.
Like regulations issued by agencies, executive orders authorized by the
Constitution or a federal statute may preempt state law. As the Supreme
Court has explained, executive orders “may create rights protected against
inconsistent state laws through the Supremacy Clause,” especially when
such orders are issued pursuant to “congressional authorization.” Old
Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin,
418 U.S. 264, 273 n.5 (1974) (citing Youngstown Sheet & Tube Co.,
343 U.S. at 635–37 (Jackson, J., concurring)). Our Office, too, has long
recognized an executive order “can of course have the force and effect of
law,” “particularly” if it “rests on specific statutory authority.” Memoran-
dum for Phyllis Coven, Deputy Associate Attorney General, Office of the

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Preemptive Effect of DPA Order

Associate Attorney General, from Daniel L. Koffsky, Acting Assistant
Attorney General, Office of Legal Counsel, Re: Matter of Chu and Matter
of Tsun at 17 n.15 (July 1, 1993). Thus, when an executive order is au-
thorized by the Constitution or a federal statute (or both), “it can be en-
forced by the government against private parties and may preempt con-
flicting state law.” Kevin M. Stack, The Statutory President, 90 Iowa L.
Rev. 539, 551 (2005) (footnotes omitted); see also, e.g., League of United
Latin Am. Citizens v. Exec. Off. of the President, 780 F. Supp. 3d 135, 171
(D.D.C. 2025).
Importantly, Congress need not mention preemption by name when au-
thorizing the President to displace state law. Rather, Congress may au-
thorize the President to preempt state law simply by conferring upon him
regulatory power. See, e.g., Letter Carriers, 418 U.S. at 273 n.5. When
determining whether Congress has delegated such authority to the Execu-
tive Branch, courts simply “interpret the statute,” “without any presump-
tion one way or the other” about preemption. FERC, 535 U.S. at 18. “In
other words, we must interpret the statute to determine whether Congress
has given [the Executive Branch] the power to act,” using ordinary princi-
ples of statutory interpretation. Id. As with any statute authorizing the
Executive Branch to regulate pursuant to flexible statutory terms, courts
must identify “the best reading of [the] statute” and “effectuate the will of
Congress” as expressed by the text. Loper Bright Enters. v. Raimondo,
144 S. Ct. 2244, 2263 (2024).
In sum, executive orders may preempt state law when the President’s
regulatory power stems from either congressional authorization or the
Constitution itself.

B.

Executive orders, like statutes, may preempt state law in one of two
ways: expressly or by implication.
Start with express preemption, which operates “through express lan-
guage” in a presidential order or statute declaring certain state laws
preempted. Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 376 (2015); see,
e.g., Preemption of State and Local Requirements Under a PREP Act
Declaration, 45 Op. O.L.C. __, at *4–10 (Jan. 19, 2021). In some prior
cases, the Court would begin its preemption analysis “with the assumption

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50 Op. O.L.C. __ (Mar. 3, 2026)

that the historic police powers of the States are not to be superseded by
the Federal Act unless that was the clear and manifest purpose of Con-
gress,” especially when Congress “legislated in a field traditionally occu-
pied by the States.” Altria Grp., Inc. v. Good, 555 U.S. 70, 77 (2008)
(cleaned up). Today, however, at least when a “statute contains an express
pre-emption clause,” the Court does “not invoke any presumption against
preemption but instead focus[es] on the plain wording of the clause.”
Puerto Rico v. Franklin Cal. Tax-Free Tr., 579 U.S. 115, 125 (2016)
(cleaned up).3 Of course, the existence of an express preemption clause
“does not immediately end the inquiry” into a federal law’s preemptive
effect. Altria Grp., 555 U.S. at 76. “[T]he question of the substance and
scope of [the] displacement of state law still remains.” Id. Determining
the scope of an express preemption provision turns on “the plain wording
of the clause.” Chamber of Com. of the U.S. v. Whiting, 563 U.S. 582, 594
(2011) (citation omitted).
Although express preemption clauses often “appear to operate directly
on the States,” their preemptive effect in truth operates by conferring on
private parties “a federal right to engage in certain conduct subject only to
certain (federal) constraints.” Murphy, 584 U.S. at 478–79. Federal law
regulating medical devices intended for human use, for example, express-
ly preempts state law by declaring that no state may establish “any re-
quirement . . . which is different from, or in addition to, any requirement
applicable under this chapter to the device.” 21 U.S.C. § 360k(a). This
provision appears to operate directly on states, but it actually confers on
medical-device manufacturers a federal right to be free from requirements
other than those imposed by the federal government.
Implied preemption operates in much the same way. “This mechanism
is shown most clearly in cases involving ‘conflict preemption.’” Murphy,
584 U.S. at 478. When federal law confers a right or imposes a restriction
on regulated parties, “state law is pre-empted to the extent that it actually
conflicts with federal law.” English v. Gen. Elec. Co., 496 U.S. 72, 79
(1990). Thus, “when a regulated party cannot comply with both federal

3 See also, e.g., Carson v. Monsanto Co., 72 F.4th 1261, 1267 (11th Cir. 2023) (en

banc); Cal. Rest. Ass’n v. City of Berkeley, 89 F.4th 1094, 1101 (9th Cir. 2024). But see
AbbVie, Inc. v. Fitch, 152 F.4th 635, 645 (5th Cir. 2025) (per curiam) (continuing to apply
the presumption); Nwauzor v. GEO Grp., Inc., 127 F.4th 750, 767–68 (9th Cir. 2025)
(same).

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Preemptive Effect of DPA Order

and state directives, the Supremacy Clause tells us the state law must
yield.” Martin v. United States, 145 S. Ct. 1689, 1700 (2025); see also
Merck Sharp & Dohme Corp. v. Albrecht, 139 S. Ct. 1668, 1672 (2019).
The Supreme Court has found conflict preemption where, for example, it
was impossible for a pharmaceutical company to “comply with both its
state-law duty to strengthen the warnings” on the label for one of its drugs
“and its federal-law duty not to alter” the label for that same drug. Mut.
Pharm. Co. v. Bartlett, 570 U.S. 472, 480 (2013).
There are other forms of implied preemption, which we need not dwell
on here. Field preemption, for instance, “occurs when federal law occu-
pies a ‘field’ of regulation ‘so comprehensively that it has left no room for
supplementary state legislation.’” Murphy, 584 U.S. at 479 (quoting R.J.
Reynolds Tobacco Co. v. Durham County, 479 U.S. 130, 140 (1986)).
And obstacle preemption contemplates the displacement of state law
“where the challenged state law stands as an obstacle to the accomplish-
ment and execution of the full purposes and objectives” of federal law.
Arizona v. United States, 567 U.S. 387, 399 (2012) (citation and internal
quotation marks omitted). But we need not address those theories today;
when an executive order expressly or by conflict preempts state law,
resort to these other theories of implied preemption is unnecessary.

III.

The President may expressly or by conflict preempt certain state laws
by issuing an order under the DPA. We first situate the DPA within the
broader context of national-defense laws, explaining why it authorizes the
President to preempt state law. We then identify the particular provisions
that would most likely allow the President to preempt state law in the
circumstances presented here.

A.

“It is ‘obvious and unarguable’ that no governmental interest is more
compelling than the security of the Nation.” Haig v. Agee, 453 U.S. 280,
307 (1981) (quoting Aptheker v. Sec’y of State, 378 U.S. 500, 509 (1964)).
“Recognizing this fact, the Framers listed ‘providing for the common
defence’ as a motivating purpose for the Constitution,” Wayte v. United
States, 470 U.S. 598, 612 (1985) (cleaned up), conferring on the federal

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50 Op. O.L.C. __ (Mar. 3, 2026)

government a “complete delegation of authority” to ensure the Nation’s
safety, Torres v. Tex. Dep’t of Pub. Safety, 142 S. Ct. 2455, 2463 (2022).
This power is not “limited to the ‘context of an actual war.’” Id. at 2465
(citation omitted). It also includes the authority to act prophylactically—
the government may act to secure the national defense well before the
country’s safety is in peril. Cf. Dennis v. United States, 341 U.S. 494, 509
(1951) (“Obviously, the words cannot mean that before the Government
may act, it must wait until the putsch is about to be executed, the plans
have been laid and the signal is awaited.” (emphasis omitted)). Because
national defense is vested exclusively in the federal government, “the
structure of the Constitution prevents States from frustrating national
objectives in this field.” Torres, 142 S. Ct. at 2464. Even legitimate state
interests generally must yield to the common defense of the Nation, for
the Constitution “is not a suicide pact.” Kennedy v. Mendoza-Martinez,
372 U.S. 144, 160 (1963).
In providing for the common defense, Congress and the President have
“time and again, as exigencies arose,” taken actions that have displaced
ordinary state laws, such as those pertaining to property or torts. Bank
Markazi v. Peterson, 578 U.S. 212, 235 (2016). Following World War II,
for example, the Renegotiation Act allowed the federal government “to
recover excess profits” on wartime contracts—even with respect to con-
tracts between two private parties rather than only those “made directly
with the Government.” Lichter v. United States, 334 U.S. 742, 788–89
(1948). The Court upheld “the right of the Government to recover excess
profits on” such contracts, id. at 789, emphasizing the wartime exigencies
that necessitated the legislation, see id. at 754–72. The Court subsequently
sustained President Carter’s decision to nullify attachments and liens on
Iranian assets in the United States and to direct that those assets be trans-
ferred to Iran. See Dames & Moore v. Regan, 453 U.S. 654, 660, 674
(1981). In doing so, the Supreme Court emphasized that the International
Emergency Economic Powers Act (“IEEPA”), Pub. L. No. 95-223, 91
Stat. 1626, “delegate[d] broad authority to the President to act in times of
national emergency with respect to property of a foreign country.” 453
U.S. at 677. And because IEEPA authorized the actions taken, the Court
upheld the nullification of the attachments and the transfer of the assets,
traditional property rules notwithstanding. Id. at 674.

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Preemptive Effect of DPA Order

Modelled on “the First and Second War Powers Acts of 1941 and 1942,
which gave the [E]xecutive [B]ranch broad authority to regulate industry
during World War II,” the DPA is yet another example of Congress dele-
gating to the President powers to regulate domestic policy for the national
defense. Alexandra G. Neenan, Cong. Rsch. Serv., R43767, The Defense
Production Act of 1950: History, Authorities, and Considerations for
Congress at 2 (updated Oct. 6, 2023), https://www.congress.gov/crs-
product/R43767 [https://perma.cc/S6L9-UUJE]. The DPA differs from
those earlier statutes, however, in one key respect: Although its predeces-
sor statutes conferred sweeping authority upon the President during
wartime, the DPA “is not an ‘emergency’ statute.” Legal Authorities
Available to the President to Respond to a Severe Energy Supply Inter-
ruption or Other Substantial Reduction in Available Petroleum Products,
6 Op. O.L.C. 644, 662 (1982) (“Energy Supply Interruption”). Instead, it
includes power to act prophylactically. Congress recognized that “the
security of the United States is dependent on the ability of the domestic
industrial base to supply materials and services for the national defense.”
50 U.S.C. § 4502(a)(1). The Act thus vests “the President with an array of
authorities,” all designed “to maintain and enhance the domestic industrial
base.” Id. § 4502(a)(4). The President may use those authorities “whether
or not an ‘emergency’ situation exists.” Energy Supply Interruption, 6 Op.
O.L.C. at 662.
The DPA confers “broad and flexible” authority on the President to
regulate private parties and preempt contrary state law. Id. (quoting H.R.
Rep. No. 81-2759, at 4 (1950)). In general terms, section 4511 authorizes
the President to control the distribution of materials, services, and facili-
ties, and to require entities to prioritize the performance of some contracts
over others, as “necessary or appropriate to promote the national defense”
or “to maximize domestic energy supplies.” 50 U.S.C. § 4511(a), (c).
And because the President may regulate and direct private conduct when
exercising such authority, he may also necessarily displace contrary
state law.
And lest there be any doubt, the DPA makes explicit that orders issued
pursuant to the Act displace state-law liability. It provides that “[n]o
person shall be held liable for damages or penalties for any act or failure
to act resulting directly or indirectly from compliance with a rule, regula-
tion, or order issued pursuant to this chapter.” Id. § 4557. Such immunity

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50 Op. O.L.C. __ (Mar. 3, 2026)

from liability exists even when the related DPA rule, regulation, or order
is subsequently “declared by judicial or other competent authority to be
invalid.” Id. Section 4557 is an express preemption provision, even
though it does not appear to operate directly on state law. See Murphy,
584 U.S. at 478. “It confers on private entities . . . a federal right to en-
gage in certain conduct”—conduct required by a DPA order—“subject
only to certain (federal) constraints,” not constraints imposed by state law.
Id. at 478–79.
The provisions in section 4511 authorizing the President to issue regu-
latory (and thus preemptive) orders are united by a central principle:
necessity. At a high level, section 4511(a) allows the President to require
the prioritized performance of certain contracts or to allocate materials
and other resources as he considers “necessary or appropriate to promote
the national defense.” 50 U.S.C. § 4511(a)(1)–(2). Section 4511(c) simi-
larly allows the President to require the priority performance of certain
contracts or allocate materials and resources “in order to maximize do-
mestic energy supplies.” Id. § 4511(c)(1). Ensuring the availability of
such energy supplies, the DPA makes clear, is “necessary and appropri-
ate” to secure “national defense preparedness.” Id. § 4502(a)(5).
Necessity has long functioned as a defense to private liability under
state law. When an otherwise tortious action—like trespass or conver-
sion—is necessary to avoid “public disaster,” the actor will not be held
liable under tort law. See Restatement (Second) of Torts § 196 (1965)
(trespass); id. § 262 (conversion); see also id. § 892D (describing the
emergency doctrine). Necessity similarly excuses contractual non-
performance when supervening events make performance impracticable
or frustrate the contract’s purpose. See Restatement (Second) of Contracts
§ 261 (1981) (discharge by supervening impracticability); id. § 265 (dis-
charge by supervening frustration). And force majeure clauses typically
“relieve a party from its contractual duties when its performance has been
prevented by a force beyond its control.” JN Contemp. Art LLC v. Phillips
Auctioneers LLC, 29 F.4th 118, 123 (2d Cir. 2022) (citation omitted).
Necessity even may excuse liability for criminal conduct: “Every Ameri-
can jurisdiction, without exception, has adopted the necessity defense in
its criminal jurisprudence.” Shaun P. Martin, The Radical Necessity
Defense, 73 U. Cin. L. Rev. 1527, 1535 (2005).

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Preemptive Effect of DPA Order

The DPA operates on parallel logic to preempt state private law. When
compliance with a presidential DPA order would otherwise violate state
law—whether by causing tortious injury or breaching contractual obliga-
tions—the Act displaces that liability in the name of national defense. See
50 U.S.C. § 4557. Indeed, the DPA expressly contemplates reprioritizing
contractual commitments for national-defense interests, notwithstanding
that doing so may cause a party to breach its obligations under state
contract law. See id. § 4511(a)(1), (c).
The DPA’s displacement of state regulatory law follows from the same
principle. State regulation often accomplishes ex ante what private law
accomplishes ex post—the mitigation of social costs. See Susan Rose
Ackerman, Regulation and the Law of Torts, 81 Am. Econ. Rev. 54, 54
(1991). The means are different, but the purpose is the same. For example,
a state licensing regime and common-law negligence each address the risk
of substandard professional conduct. Environmental regulations and
common-law nuisance claims each address pollution and its harmful
effects. Cf. Samuel Issacharoff, Regulating After the Fact, 56 DePaul L.
Rev. 375, 380 (2007) (“The key is that both ex ante and ex post review
are essential parts of the regulatory model—sometimes operating in
tandem, sometimes as substitutes.” (emphasis omitted)). The DPA con-
templates the preemption of ex ante regulations much as it contemplates
the preemption of ex post private-law remedies, all in the name of necessi-
ty. After all, although the interests protected by state regulation are doubt-
lessly important, “[f]ew interests can be more compelling than a nation’s
need to ensure its own security.” Wayte, 470 U.S. at 611.
“Necessity” is not, of course, a constitutional prerequisite for Congress
to confer on the President preemptive authority. But the Act functions
as the Nation’s necessity defense to state law. And under the DPA,
the President possesses broad discretion to determine when to invoke
that immunity, see 50 U.S.C. § 4511(a), (c), for it is the President
who possesses the institutional competence to make such judgments
on behalf of the Nation, see id. § 4502(a)(4); see also Holder v.
Humanitarian L. Project, 561 U.S. 1, 33 (2010) (emphasizing the need to
defer to the “evaluation of the facts by the Executive” in the national-
security context).

13
50 Op. O.L.C. __ (Mar. 3, 2026)

Moreover, such a finding of necessity is likely immune from judicial
review under the Administrative Procedure Act (“APA”) and other stat-
utes, even if the Secretary makes the determination by exercising delegat-
ed presidential power. 4 Under the APA, “agency action is not subject to
judicial review to the extent that such action is committed to agency
discretion by law.” Lincoln v. Vigil, 508 U.S. 182, 190–91 (1993) (citation
and internal quotation marks omitted). Review of an agency determination
“is not to be had in those rare circumstances where the relevant statute is
drawn so that a court would have no meaningful standard against which to
judge the agency’s exercise of discretion.” Id. at 191 (citation and internal
quotation marks omitted). Section 4511(a) clearly commits action to the
discretion of the President or his delegee, allowing the decisionmaker to
allocate materials “to such extent as he shall deem necessary or appropri-
ate.” 50 U.S.C. § 4511(a)(2) (emphasis added); see also id. § 4511(a)(1).
In Webster v. Doe, the Supreme Court construed similar language to
preclude APA review. 486 U.S. 592 (1988). The provision at issue al-
lowed “termination of [a Central Intelligence] Agency employee whenev-
er the Director ‘shall deem such termination necessary or advisable in the
interests of the United States,’ not simply when the dismissal is necessary
or advisable to those interests.” Id. at 600 (emphases in original). The
Court concluded that this provision “foreclose[d] the application of any
meaningful judicial standard of review.” Id. So too here, especially given
the national-security context, where the Executive Branch traditionally
wields broad and often-unreviewable discretion. See Dep’t of the Navy v.
Egan, 484 U.S. 518, 527, 529–30 (1988); Lee v. Garland, 120 F.4th 880,
886 (D.C. Cir. 2024).

B.

As we have emphasized, the DPA immunizes entities from liability “for
damages or penalties” stemming from “any act or failure to act resulting
directly or indirectly from compliance” with an order issued under the
Act. 50 U.S.C. § 4557. Three provisions of 50 U.S.C. § 4511 authorize
the President to direct that Sable resume production of the SYU and

4 The APA does not apply to the President, although “the President’s actions may still

be reviewed for constitutionality.” Franklin v. Massachusetts, 505 U.S. 788, 801 (1992).

14
Preemptive Effect of DPA Order

operate the associated pipeline infrastructure. An order issued under one
of these provisions could preempt state law either expressly or by conflict.
We address these provisions in the order best suited to our analysis: We
start with the President’s allocation authority under section 4511(a)(2); we
then discuss his prioritization authority under section 4511(a)(1); and we
conclude with his energy-production authority under section 4511(c).

1.

We consider first the President’s allocation authority under sec-
tion 4511(a)(2). That provision authorizes the President “to allocate
materials, services, and facilities in such manner, upon such conditions,
and to such extent as he shall deem necessary or appropriate to promote
the national defense.” 50 U.S.C. § 4511(a)(2). The term “materials”
encompasses “any raw materials (including minerals, metals, and ad-
vanced processed materials), commodities, articles, components (includ-
ing critical components), products, and items of supply,” as well as “any
technical information or services ancillary to the use of any such
materials, commodities, articles, components, products, or items.” Id.
§ 4552(13). The term “services” includes “any effort that is needed for or
incidental to”: (A) “the development, production, processing, distribution,
delivery, or use of an industrial resource or a critical technology item”;
(B) “the construction of facilities”; (C) “the movement of individuals and
property by all modes of civil transportation”; or (D) “other national
defense programs and activities.” Id. § 4552(16).5 And the “term ‘facili-
ties’ includes all types of buildings, structures, or other improvements to
real property . . . , and services relating to the use of any such building,
structure, or other improvement.” Id. § 4552(8). In the light of these broad
definitions, we have previously opined that this section could “be used to
facilitate petroleum transportation,” such as “by requiring pipelines,
marine terminals, and other facilities to perform oil transport contracts
necessary or appropriate to promote the national defense.” Energy Supply
Interruption, 6 Op. O.L.C. at 665.

5 Moreover, the phrase “industrial resources” as used in the Act means “materials, ser-

vices, processes, or manufacturing equipment (including the processes, technologies, and
ancillary services for the use of such equipment) needed to establish or maintain an
efficient and modern national defense industrial base.” 50 U.S.C. § 4552(12).

15
50 Op. O.L.C. __ (Mar. 3, 2026)

The President could expressly preempt California law through an order
issued under this section. Section 4511(a)(2) authorizes the President to
allocate materials, services, and facilities “in such manner” and “to such
extent as he shall deem necessary or appropriate to promote the national
defense.” 50 U.S.C. § 4511(a)(2). This sweeping language allows the
President to preempt contrary state law by ordering Sable to produce the
recoverable oil located on the SYU and transport such production to the
California refinery complex using the Santa Ynez Pipeline System. That
conclusion follows directly from the capacious definitions of “materials,”
“services,” and “facilities.” See id. § 4552(8), (13), (16). The production
and transportation of such oil—a “material”—is plainly a “service” within
the meaning of the Act. See id. § 4552(13), (16). The Santa Ynez Pipeline
System is, in our view, a facility within the meaning of the DPA, because
it is an “improvement[] to real property,” and operation of the pipeline
system is a service “relating to the use” of that improvement. Id.
§ 4552(8). A DPA order could thus declare on its face that particular
California environmental regulations, permitting requirements, or other
restrictions are preempted with respect to Sable’s production on the SYU
and operation of the Santa Ynez Pipeline System. Indeed, if the President
were to find that Sable being noncompliant with particular state laws is
“necessary” to promote the national defense, id. § 4511(a)(2), he could
instruct Sable to disregard state laws that would otherwise frustrate its
obligations under the order.
One might suggest that the word “allocate” in section 4511(a)(2) allows
the President only to distribute resources, not to compel their production.
But that reading ignores critical statutory language. Section 4511(a)(2)
authorizes the President to allocate not just materials but also “ser-
vices”—which the Act defines to include “any effort that is needed for
or incidental to” the “development” or “production” of “an industrial
resource.” Id. § 4552(16). The President’s power to allocate services thus
includes the power to allocate productive capacity itself. Moreover,
section 4511(a)(2) grants the President discretion to allocate services “in
such manner, upon such conditions, and to such extent as he shall
deem necessary or appropriate,” id. § 4511(a)(2), making clear that the
President may determine how and to what degree to allocate productive
capacity. That discretion necessarily entails the authority to compel
production, not just to allocate materials that already exist. See, e.g.,

16
Preemptive Effect of DPA Order

Johnson v. Tyson Foods, Inc., 580 F. Supp. 3d 382, 389 (N.D. Tex. 2022)
(holding that the President’s allocation authority under the DPA allowed
him to require meat facilities to remain open during the COVID-19
pandemic and preempt state tort law); see also Reed v. Tyson Foods, Inc.,
No. 21-cv-01155, 2021 WL 5107725, at *6 (W.D. Tenn. Nov. 3, 2021)
(“Because the purpose of the DPA cannot otherwise be accomplished
while allowing states to implement their own, potentially inconsistent
policy decisions for meat and poultry processor operations during the
COVID-19 pandemic, the state law must yield.” (cleaned up)). Indeed,
an allocation order can “require[] a person to take or refrain from taking
certain actions,” including with respect to production of a resource.
15 C.F.R. § 700.33(b).
Our reading is also consistent with the DPA’s context and history. The
Act was modeled on the War Powers Acts, which conferred on the Presi-
dent sweeping authority to regulate industry during wartime. See Neenan,
supra, at 2. And a critical component of wartime authority is ensuring
adequate productive capacity. The DPA supplies comparable authority but
before the outbreak of any conflict. When enacting the DPA, Congress
found “the development of domestic productive capacity” critical for
ensuring the national defense, 50 U.S.C. § 4502(a)(3), and similarly found
it necessary “to assure the availability of domestic energy supplies,” id.
§ 4502(a)(5). These congressional findings would mean little if the
President could only shuffle existing inventory rather than direct facilities
to produce energy.6
We emphasize that the precise preemptive scope of a presidential order
would depend upon the language employed in relation to the obligations
imposed by state law. We cannot opine on the preemptive reach of an
order not yet drafted. Moreover, because “hypothetical or potential
conflict is insufficient” to preempt state law by conflict, the wording

6 The President’s authority to compel production is even more pronounced under sec-

tion 4511(c), which allows the President to use the allocation power “in order to maxim-
ize domestic energy supplies.” 50 U.S.C. § 4511(c)(1). We discuss section 4511(c) in
greater detail below, but the word “allocate” must be “given more precise content by the
neighboring words with which it is associated,” Fischer v. United States, 144 S. Ct. 2176,
2183 (2024) (citation omitted), and “identical words and phrases within the same statute
should normally be given the same meaning,” Powerex Corp. v. Reliant Energy Servs.,
Inc., 551 U.S. 224, 232 (2007).

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50 Op. O.L.C. __ (Mar. 3, 2026)

of any DPA order will affect the scope of conflict preemption. Rice v.
Norman Williams Co., 458 U.S. 654, 659 (1982). 7 According to Sable,
“California agencies have deployed an array of state measures . . . to
block pipeline operations,” including “[enforcement of California]
SB 237, the state waiver process, novel interpretations of state agency
jurisdiction and authority, [and] excessive delay in granting a long-term
easement through a state park for an existing pipeline.” Sable Letter at 6.
If such state measures make it impossible for Sable immediately to
resume production and distribution of oil located on the SYU, they would
be displaced as a matter of conflict preemption if a presidential order
directed Sable to resume production immediately. Such an order would
“irreconcilably conflict” with the terms of California state law. Merck
Sharp & Dohme Corp., 139 S. Ct. at 1679 (cleaned up).

2.

The President’s prioritization authority under section 4511(a)(1) also
allows him to preempt state law. Section 4511(a)(1) authorizes the Presi-
dent “to require that performance under contracts or orders” that “he
deems necessary or appropriate to promote the national defense shall take
priority over performance under any other contract or order.” 50 U.S.C.
§ 4511(a)(1). Recall that “[i]n executing a contract under the DPA, a
contractor is not liable for actions taken to comply with” a presidential
order issued pursuant to the Act. Neenan, supra, at 6. Moreover, the
President can also “prioritize the performance of contracts between two
private parties.” Id.
The President could issue an order under section 4511(a)(1) to express-
ly preempt certain state laws that, in the President’s judgment, would
impair or delay prioritized contract performance. See E. Air Lines, Inc. v.

7 The DPA immunizes entities from liability for any act “resulting directly or indirect-

ly from compliance” with an order issued under the Act. 50 U.S.C. § 4557 (emphasis
added). It is thus possible that a DPA order might preempt state law to the extent that an
entity’s compliance with that order would result—even indirectly—in a breach of state
law. Section 4557’s immunity for acts resulting indirectly from compliance with a DPA
order suggests that Congress anticipated that DPA orders might engender conflict with
other legal obligations, even where dual compliance remains technically possible. But it is
not necessary for us in answering your question to decide whether the DPA in effect
lowers the standard for conflict preemption, so we do not decide it here.

18
Preemptive Effect of DPA Order

McDonnell Douglas Corp., 532 F.2d 957, 993 (5th Cir. 1976) (“Congress
intended to accord the Executive Branch great flexibility in molding its
priorities policies to the frequently unanticipated exigencies of national
defense.”). The President could, for instance, instruct that Sable’s con-
tracts for oil production and transportation take priority over Sable’s other
contractual obligations and expressly preempt California environmental
regulations insofar as they would impede that prioritized performance. By
naming the preempted state laws on the face of the order, the President
would eliminate any doubt about which legal requirements must give way
to defense needs under the terms of the order.
An order issued under section 4511(a)(1) might also displace state con-
tract law—which is often judge-made rather than statutory—by conflict.
If the President requires that performance of certain contracts be priori-
tized over performance under any other contract or purchase order, state
law rendering that prioritization impossible would be preempted. Cf.
Memorandum for the Files, from Henry C. Whitaker, Principal Deputy
Assistant Attorney General, Office of Legal Counsel, Use of the Defense
Production Act and the International Emergency Economic Powers Act to
Regulate Industry During the Early Stages of the COVID-19 Pandemic
at 5–6 (Jan. 18, 2021). As we have explained, conflict preemption is a
demanding standard; if Sable could prioritize the designated contracts
while also complying with state law, state law would not necessarily be
preempted. But cf. 50 U.S.C. § 4557 (shielding entities from liability for
any act “resulting directly or indirectly from compliance” with a DPA
order). But if state law would render Sable incapable of prioritizing the
designated contracts, that state law would be displaced.

3.

Finally, section 4511(c) allows the President to preempt state law by
wielding the allocation and prioritization powers “to maximize domestic
energy supplies”—even in the absence of a national-defense finding.
See Energy Supply Interruption, 6 Op. O.L.C. at 668 (citation omitted). 8

8 When updating our 1982 advice about the DPA in 2021, we wrote that “the
powers granted in” section 4511 are “limited by” section 4511(b). Memorandum
for Stuart F. Delery, Deputy Counsel to the President, Executive Office of the President,
from Martin S. Lederman, Deputy Assistant Attorney General, Office of Legal

19
50 Op. O.L.C. __ (Mar. 3, 2026)

Section 4511(c) allows the President, upon making certain other findings,
to “require the allocation of, or the priority performance under contracts
or orders . . . relating to, materials, equipment, and services in order to
maximize domestic energy supplies.” 50 U.S.C. § 4511(c)(1). The words
“materials” and “services” have the same capacious meanings as de-
scribed above. See id. § 4552(13), (16).
The preemption analysis under section 4511(c) parallels that of the two
provisions described above. In a directive requiring Sable to resume
production and distribution of oil from the SYU, the President could
exempt Sable from compliance with particular state laws, especially if the
President were to find that compliance with such laws would threaten the
ability to “maximize domestic energy supplies.” Id. § 4511(c)(1). At
minimum, an executive order would displace conflicting California law
under traditional conflict-preemption principles, with the scope of
preemption turning on the order’s specific terms.

IV.

State law, we have been advised, is not currently the only impediment
to Sable’s ability to resume production and transportation of oil. A con-
sent decree entered in United States v. Plains All American Pipeline L.P.,
No. 20-cv-02415 (C.D. Cal. Oct. 14, 2020), Dkt. 33 (“Consent Decree”),
“currently vests authority over resumption of transportation through the
onshore portions of the Santa Ynez Pipeline System with the California
Office of the State Fire Marshal.” Sable Letter at 9. We have been advised
that, in addition to the United States and various State of California
entities, Sable is a party to the Consent decree as a result of an acquisi-
tion. You have asked whether an executive order under the DPA would
displace these provisions of the Consent Decree, even though there are
both federal- and state-law claims at issue in that case. For three reasons,
we think it would.

Counsel, Re: Preliminary Review of Possible Legal Authorities Related to the Cyberattack
Targeting the Colonial Pipeline at 10 (May 12, 2021). But section 4511(c)(1) applies
“[n]otwithstanding any other provision of this chapter.” 50 U.S.C. § 4511(c)(1). To the
extent that our more recent advice inadvertently suggested that section 4511(b) would
limit the President’s authority under section 4511(c), we take this opportunity to disclaim
that suggestion.

20
Preemptive Effect of DPA Order

First, section 4557 would likely immunize Sable from needing to
satisfy these provisions of the Consent Decree if acting to comply with
a DPA order. The Consent Decree includes a “stipulated penalties” provi-
sion for violations of its requirements. See Consent Decree at 27. But
section 4557 provides that “[n]o person shall be held liable for damages
or penalties for any act or failure to act resulting directly or indirectly
from compliance with a rule, regulation, or order issued pursuant to this
chapter.” 50 U.S.C. § 4557. Thus, Sable would be immune from any
penalties—including those imposed under the Consent Decree—for “any
act or failure to act resulting directly or indirectly from compliance with”
a DPA order. Id.
Section 4557 would also immunize Sable from liability for contempt
under such circumstances. See Consent Decree at 39 (leaving “contempt”
open as a sanction for violations). Civil contempt sanctions are “penalties
designed to compel future compliance” with a consent decree. Int’l Union,
United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 827 (1994); see
also Lackey v. Stinnie, 145 S. Ct. 659, 671 (2025) (“Violation of a consent
decree is enforceable by a citation for contempt.”). Civil contempt sanc-
tions can take the form of monetary fines or sentences of imprisonment.
See Hicks ex rel. Feiock v. Feiock, 485 U.S. 624, 631–32 (1988). Mone-
tary fines to compel future compliance with the Consent Decree here, of
course, may not be imposed for any act or omission resulting from com-
pliance with a DPA order. See 50 U.S.C. § 4557. So too for sentences of
imprisonment imposed for the same reason. The word “penalty” meant “a
punishment imposed or incurred for a violation of law or rule.” The Amer-
ican College Dictionary 895 (1948 ed.); see also Webster’s New Colle-
giate Dictionary 621 (2d ed. 1956) (“Webster’s”); The Oxford Universal
Dictionary 1462 (3d ed. 1955). Nor was the word “liable” limited to
monetary liability. See, e.g., Webster’s at 484 (“Bound or obliged by law
or submission to other forces; answerable”). And limiting the word “pen-
alties” to only monetary fines would be incongruous with the rest of
section 4557 and the DPA more broadly, which ensure that the President
can displace impediments to productive capacity when necessary. Indeed,
it would be anomalous to think that section 4557 forbids the imposition of
monetary fines but not the harsher penalty of imprisonment.
Second, a DPA order could constitute a force majeure under the Con-
sent Decree. In particular, the Consent Decree defines a force majeure “as

21
50 Op. O.L.C. __ (Mar. 3, 2026)

any event arising from causes beyond the control of Defendants . . . that
delays or prevents the performance of any obligation under this Consent
Decree despite Defendants’ best efforts to fulfill the obligation.” Consent
Decree at 35. The issuance of a DPA order would likely constitute an
“event” arising from causes beyond the control of Sable, and complying
with the order might delay or prevent the performance of Sable’s obliga-
tions under the Consent Decree.
Third, the issuance of a DPA order might also constitute changed cir-
cumstances sufficient to require modification of the Consent Decree. A
consent decree “must” be modified if one of its obligations “has become
impermissible under federal law.” Rufo v. Inmates of Suffolk Cnty. Jail,
502 U.S. 367, 388 (1992). And as we have explained, a DPA order has the
force of federal law. If a DPA order requires Sable to take an action that is
prohibited by the Consent Decree, the Consent Decree likely must be
modified.

* * * * *

The DPA authorizes the President to regulate private entities in ways
that may be inconsistent with state law. An order issued under that author-
ity could preempt state law either expressly or by conflict. And it may
displace certain provisions of the Consent Decree described above, in-
cluding those vesting authority over resumption of transportation with the
California Office of the State Fire Marshal.

T. ELLIOT GAISER
Assistant Attorney General
Office of Legal Counsel

22

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11270256. Public record. Not legal advice.