|
Getting your Trinity Audio player ready...
|
BOSTON — A federal judge on Wednesday issued a tentative ruling, partially allowing and partially denying the Trump administration’s motion to dismiss the multistate lawsuit against its freeze on offshore wind permitting and leasing — a consequential case for the industry and the coastal states relying on it to supply electricity amid growing grid demand in the coming decades.
Judge William G. Young ruled that the states have standing to bring this case, and that the permitting freeze – which has been given no deadline or timeline – is essentially a final agency decision (as opposed to an ongoing review) and as such, can be challenged by the states.
Still, he continues to express concern as to how a lifting of the freeze would consequently lead to government agencies issuing the outstanding permits to wind developers. (In the words of the federal government in its filing, “they would not” automatically issue.)
For example, SouthCoast Wind received final project approval, but it still needs three federal permits, which were previously set to issue in March, before construction can start.
The lawsuit will tentatively proceed to a motion for summary judgment in September, for which the federal government must submit administrative records to the court that document its decision to implement the wind order by July 2.
The records filed could shed some light on what has been an opaque, multi-agency “review” led by the Interior Department on all offshore wind projects. (The Trump administration previously cited findings from this review to support its halting of Empire Wind construction, but refused to release the records it purportedly uncovered in support of that action.)
The documents submitted should capture the thinking and decision making that went into the enactment of the Jan. 20 memo, in turn helping the judge determine whether the action is supported and comports with the relevant laws.
U.S. Department of Justice attorney Michael Robertson, arguing on behalf of the federal government, expressed concern that a two-week window is too tight to prepare the records and questioned what they’d be building an administrative record of.
Young responded that someone drafted the wind memo (in other words, there are records on this), and that two weeks is sufficient to gather the materials.
The Light previously reported that the 17 states (and the District of Columbia) had an uphill battle to succeed in their lawsuit, after Young raised several issues with the states’ initial complaint. Based on Young’s comments and questions during Wednesday’s hearing, some of those concerns still remain.
In addition to Massachusetts, attorneys general from Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Minnesota, New Jersey, New York, New Mexico, Oregon, Rhode Island, and Washington and the District of Columbia are parties to the suit.
Young has tentatively dismissed the complaint against all federal defendants (including President Donald Trump) with the exception of Interior Secretary Douglas Burgum.
He made clear he reserves the right to alter his tentative rulings when he issues his written opinion.
Interior review still a black box
There is no timeline for the review mandated by Trump’s order, effectively making the freeze indefinite, which can have lasting and irreversible impacts on offshore wind projects that require certainty to secure financing and contracts.
At the outset of the hearing, Young asked Robertson how long this permitting pause is going to be, and if he couldn’t answer that, then what is a reasonable period for such a pause.
Robertson said he did not know how long it would take, and that he couldn’t say what a reasonable period would be. (He then cited a natural gas pause of 10 months during the Biden administration to show precedent, but again said he doesn’t know how long this review will take.)
Asked about the status of the Interior’s review, Robertson told a Light reporter “no comment” as he left the courtroom.
Massachusetts Deputy Attorney General Turner Smith, citing a filing from NOAA Fisheries, said in court that the agency was only in the early stages of assisting in the review. As of May 29 (four months into the freeze), the agency had identified staff to consult with the Interior, and those staff had at that point had only engaged in “preliminary coordination to prepare to support the assessment.”
“It’s cold comfort to hear one day and at some unknown time they may receive a permit,” said Smith.
Robertson told the judge that the involved federal agencies continue to review and analyze permit applications, and that this “temporary” halting only affects the “tailend” of the process.
“But nothing happens,” Young said. “They may be doing all these things. I assume they are coming to work and they are accomplishing things each week … but nothing has been issued at all since the wind directive … that’s the truth isn’t it?”
Robertson took this as an opportunity to use Empire Wind as an example of how things are “still happening” under the Trump administration. The U.S. Bureau of Ocean Energy Management took an unprecedented step of halting the fully permitted project in April just before it was to start offshore installation. About a month later, it reversed its action, allowing construction to resume — but not before almost killing the project.
The Trump administration argues the presidential memorandum “simply defers the issuance of authorizations” (in this case, permits to build the projects) “until completion of a later substantive assessment and review” and is not final, but an “interim decision” that postpones the permitting process. Young in his tentative ruling on Wednesday disagreed, and identified it as a final agency action, which the states argue.
The freeze has cost SouthCoast Wind tens of millions of dollars, according to the developer, and its delivery of electricity to Massachusetts and Rhode Island is now delayed two years – or until at least 2032, The Light reported last week.
SouthCoast Wind’s CEO Michael Brown attended the hearing on Wednesday with several other company officials. They huddled together after the hearing, as did the attorneys representing the states.
In a written statement, Brown said Ocean Winds North America (the project’s parent company of which he is also CEO) is “proud” to support the states in their effort.
“We are confident that the court will recognize the merits of the states’ case and affirm the fact that the companies looking to invest in large infrastructure projects in the U.S. can count on fair administrative law proceedings that cannot be arbitrarily and indefinitely delayed,” he said.
SouthCoast Wind and Avangrid’s New England Wind are approaching a June 30 deadline to finalize power purchase contracts with Massachusetts, but Brown and a state energy official said it would be impossible to execute the agreements with the memo in place.
Without immediate relief, the industry will continue to incur financial losses and possibly face ”insurmountable” delays, according to filings from the states.
Email Anastasia E. Lennon at alennon@newbedfordlight.org.
