On February 18, 2026, President Trump signed Executive Order No. 14387, Promoting the National Defense by Ensuring an Adequate Supply of Elemental Phosphorus and Glyphosate-Based Herbicides. This order affirms the administration’s emphasis on the protection of the domestic production of elemental phosphorus – which is widely used in both the defense and agriculture industries, serving as a key component in munitions and a critical precursor for phosphate-based fertilizers – finding that such production is central to American economic and national security. The ramifications of this order, which include “priority” status for government contracts and certain legal protections for entities subject to the order, are summarized below.
Background
This order is not the first indication of this administration’s increased emphasis on the domestic production of elemental phosphorus. The U.S. Department of the Interior previously recognized the crucial role of elemental phosphorus in the defense supply chain, designating phosphate as a “critical mineral” under the Energy Act of 2020. The president reaffirms this sentiment in the new order, and specifically extends this designation to glyphosate-based herbicides due to their importance in ensuring food-supply security.
New Protections
Recognizing this crucial role – and given the limited domestic production of this material – the order finds that domestic elemental phosphorus is a “scarce material” that is “critical to national defense and security.” Those key phrases place domestic elemental phosphorus and glyphosate-based herbicides within the scope of section 101(b) of the Defense Production Act of 1950 (the DPA) (50 U.S.C. § 4511(b)), which means that the president – or his delegee; in this case, the Secretary of Agriculture – has the authority to require priority performance of contracts or orders for those materials. See 50 U.S.C. § 4511(a).
Importantly, the order also confers immunity under section 707 of the DPA (50 U.S.C. § 4557), providing protections both for entities subject to the order and for the government itself. Under this provision, no “person” – broadly defined to include individuals, corporations and other legal and governmental entities – can be held liable for damages or penalties resulting from their compliance with any rules, regulations or orders issued pursuant to the DPA, even if those rules or orders are later invalidated. The order itself doubles down on these protections, expressly providing that “the Secretary shall ensure that any order, rule, or regulation issued under this section does not place the corporate viability of any domestic producer of elemental phosphorus or glyphosate-based herbicides at risk.” The statute also protects the government by prohibiting “discrimination” against priority orders, preventing producers and other entities from charging higher prices, imposing different terms or otherwise treating those orders differently from similar orders or contracts.
The order refers exclusively to “domestic producers” of elemental phosphorus and glyphosate-based herbicides, and thus, on its face, would appear to apply only to producers or manufacturers of these materials. However, there is no language in the order expressly excluding resellers of domestically produced glyphosate from its coverage. And the DPA applies its protections to “persons,” which is broadly defined such that it would encompass relevant business entities. Regardless, this order signals the continuation of a broader policy, which would seem to protect entities at all levels of the domestic supply chain.
What’s Next?
The takeaway from this order is twofold. First, the government can force performance of its contracts over other contracts. Second, businesses supplying materials or services under priority contracts can comply with government orders without fear of lawsuits if the regulations are later invalidated. Going forward, we should expect the current administration to continue its trend toward the protection of domestic elemental phosphorus and glyphosate-based herbicides. And, in the event priorities shift in the future beyond this administration, entities will nonetheless enjoy broad protection as a result of this order.
Lathrop GPM has deep roots in agribusiness and represents a wide range of clients in agriculture production, processing, manufacturing and related services. For any questions about this Executive Order or related business issues, please contact Stephanie Bradshaw, or your regular Lathrop GPM attorney.