Trump offshore wind order creates legal uncertainty for approved projects

A section of President Donald Trump's executive order banning further offshore wind development could encourage legal challenges to projects already approved, industry observers say.

Part "d" of the wind energy executive order that went into effect Jan. 21 lays out options for the US attorney general to take regarding offshore wind projects already facing litigation. The attorney general may "request that the court stay the litigation or otherwise delay further litigation, or seek other appropriate relief consistent with this order," the executive order says.

The secretary of the Interior, in consultation with the attorney general, will also review existing leases for possible amendment or termination. The review is expected to be finished in six months.

This provision could be used by the attorney general's office to "target finalized offshore wind projects that currently face pending legal challenges," said Tim Fox, managing director of consulting firm ClearView Energy.

"We think the Trump administration is unlikely to vigorously defend the Biden administration's offshore wind project approvals in court," Fox added. Therefore, the new administration "could instead use those judicial proceedings to undo what was completed before Trump took office."

The executive order could also be used to encourage opponents of offshore wind to file additional legal challenges, as they anticipate administration review findings acting in their favor, Fox added.

ClearView has warned of this potential legal threat for months now. The group is tracking pending lawsuits against the US Bureau of Ocean Energy Management's (BOEM) approval of Orsted's Revolution Wind and South Fork Wind projects, though South Fork began operating in March 2024; Dominion Energy's Coastal Virginia Offshore Wind project; and US Wind's multiphase Maryland offshore wind project, which received final agency approval in December 2024.

Nantucket uncertainty

The town of Nantucket, Massachusetts, which had been preparing to sue BOEM over its December 2024 approval of the 2.4-GW SouthCoast Wind project, in a Jan. 22 letter to residents said Trump's executive order appears less helpful on the legal front.

"It isn't clear how the Executive Order will affect projects that already have their permits from BOEM: Vineyard Wind 1, New England Wind 1 & 2, and SouthCoast Wind," the letter said. "If the Secretary [of the Interior] and Attorney General decide to review BOEM's permitting decisions for these projects, we have no way of knowing right now what the outcome will be."

Nantucket has said it is looking to sue BOEM for approving SouthCoast Wind, being developed by Engie SA and EDP Renewables North America through their Ocean Winds joint venture, without considering the risks the project could pose for the island.

Nantucket fears a repeat of a blade failure that occurred last July at Avangrid Renewables' partially operational Vineyard Offshore Wind project, which polluted the town's beachfront and nearby waters with debris. The town wants BOEM to require the developer to establish a relief fund that would cover such a disaster.

Nevertheless, the town believes Trump's executive order prevents projects currently undergoing permitting review from moving forward. These would include BP plc's Beacon Wind project in New York; Copenhagen Infrastructure Partners' Vineyard Wind 2 development, which the developer in December 2024 put on hold after it was not selected in a multistate request for proposals; and Bay State Wind, a dormant second phase of the Revolution Wind project.

Meanwhile, the national environmental group Natural Resources Defense Council (NRDC) is also attempting to parse the litigation risks of Trump's wind order. A spokesperson said the group is confused by the order, which mirrors other executive actions taken Jan. 20 to strike down US Environmental Protection Agency regulations.

NRDC lawyers see similarities between the offshore wind order and the energy order in that both insist the attorney general take action, but neither makes clear what risks that would immediately pose to defendants.

Primarily, this appears to be related to reviews the administration must do before it can determine further action against wind projects or EPA regulations.

"[T]hese EOs are difficult to parse," NRDC spokesperson Mark Drajem said in an email, adding that, in reference to actions to stay litigation, "our folks aren't entirely clear what this means."

Drajem said it appears similar actions by the attorney general are part of the executive order on energy, too, with regard to EPA regulations. "I guess they would ask the cases be put on hold until the administration figures out what it will do," he said.