A federal judge has declined to issue an injunction that would have protected US Wind from what it says are Trump administration attempts to kill its planned wind farm off Ocean City,for which it already has permits.
U.S.District Judge Stephanie A.Gallagher in Baltimore noted in her decision—handed down Tuesday—that US Wind technically could move forward with constructing its wind farm off of Delmarva.
Even though President Donald Trump’s(R)administration has announced its intention to reevaluate the crucial Construction and Operations Plan(COP)approval issued to US Wind during the waning days of President Joe Biden’s(D)administration,it has not actually revoked the permit,Gallagher wrote in her ruling.
In a previous decision,Gallagher preliminarily rejected a request from the Trump administration to remand the permit back to the U.S.Department of the Interior for reconsideration.Gallagher ruled that the government needed to present more information in order for her to make a ruling.But she allowed the department to carry on with any“internal review”of the permit,as desired.
During a hearing in Baltimore last week,US Wind officials stated that they had paused work on an important—and costly—facility design report,because of the Trump administration’s pronouncements about revoking the permit.They have argued that the loss of the permit poses an existential threat to the project—and possibly to the entire company.
In a prepared statement,US Wind Vice President of External Affairs Nancy Sopko said Wednesday that the company“remains confident in the validity of all permits issued for our project,and we will continue to vigorously defend them in court.”
Gallagher called the company’s decision to press pause on the project understandable,but argued that US Wind made that choice on its own—not because it would face legal liability if it proceeded.
“No law would impose civil or criminal liability on US Wind if it continued to develop the project,”Gallagher wrote.“It simply has made a business decision not to do so in light of the political headwinds it perceives.”
Gallagher ruled that the government has not issued a final decision about the COP.So,she could not grant an injunction to US Wind,stopping the government from taking the action.
US Wind must“wait to see”whether the Interior Department“makes some decision that has some legal consequence,”Gallagher wrote.At that time,she wrote,US Wind could challenge that decision in court.
In court,US Wind’s attorneys pointed to the government’s court filings,arguing that the agency has made its intentions clear.
In particular,they highlighted a declaration from Adam Suess,the acting assistant secretary for land and minerals management at the Interior Department.Suess stated that the Biden administration’s approval of the permit“was not properly informed by a complete understanding of the impacts from the project.”The federal government has specifically cited the project’s potential impacts to commercial fisheries and search and rescue operations in the region.
But Gallagher said even though Suess’s declaration“suggests that the analysis underlying the COP approval was flawed,”it doesn’t come to a final determination.
“Rather,it states an intent to further examine that question,”Gallagher wrote.
“US Wind has understandably inferred from the Suess Declaration(and the multitude of indications from this Administration of its hostility to wind energy projects generally)that BOEM has already decided that it will revoke the COP,”Gallagher wrote.“But no such decision has yet been made final.”
