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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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Spotlight

The New Push for Underwater Data Centers

Exploratory projects are making a splash in Maine and Alaska.

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Wires and water.
Heatmap Illustration/Getty Images

A legal brawl is brewing over what could be the nation’s first underwater data centers.

Two subsidiaries of a new LLC named DeepGreen have applied for “preliminary” permits from the Federal Energy Regulatory Commission that would give four years of permission for studies and analysis towards constructing underwater data centers off remote coastlines in Maine and Alaska. The data centers as proposed would be powered entirely by tidal energy, as in, the power of waves themselves – a technological innovation from hydropower still being piloted around the world. Project descriptions submitted to FERC lay out what these data centers would look like in broad strokes: hundreds of hydrokinetic turbines, dozens of underwater “data center pods,” and miles of subsea cable. The permits would not authorize construction, which would need its own lengthy review process. But these early green lights would tee both areas up for years of potential conflict over hypotheticals that feel real to those on the ground.

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Hotspots

The Solar Opponents Begging Trump to Intervene in Michigan

And more of the week’s biggest fights around project development

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The United States.
Heatmap Illustration/Getty Images

1. Ottawa County, Michigan – A congressional district House Democrats are targeting for control of the Lower Chamber is now a battleground over solar development on farmland, and I’m waiting to see if President Trump gets involved.

  • On Sept. 24, the Michigan township of Zeeland wrote a letter to the president – and reportedly Agriculture Secretary Brooke Rollins – requesting the federal government intervene in the development of RWE’s utility-scale Silver Maple Solar project. The letter to Trump which is public requests the president visit Zeeland and the project site to “provide an opportunity to meet directly with local farmers, business owners, elected officials, and residents who are living with the consequences of the poor policies you are fighting against.”
  • Shortly thereafter, Zeeland Township supervisor Kerri Bosma, who authored the letter, met with Rep. Bill Huizenga and presented him with a copy of the letter. “Thank you for reaching out Kerri and keep up the fight against this Lansing big government takeover!” Huizenga said on Facebook. Huizenga’s office did not respond to a request for comment on how they would support this request further.
  • This is remarkable because local officials are beckoning for Trump to arrive at a time when he’s historically unpopular and Huizenga’s congressional district is one being targeted by the Democratic Congressional Campaign Committee in this year’s midterm elections as a priority. Maybe this is about ginning up partisan red meat, as Huizenga’s opponent, State Sen. Sean McCann, has been publicly supportive of more solar development in agricultural communities.
  • Locals appear most irate with the state permitting primacy law which allows the state regulator, Michigan Public Service Commission, to supersede local opposition toward renewable energy projects. So far, the legality of that power is withstanding court challenges, and it’s unclear to me how the federal government could in any way stall this large solar farm aside from helping out in that legal effort on behalf of localities.
  • Clearly, RWE is confident they can go ahead – they just resubmitted their application to build the project with the MPSC, citing the primacy law’s survival in the courts.

2. Texas – The Lone Star State sure is action-packed right now, huh? Let’s break down a few of the most important fights.

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Q&A

Why the Senate Permitting Bill Isn’t a ‘Grand Bargain’

A conversation with Josh Freed of Third Way

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Josh Freed.
Heatmap Illustration

This week’s conversation is about the big energy policy story of the week – month? year? – which is the new bipartisan permitting deal in the U.S. Senate. As my colleagues and I were feverishly working on our mega-explainer about the bill, I rang up Josh Freed, founder of Third Way’s energy and climate program, who graciously picked up the phone despite traveling in London. Freed, a fellow energy wonk-slash-musician, was gracious to jam out with me on all the things I felt you needed to know about this bill – including whether there really is only one shot to get what he believes would be landmark legislation into law.

The following chat was lightly abridged for clarity. Let’s dive in.

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Yellow