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Spotlight

Can the Courts Rescue Renewables?

The offshore wind industry is using the law to fight back against the Trump administration.

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Donald Trump, a judge, and renewable energy.
Heatmap Illustration/Getty Images

It’s time for a big renewable energy legal update because Trump’s war on renewable energy projects will soon be decided in the courts.

A flurry of lawsuits were filed around the holidays after the Interior Department issued stop work orders against every offshore wind project under construction, citing a classified military analysis. By my count, at least three developers filed individual suits against these actions: Dominion Energy over the Coastal Virginia offshore wind project, Equinor over Empire Wind in New York, and Orsted over Revolution Wind (for the second time).

Each of these cases are moving on separate tracks before different district courts and the urgency is plain. I expect rulings in a matter of days, as developers have said in legal filings that further delays could jeopardize the completion of these projects due to vessel availability and narrow timelines for meeting power contracts with their respective state customers. In the most dire case, Equinor stated in its initial filing against the government that if the stop work order is implemented as written, it would “likely” result in the project being canceled. Revolution Wind faces similar risks, as I’ve previously detailed for Heatmap.

Meanwhile, around the same time these cases were filed, a separate lawsuit was dropped on the Interior Department from a group of regional renewable energy power associations, including Interwest Energy Alliance, which represents solar developers operating in the American Southwest – ground zero for Trump’s freeze on solar permits.

This lawsuit challenges Interior Secretary Doug Burgum’s secretarial orders requiring his approval for renewable energy decisions, the Army Corps of Engineers’ quiet pause on wetlands approvals, and the Fish and Wildlife Services’ ban on permitting eagle takes, as well as its refusal to let developers know if they require species consultations under the Endangered Species Act. The case argues that the administration is implementing federal land law “contrary to Congress’ intent” by “unlawfully picking winners and losers among energy sources,” and that these moves violate the Administrative Procedures Act.

I expect crucial action in this case imminently, too. On Thursday, these associations filed a motion declaring their intent to seek a preliminary injunction against the administration while the case is adjudicated because, as the filing states, the actions against the renewables sector are “currently costing the wind and solar industry billions of dollars.”

Now, a victory here wouldn’t be complete, since a favorable ruling would likely be appealed and the Trump administration has been reluctant to act on rulings they disagree with. Nevertheless, it would still be a big win for renewables companies frozen by federal bureaucracy and ammo in any future legal or regulatory action around permit activity.

So far, Trump’s war on solar and wind has not really been tested by the courts, sans one positive ruling against his anti-wind Day One executive order. It’s easy in a vacuum to see these challenges and think, Wow, the industry is really fighting back! Maybe they can prevail? However I want to remind my readers that simply having the power of the federal government grants one the capacity to delay commercial construction activity under federal purview, no matter the legality. These matters can become whack-a-mole quite quickly.

Dominion Energy’s Coastal Virginia offshore wind project is one such example. Intrepid readers of The Fight may remember I was first to report the Trump administration might try to mess around with the permits previously issued for construction through litigation brought by anti-renewables activists, arguing the government did not adequately analyse potential impacts to endangered whales. Well, it appears we’re getting closer to an answer: In a Dec. 18 filing submitted in that lawsuit, Justice Department attorneys said they have been “advised” that the Interior Department is now considering whether to revoke permits for the project.

Dominion did not respond to a request for comment about this filing, but it is worth noting that the DOJ’s filing concedes Dominion is aware of this threat and “does not concede the propriety” of any review or revocation of the permits.

I don’t believe this alone would kill Coastal Virginia given the project is so far along in construction. But I expect a death by a thousand cuts strategy from the Trump team against renewable energy projects writ large, regardless of who wins these cases.

Yellow

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Q&A

How to Channel Voters’ Anxieties About Data Centers

A conversation with the Guardrails Alliance’s Shaunna Thomas.

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The Q&A subject.
Heatmap Illustration

This week’s Q&A is with Shaunna Thomas of the Democrat-allied super PAC Guardrails Alliance, which describes itself as “not anti-technology” but supportive of AI “rules, accountability, and a government that actually represents the public.” Part of that AI accountability they’re calling for is on data centers.

After the midterms, Guardrails Alliance sent a memorandum to all House and Senate Democratic offices arguing for AI and data center accountability to be a key part of their message and plans heading into the new Congress. Described as a “playbook for how to understand and channel anxieties about AI and data centers,” the document laid out “key narratives” that they said voters who care about these issues want to see reflected and echoed by their politics. They said the push against data centers could help Democrats build more lasting political power.

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Hotspots

Consider the Lobstermen Affected by New York’s Empire Wind

Plus more of the week’s biggest development fights.

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The United States.
Heatmap Illustration/Getty Images

1. New York City — We have a new must-watch offshore wind lawsuit with potential implications for the entire sector — and this time, it’s from lobstermen seeking damages.

  • In late October, a family of lobstermen sued Equinor in federal court claiming the company’s compensatory mitigation program is failing to adequately make up for alleged negative impacts to lobster fishing grounds in the New York Bight. According to the lawsuit, the wind project irreparably hurt fishing in previously trafficked waters. The suit also claims that Empire Wind construction destroyed lobster fishing pots and seeks at least $75,000 in damages as well as punitive damages and attorneys’ fees.
  • The lawsuit is the first I have seen involving someone in aquaculture suing for damages over negative impacts of an already-constructed wind project, and it carries outsized implications as the Trump administration remands without vacatur the construction and operations plans for other offshore wind farms. This case is far from being decided, but that doesn’t matter: It is precisely the kind of complaint that Trump officials are likely to consider as they mull revisions to operational plans.
  • An Equinor spokesman declined to comment on the case, telling me they don’t speak on pending litigation.

2. Hinds County, Mississippi — The largest proposed solar farm in Mississippi is moving forward after an appeals court rejected arguments from aggrieved local residents that it had been improperly approved.

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Spotlight

Data Center Developers Can’t Pay People Enough to Accept Them

Trump’s “data center dividend” appears to have backfired. Our latest poll results help explain why.

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Donald Trump and data center protesters.
Heatmap Illustration/Getty Images

This year’s midterm elections called into question the efficacy of a push to pay local residents directly in exchange for building data centers.

Before the elections, I profiled the campaign for politicians to embrace the data center “dividend,” a policy idea modeled off Alaska’s Permanent Fund, which doles out checks to residents from profits off state oil, gas and mineral royalties. The Bitcoin Policy Institute, a tech policy think tank, was one of the first to trumpet the concept, but it was quickly taken up by President Donald Trump, who started raising it in speeches and on social media. “If companies want to make their Data Centers popular, pay the community, and/or individuals within the community, a ‘dividend,’” Trump posted to Truth Social on October 21.

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