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Q&A

Should Renewable Energy Companies Sue Trump?

They don’t have much to lose, Heiko Burow, an attorney at Baker & Mackenzie, tells me.

Heiko Burow.
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This week, since this edition of The Fight was so heavy, I tried something a little different: I interviewed one of my readers, Heiko Burow, an attorney with Baker & Mackenzie based in Dallas, Texas. Burow doesn’t work in energy specifically – he’s an intellectual property lawyer – but he’s read many of my scoops over the past few weeks about attacks on renewable energy and had legitimate criticism! Namely, as a lawyer who is passionate about the rule of law, he wanted to send a message to any developers and energy wonks reading me to use the legal system more often as a tool against attacks on their field.

The following conversation has been abridged for clarity. Let’s dive in.

So Heiko, you reached out to me after my latest scoop about how the Trump administration is now trying to create national land use restrictions on wind projects through the Department of Transportation. In your email, you said the Trump administration “cannot invent a setback requirement by executive fiat.” What does this mean?

Something you need to understand from my point of view is, there’s all these things coming out of the White House, the executive. Like the setback requirement: If the law says they have the right to do that, then okay. But the viewpoints of the administration do not replace the law.

There’s no requirement in the law that the Secretary of Transportation can require a setback. He can’t just come in and say here’s a required setback. The government can only do what the law allows a government to do.

For example, a CEO can’t come into a company and say all the contracts are null and void. The president, in the same way, can’t say everything that’s legally binding is no longer legally binding. There are two ways that creates a problem: one is that it is a breach of contract, and the courts will say there’s a different remedy for that. But there’s also a constitutional problem with that.

Why did you reach out to me about this story, in particular?

I’m just concerned about the environment, and our country, and our democracy.

As someone who works with corporations navigating the legal system under Trump, why do you think companies – like renewable developers – aren’t suing left and right in this moment?

I think they’re timid.

It’s not just companies – it’s stakeholders in general. In 2017, there was pushback on Trump. That is missing. Look at the tech industry – and a lot of investments in renewable energy come from the tech area – and how they lined up with Trump on Inauguration Day.

That is fear. I’d say other stakeholders too are now ruled by fear.

As someone who advises companies in other areas of law, what posture do you think renewable energy companies should take?

Band together. Renewable energy companies, you don’t have much to lose. He’s persecuting you.

I know people stay under the radar, like community solar entities that he could have forgotten about. But he didn’t forget about them. So they need to band together and fight.

Everybody’s just lying low and being afraid. But how much more can renewable energy companies lose? Right now they’re still surviving, because the business case for renewable energy works and states are supporting it. But they’re quiet about it on the national level.

If people start believing what Trump says is the force of law, then it’ll just be that way. And I don’t see a coordinated response to that.

Yellow

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Hotspots

Trump Administration to ‘Reconsider’ Approval for MarWin

And more of the week’s most important conflicts around renewable energy.

The United States.
Heatmap Illustration/Getty Images

1. Sussex County, Delaware – The Trump administration has confirmed it will revisit permitting decisions for the MarWin offshore wind project off the coast of Maryland, potentially putting the proposal in jeopardy unless blue states and the courts intervene.

  • Justice Department officials admitted the plans in a paragraph tucked inside a filing submitted to a federal court in Delaware this week in litigation brought by a beach house owner opposed to the offshore wind project.
  • DOJ stated in the filing that more time was “necessary as Interior intends to reconsider its [construction and operations plan] approval” for MarWin, and that it plans to “move” for “voluntary remand of that agency action” in a separate case filed by Ocean City, Maryland against the project.
  • “The outcome of Interior’s reconsideration has the potential to affect the Plaintiff’s claims in this case,” the filing stated. “Continuing to litigate this case before any decision is made in the [Ocean City case] would potentially waste considerable time and resources for both the parties and the Court.” As of today, no new filings have been made in the Ocean City case.

2. Northwest Iowa – Locals fighting a wind project spanning multiple counties in northern Iowa are opposing legislation that purports to make renewable development easier in the state.

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Spotlight

Interior’s Renewables Attacks Snag Power Lines

Nevada's Greenlink North is hit with a short, but ominous delay.

Solar panels and pylons.
Heatmap Illustration/Getty Images

I can now confirm the Trump administration’s recent attacks on renewables permitting appear to be impacting transmission projects, too.

Over the past two weeks, the Interior Department has laid forth secretarial orders implementing a new regime for renewables permitting on federal lands. This has appeared to essentially kill the odds of utility-scale solar or wind projects on federal land getting approved any time soon. Public timetables for large solar projects across the American West have suddenly slipped back by years-long intervals, and other mega-projects – like Esmeralda 7 – appear now to be trapped in limbo.

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Q&A

Will Blue States Open Up Their Wallets for Renewables?

A conversation with Heather O’Neill of Advanced Energy United.

The Fight Q&A subject.
Heatmap Illustration

This week’s conversation is with Heather O’Neill, CEO of renewables advocacy group Advanced Energy United. I wanted to chat with O’Neill in light of the recent effective repeal of the Inflation Reduction Act’s clean electricity tax credits and the action at the Interior Department clamping down on development. I’m quite glad she was game to talk hot topics, including the future of wind energy and whether we’ll see blue states step into the vacuum left by the federal government.

The following conversation has been lightly edited for clarity.

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