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BOSTON — Massachusetts, and the wind projects that have invested millions to build off its coast, will have to wait a bit longer to see if a federal judge will provide any relief from President Donald Trump’s wind memorandum that has frozen offshore wind permitting for the last eight months.
Judge William G. Young, during a hearing on Thursday, again expressed some skepticism about the multistate lawsuit. In opening remarks, and during questioning to both parties, Young said that Trump has made his position against offshore wind very clear. So, if he were to rule in favor of the states (and against the memo), he asked what change it would make for the projects that have been stuck in permitting limbo.
“[Trump’s] view of the presidency is, those people who are subordinate to me are going to follow my instructions. That’s the presidency as we know it today,” Young said. “Given the president’s view, where does that get you? … He’ll tell [agencies] to deny [permits] and they will, because they have to follow orders.”
Massachusetts Deputy Attorney General Turner Smith in response said that although that may be true, the states will address it case by case and permit by permit, if necessary.
“They may decide to issue or deny a permit,” Smith said. “Our hope is that the agencies would take to heart that they are required to follow applicable law in processing and issuing these permits.”
U.S. Department of Justice attorney Michael Robertson, on behalf of the federal government, argued the states have not sufficiently proven violations of cited laws, and that if the judge were to rule in their favor, it should be on a permit by permit and project by project level.
Revolution Wind featured briefly in the hearing arguments. Late last month, the federal government issued a stop-work order on the under-construction project, citing Trump’s wind memo.
“BOEM invoking the Wind Memorandum to halt the fully-permitted and mostly-constructed Revolution Wind project exemplifies how the Wind Memorandum harms, and will continue to harm, Connecticut, its residents, its investments, and its offshore wind industry,” wrote a Connecticut state official in a filing for the case.
Hours before the hearing, Orsted, the project developer, filed a lawsuit against Interior Secretary Doug Burgum and several agencies over the Revolution Wind stoppage. In its filings, Orsted said the project is already losing millions of dollars per week, and that the longer the stop-work order remains in place, “the more likely it … will lead to the project’s termination.”
Massachusetts and more than a dozen other states are ultimately asking Young to rule that Trump’s wind memo is illegal, vacate it, and prevent the administration from taking any action to delay or prevent wind energy development.
The suit’s intervenor plaintiff, Alliance for Clean Energy New York, said it ultimately wants the judge to vacate the memo, but that it would be open to a remand, which would require the agencies to go beyond citing Trump’s wind memo to support their permitting freeze.
If the judge issues a remand, it means the federal government would have to provide such documentation to the court.
Young expressed some skepticism of the federal government’s standing with regards to this. Under the Administrative Procedure Act, agencies are required to explain their actions and undertake “reasoned,” not arbitrary, decisionmaking. The states argue that the agencies have failed to provide justification beyond Trump’s wind memo in their decision not to issue permits.
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As the Alliance for Clean Energy argued, the agencies cannot legally freeze permitting because “the president told me so” with his memo.
An environmental attorney who has been following the case described Young as guarded and cautious during Thursday’s hearing. They said a remand would demand further explanation from the government, but it wouldn’t stop the actions the Trump administration is taking against the offshore wind industry.
In recent weeks, the administration has ratcheted up its targeting of offshore wind, taking more than a dozen actions. In addition to the work stoppage at Revolution Wind, the federal government in other court cases has stated its intention to revoke project approvals for SouthCoast Wind (which is already in need of three permits) and New England Wind 1, a fully permitted project.
The states argue the memo has caused significant harm — stymieing domestic investment, jeopardizing states’ abilities to supply enough electricity, and creating an “existential threat” to the industry.
In recent filings, SouthCoast Wind, which has featured as a prominent voice — and the only developer voice — in the lawsuit, said Massachusetts, its agencies and businesses will lose out on millions of dollars and jobs if the project cannot move forward. (SouthCoast Wind is not a plaintiff, but has filed numerous affidavits with the court in support of the states’ claims.)
Among the harm the project has cited is a $15 million contract to an unnamed “local academic institution” to conduct scientific monitoring of the project, nearly $2.5 million to the National Offshore Wind Institute in New Bedford, and $33 million to MassCEC’s marine commerce terminal, also located in the city.
“All of this funding will be delayed or potentially cancelled as a result of the indefinite delay attributable to the Presidential Memorandum,” wrote SouthCoast Wind CEO Michael Brown in one filing. If the pause continues, “MassCEC will not receive these payments which will impact its ability to execute capital improvements and support [New Bedford Marine Commerce Terminal] operations.”
In June, Young partially allowed and partially denied the states’ several claims against the federal government over the wind memo.
He ruled that the states have standing to bring this case, and that the permitting freeze — which has been assigned 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.
Attorneys general from the following states are challenging the wind memo through this suit, filed in May: Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New York, New Mexico, Oregon, Rhode Island, and Washington. The District of Columbia is also a party.
The hearing lasted about 45 minutes. At its close, Young did not deliver any tentative rulings, as he did in June. He thanked the parties for their arguments and for answering his “genuine questions” on the matter.
“I expect to issue in due course a declaration of rights on this administrative record,” he told the parties. “We’ll see where we go from there.”
Email Anastasia E. Lennon at alennon@newbedfordlight.org.
The Supreme Court will put this Federal Judge in check. Wind is not the answer, it cost to much to provide minimal resources, while our Utility Bills spiral out of control. The Federal Judge wants to help. he should place a call to Governor Maura Healey, and tell her to approve the proposed natural gas pipeline, and provide some hope for the future to all the residents of Massachusetts.
Biden Administration’s faulty permitting is what got us here.
Judge Young’s “remand” in a lawsuit typically means sending a case back to a lower court for further action. , This would allow the lower court to reconsider the case based on the higher court’s instructions.
What about the Whales ?
The US is in a breach of contract. Private and public investment is being bankrupted by the chief executive’s caprice. He represents oil/gas and seeks to erase the clean energy sector. Now China wins the technology race, and the Russia-petro cabal owns the US. The Grand oil party is making New England rely on hugely US taxpayer-subsidised, imported, outmoded, polluting energy.
BTW, rate payers are charged over decades for the exorbitant cost of new pipelines, plus interest. Note the major part of your gas bill goes to the monopoly utility company’s profit, see the transmission fee.
Biden and whales are not the issue.
Texas is 30% wind-powered electricity and growing. However, we are not allowed to develop our own renewable, free wind sources due to federal leases being rescinded by a corrupt, self-enriching executive.
Coastal states are being targeted and our industries bankrupted by this.
Be responsible people, not pawns in a corrupt game.
Your welcome to your opinion, but many people do not agree with you. There are many articles that do not support your information and the bottom line is wind is costly, provides minimal electricity, and building fields of turbines in our oceans is straight out pollution.
Texas wind farms are on land. Ocean wind farms are boondoggle. Why do you think the federal government has to subsidies this wind farms?
“Offshore wind is a bad bet due to the complications of installing and maintaining infrastructure at sea and the high cost of transmitting electricity back to shore, NextEra Chief Executive John Ketchum. NextEra
Texas oil wells are on the land and the ocean.
Why do think that the federal government subsidizes oil extraction?
Seabed electric cables are cheaper to install than underground.
John Ketchum – the driving force behind Florida Power (flicker) and Light (flash).
In John’s words – ” NextEra Energy and its affiliated entities are meeting America’s growing energy needs with a diverse mix of energy sources, including natural gas, nuclear, renewable energy and battery storage. For more information about NextEra Energy companies, visit these
The fishing industry, like the former whaling industry, doesn’t die easily. But when it does, it needs a scapegoat to cover the greed and environmental destruction!
100% off the wall comment, our fish and scallops are beloved and desired around the world. We are always ranked the number one fishing port in the world, so this industry is not going anywhere.
In appreciation for your matter of fact telling about offshore wind, thank you Anastacia and jmczahill.
I hope all the people in this comment section calling for the end to offshore wind to “save our seas” are also pressuring lawmakers and the administration to stop offshore oil and gas drilling.