By Kennedy Maize
President Trump’s war on wind power, articulated on his first day in office, has hit an administrative reversal in the U.S. District Court for the District of Massachusetts. Judge Patti Saris earlier this month (Dec. 8) struck down a major portion of Trump’s “temporary” across-the-board freeze on federal permits for offshore and onshore wind projects in a challenge brought by 17 states, the District of Columbia, and ACE NY, a New York clean energy trade group. New York’s embattled Attorney General Letitia James, reviled by Trump, led the challenge.
On January 20, the White House issued its “Temporary Withdrawal of All Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects.” The order contains two sections. The first affects the Interior Department’s authority over projects on the Outer Continental Shelf. The second covers a broad swath of executive branch agencies over onshore projects.
In her opinion, Judge Saris ruled that the administration violated the Administrative Procedures Act (APA) by taking actions that were “arbitrary and capricious” in the January 20 executive order. Saris noted that the first section of the Trump order “is not at issue in this litigation,” meaning that DOI’s offshore orders under the Outer Continental Shelf Lands Act are legal.
The second portion of the executive order drew Saris’s objections, which she described as trampling over the APA. Saris is scornful of the way the administration hurried the order through the administrative process. Unlike the first section of the order, which cites the applicable law, the second portion of the “Wind Memo, in contrast, invokes no statutory grant of authority to the President, instead merely instructing certain agencies to implement a suspension of wind energy authorizations ‘consistent with applicable law.’”
Saris notes that “the administrative record consists of only two documents: the Wind Memo and the Interior Department’s written order suspending the issuance of renewable energy authorizations pursuant to the Wind Memo.” She adds, “Indeed, the Agency Defendants candidly concede that the sole factor they considered in deciding to stop issuing permits was the President’s direction to do so.”
Saris concludes that “the Wind Order necessarily directs agencies to violate two APA provisions.” Agencies must take action “within a reasonable time” and that “any adjudicatory hearings mandated by law with respect to license applications ‘be set and completed in an expeditious and judicious manner.’”
Saris writes, “An indefinite halt on issuing (or denying) all authorizations related to wind projects” violates the reasonable time standard. Also, agencies “may not, as they have done here, decline to adjudicate applications altogether, for an unspecified time, pending the completion of a wide-ranging assessment with no anticipated end date.”
Saris directed that the Trump order’s provision under review be fully vacated, meaning that the ruling applies nationally. A legal analysis by the Troutman Pepper Locke law firm commented, “Despite the major win for wind, though, there is still significant uncertainty regarding how this administration will respond to the ruling and how it will affect wind energy permitting going forward.”
Judge Saris, 74, is a senior judge in the Massachusetts District and was the court’s chief judge. She has served in the federal court since 1986. “Senior judge” is semi-retired status, where the jurists carry at least a 25 percent caseload or meet other activity criteria. They remain entitled to maintain a staffed office and chambers, including a secretary and their normal complement of law clerks.
Massachusetts Attorney General Andrea Joy Campbell in a statement praised the decision. Campbell said, “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. This critical victory also preserves well-paying green jobs and access to reliable, affordable energy that will help Massachusetts meet our clean energy and climate goals.”
NY’s James commented, “As New Yorkers face rising energy costs, we need more energy sources, not fewer. Wind energy is good for our environment, our economy, and our communities. I am grateful the court stepped in to block the administration’s reckless and unlawful crusade against clean energy.”
Trump’s hatred of wind power is well-known and deep-seated, going back 20 years to his losing battle to prevent offshore wind turbines as he developed a luxury golf course in Scotland. In a September “cabinet meeting” that mostly resembled a worship service, Trump claimed, somewhat inaccurately, “We don’t allow windmills. We’re not allowing any windmills to go up. Unless there’s a legal situation where somebody committed to it a long time ago, we don’t allow windmills.”
The Troutman legal analysis concluded, “Since the Wind Order was first issued, this administration has issued numerous directives aimed at hindering not just wind but also solar projects, as well as ramping up targeted enforcement against wind projects. As most of these orders do not rely on the Wind Order, Judge Saris’s ruling is not expected to directly affect them.”