This is good news, but what will the Supreme Court do?
By Anastasia E. Lennon, Rhode Island Current
A federal judge on Monday ruled in favor of Massachusetts and more than a dozen states that sued the Trump administration in May over President Donald Trump’s day-one offshore wind memo. The directive has frozen permitting since January, pending a comprehensive review by federal agencies.
The states argued the memo is unlawful and has caused significant harm – stymieing domestic investment, jeopardizing states’ abilities to supply enough electricity, and creating an “existential threat” to the industry.
Judge Patti B. Saris seemed to agree with their legal claims: “The State Plaintiffs have produced ample evidence demonstrating that they face ongoing or imminent injuries due to the Wind Order.”
On the flip side, she delivered sharp criticism of the federal government’s arguments and the wind memo itself, writing that it fails to adequately explain or support such a significant change in course from the agencies’ prior permitting practices.
“Whatever level of explanation is required when deviating from longstanding agency practice, this is not it,” Judge Saris wrote.
“The Court concludes that the Wind Order constitutes a final agency action that is arbitrary and capricious and contrary to law,” she wrote. “Accordingly, the Court allows Plaintiffs’ motions… denies the Agency Defendants’ motion…, and declares unlawful and vacates the Wind Order” in its entirety.
Massachusetts Attorney General Andrea Campbell in a statement Monday called the ruling a “critical victory.”
“Massachusetts has invested hundreds of millions of dollars into offshore wind, and today, we successfully protected those important investments from the Trump Administration’s unlawful order,” Campbell wrote.
During a hearing last month, the federal government provided no end date for this project-wide review prescribed by the memo, which is going on 11 months and counting while permitting remains paused.
“The Agency Defendants have represented that the Comprehensive Assessment is ‘underway’ but have provided no information about its timeline,” wrote Judge Saris in the 47-page ruling.
“Until full processing of applications related to wind energy projects resumes, no such project can move forward,” she continued. “Indeed, as was previously held in this litigation, the Wind Order amounts to a ‘de facto suspension of the law with respect to wind energy development.’”
The memo ordered the Interior Department to review the “ecological, economic, and environmental necessity of terminating or amending any existing wind energy … and submit a report with recommendations to the President.”
The federal government asked that if the judge were to rule in the states’ favor, that it be limited only for certain projects, not all projects. Judge Saris, however, wrote that a project-specific “vacatur” is not feasible due to the breadth of the wind memo.
A status conference has been set for next week for the parties to meet before Judge Saris.
It is unclear what relief such a ruling will bring to the wind projects and the states, who want to see the federal agencies issue pending permits to the projects.
The ruling does not order a particular outcome, such as the agencies issuing the permit approvals, Judge Saris notes. Rather, her order regards agencies processing permits and making a determination within a reasonable time, as required under statute.
“The Agency Defendants may not, as they have done here, decline to adjudicate applications altogether, for an unspecified time,” she wrote. “The proof is in the pudding: No permits have issued since the Wind Order was promulgated, and the Agency Defendants acknowledge that they will not issue any permits at least until they complete the Comprehensive Assessment, for which there is no timeline.”
Gov. Maura Healey in a statement said the commonwealth needs offshore wind to “meet demand, create jobs and lower costs,” and thanked the AG’s office for its work to “defend this crucial energy source, protecting jobs and economic activity across the country and here in Massachusetts.”
Erica Fuller, senior counsel at the Conservation Law Foundation, said the ruling is a “victory for offshore wind but also the rule of law.”
“This unlawful moratorium was meant to be a gift to polluting fossil fuel companies from the Trump administration,” Fuller said. “It’s unclear what the Trump administration will do with this ruling. It is appealable. And the impact of it on any particular project is also determined by many factors but could become more clear after the status conference.”
The Light contacted the Interior Department Monday night for comment.
Email Anastasia E. Lennon at alennon@newbedfordlight.org.
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