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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

GoodPower Is Sussing Out What People Actually Want from Data Centers

Talking with Leah Qusba, the CEO of GoodPower.

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Leah Qusba.
Heatmap Illustration

This week’s conversation is with Leah Qusba, CEO of GoodPower, which recently released a survey experiment you need to read. Conducted with Data for Progress, the project, published Monday, takes a unique approach to asking people why they opposed data centers for artificial intelligence and whether constructing renewable energy instead of gas power moves the needle at all in their support for AI infrastructure near them. Instead of just asking polling questions, they posed various hypothetical project designs to people — and the results were eye-popping. Turning to solar instead of gas? Might not be a panacea for gaining approval at the local level. Protecting electricity rates from going sky-high? Now that’s a way to get buy-in.

The following conversation was lightly edited for clarity.

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Hotspots

A First-Of-Its-Kind State of Emergency — Over a Permitting Pause

And more of the week’s top fights around development.

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The United States.
Heatmap Illustration/Getty Images

1. Umatilla County, Oregon – A small town in Oregon this week declared a state of emergency over fears that a statewide pause on data center permits will harm its economy.

  • Five of the six people on the Umatilla city council voted to adopt a resolution formally calling for a state of emergency “due to the threat of widespread financial loss.” Umatilla City Manager Dave Stockdale told the council before the vote that the data center pause enacted by Governor Tina Kotek puts millions in tax revenue at risk. Other city staffers told the council that current budget reserves are healthy, but this could complicate a bond for a new police station and delay executing their city’s master plan.
  • Umatilla is home to more than 20 data center projects currently operating or under development, equal to roughly one-fifth of the state’s data center sector. Oregon law expressly grants cities and towns permission to declare a state of emergency over “financial loss.” And the Umatilla resolution is a clear legal threat; its text calls for “immediate reconsideration” of Governor Kotek’s directive pausing data center permits and “authorizes the city manager to coordinate with affected governments and legal counsel to pursue appropriate administrative and judicial remedies.”
  • To the best of our knowledge, this is the first time a municipal government has threatened legal action or declared a state of emergency over a state-wide permitting pause against data center development. It goes to show that what comes around goes around.

2. Saratoga County, New York – Is Trump’s country music superstar-turned-power-project combatant John Rich preparing to debut a new song about solar farms, or something more?

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Spotlight

The Most Important Data Center Election You’ve Never Heard Of

The race for the top job in McCracken County, Kentucky, might hinge on the importance of a community benefit agreement.

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Paducah, Kentucky figures.
Heatmap Illustration/Library of Congress, U.S. Department of Energy

An election-season battle is brewing over what could be the nation’s first massive data center operating on federal land. And you almost certainly have never heard of it.

Come with me to McCracken County, Kentucky, just outside its largest city, Paducah, where the Energy Department is allowing new development at a large brownfield property. First constructed in the 1950s, the Paducah Gaseous Diffusion Plant was once the country’s only uranium enrichment facility, but it closed in 2010. Since then, and after years of cleanup, Paducah city officials and the McCracken County government have sought to revitalize and reindustrialize the site.

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