Federal judge raises issues with states’ lawsuit against Trump offshore wind freeze

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BOSTON — More than a dozen states, including Massachusetts, have an uphill battle if they’re to succeed in their legal efforts to lift President Donald Trump’s memorandum against offshore wind development.

Attorneys for the states of Massachusetts and New York appeared on Thursday before federal Judge William G. Young, prepared to argue that he should grant a preliminary injunction against the Trump administration’s effective freeze of offshore wind permitting. But the hearing didn’t happen, with the judge “collapsing” the injunction motion.

Young said he needed more specificity from the states on the harm they’ve incurred and the alleged legal violations by federal agencies. The case will be heard again next week, but instead, with a hearing on a motion to dismiss it. (The judge is treating the Trump administration’s filing opposing a preliminary injunction as a motion to dismiss the case.)

“I’m not clear again… that I understand what the specific harm is,” Young said, noting he understands there have been economic impacts on “an important industry.” “But in the context of litigation, I need, I think, some more specificity as to what are the specific harms to specific projects in specific states.” 

“It would appear both from the record and from the president’s public statements that he’s opposed as a matter of policy to offshore wind farm energy generation. I think that’s indisputable,” Young continued. 

In that vein, Young asked whether the requisite licenses would be issued by the federal government following a court ruling, given the administration’s position on wind. Experts interpreted “licensing” to regard permitting and permits. 

Timothy Fox, an analyst at ClearView Energy Partners, said Young’s remarks “strongly suggested that the Trump Administration may prevail.”

“Perhaps most significant,” Fox said by email on Thursday, the judge appeared to declare that ‘the power to license is the power to withhold a license.’” 

Young’s points echoed some of those raised by the Trump administration in its May 29 filing opposing the preliminary injunction request.

“Plaintiffs and Intervenor fail to show standing, fail to identify any final agency action on which to base their claims, fail to identify statutory violations on the part of Defendants, disregard the considerable agency discretion and flexibility in the relevant statutory regimes, and otherwise fail to state a claim,” stated the U.S. Department of Justice. 

“The challenged agency action must be ‘final,’” the DOJ wrote, final being defined as the “‘consummation’ of the agency’s decisionmaking process.”

Of Trump’s wind memo, the DOJ states “it simply defers the issuance of authorizations until completion of a later substantive assessment and review … An interim decision to merely postpone the permit decisionmaking process is not final agency action.”

If the injunction had been granted, it could immediately undo the permitting freeze, but it could not force federal agencies to immediately issue the outstanding permits or move forward with review at a faster rate sought by the industry (and a rate achieved by the Biden administration). 

“Even if the court were to side with the states, we would describe that ‘win’ as more symbolic than significant because BOEM retains substantial discretion regarding the pace at which it fulfills its responsibilities,” Fox, the analyst, said. “In other words, we see little tangible difference between the current declared freeze of offshore wind activities and a potential de facto pause that would likely follow a court-compelled resumption.”

Trump’s memo, issued on day one of his second term, directs the secretary of the interior to “conduct a comprehensive review of the ecological, economic, and environmental necessity of terminating or amending any existing wind energy leases, identifying any legal bases for such removal, and submit a report with recommendations to the President.”

There is no timeline for this review, effectively making the freeze indefinite. Though, as the federal government argued, the review is not “final,” it can have lasting and potentially irreversible impacts on wind projects, which require certainty for financial investment and operate with tight contract windows.

Representatives from Ocean Winds (which is building SouthCoast Wind off Massachusetts) were present in the courtroom, with Ocean Winds CEO Michael Brown taking notes during Young’s remarks. 

SouthCoast Wind was potentially within months of receiving final permits, but progress stopped when the wind memo was issued. The federal government’s permitting dashboard has again extended the “completion date” of its agency review of the project’s permits, citing the memo. 

In its opposition motion, the DOJ stated the extension of the permitting deadlines, such as that for SouthCoast Wind, is “not the consummation of any permit decisionmaking process” and that the “decisionmaking process continues to play out.”

Acting Associate Director of the Bureau of Ocean Energy Management’s renewable energy program, Jessica Stromberg, in a May 29 filing, seemed to straddle federal inaction and action regarding project review. 

Quoting the presidential memorandum, Stromberg wrote that agencies have been directed to ‘not issue new or renewed approvals, rights of way, permits, leases … pending the completion of a comprehensive assessment and review of Federal wind leasing and permitting practices.’” 

But, she also said that BOEM renewable energy staff continue to review wind developer applications and “complete other day-to-day tasks related to the offshore wind program including but not limited to regular communications with lessees, State officials, and cooperating agencies.” (Several BOEM renewable energy staffers have resigned or been affected by federal cuts, according to LinkedIn posts.)

Thursday’s hearing was the first in the multistate lawsuit filed last month in Massachusetts federal court by the commonwealth and 17 other attorneys general in states that already have offshore or land-based wind projects, or plan to develop them. 

Turner Smith, deputy attorney general for Massachusetts, sat alongside Michael Myers, an attorney for New York. Smith’s comments were brief, but she said on behalf of the plaintiffs that they would like to confer amongst themselves and may submit an amended complaint in advance of the motion to dismiss hearing, set for next Wednesday. 

The Massachusetts AG’s office declined comment, stating it would let Smith’s comments in court “speak for themselves.” The New York State Attorney General’s office did not return requests for comment before publication.

What’s at stake

The states argue they stand to lose jobs and hundreds of millions in investment and benefits (and stranded assets) if the industry cannot continue its buildout under the Trump administration.

Impacts have been swift and concerning, per state officials and the industry. The multibillion Empire Wind project in New York is a clear example — in the works for eight years, it was on the verge of collapse after just 30 days of a federal freeze on the project’s construction. (The Trump administration last month lifted the ban and construction has resumed.) 

According to a declaration filed in the suit by Liz Burdock, who leads the Oceantic Network, a member-based coalition of offshore wind companies and suppliers, U.S. workers have already been laid off (the spate of LinkedIn posts from wind industry sector employees supports this), hundreds of millions of dollars in private investment is at risk, and trained and hired workers are being forced to stand idle.

Burdock stated her organization only identified three new contracts announced or signed after the wind directive on Jan. 20 through May 1, a steep drop compared to a quarterly average of 58 new contracts in 2024. 

Erica Fuller, a senior attorney with the Conservation Law Foundation, which filed an amicus in the case in support of the states, explained Young’s “collapsing” of the injunction motion is a method allowed by procedural rules, and is “one path to resolve the case quickly, also allowing a quick appeal.” 

Throughout Thursday’s session, Young acknowledged the importance of resolving the case expeditiously, as sought by the plaintiffs.

Fuller said “the standard of review is favorable” to the states, but agreed Young identified some key challenges for the states, including identifying specific statutory violations, providing specific evidence of harm, and addressing, without being speculative, whether the permits “will even be issued in light of this administration’s position on offshore wind.”

Thursday’s session lasted just under 30 minutes. Arguments on whether to dismiss the case are scheduled for June 11, with the federal government arguing first. Young suggested he could decide the case that same day, and expressed hope that the parties would attempt to come to an agreement ahead of him issuing a ruling. 

Email Anastasia E. Lennon at alennon@newbedfordlight.org.

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