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The American Clean Power Association wrote to its members about federal guidance that has been “widely variable and changing quickly.”
Chaos within the Trump administration has all but paralyzed environmental permitting decisions on solar and wind projects in crucial government offices, including sign-offs needed for projects on private lands.
According to an internal memo issued by the American Clean Power Association, the renewables trade association that represents the largest U.S. solar and wind developers, Trump’s Day One executive order putting a 60-day freeze on final decisions for renewable energy projects on federal lands has also ground key pre-decisional work in government offices responsible for wetlands and species protection to a halt. Renewables developers and their representatives in Washington have pressed the government for answers, yet received inconsistent information on its approach to renewables permitting that varies between lower level regional offices.
In other words, despite years of the Republican Party inching slowly toward “all of the above” energy and climate rhetoric that seemed to leave room for renewables, solar and wind developers have so far found themselves at times shut out of the second Trump administration.
ACP’s memo, which is dated February 3 and was sent to its members, states that companies are facing major challenges getting specific sign-offs and guidance from the Army Corps of Engineers, which handles wetlands permits, as well as the Fish and Wildlife Service, our nation’s primary office for endangered species and migratory bird regulation.
Federal environmental protection laws require that large construction projects — even those on state and private lands — seek direction from these agencies before building can commence. Wetlands permitting has long been the job of the Army Corps, which determines whether particularly wet areas are protected under the Clean Water Act. Wetlands have historically been a vector for opponents of large pipelines and mines, as such areas are often co-located with sensitive ecosystems that activists want to preserve.
Fish and Wildlife, meanwhile, often must weigh in on development far from federal acreage because, according to the agency, two-thirds of federally listed species have at least some habitat on private land. FWS also handles the conservation of bird species that migrate between the U.S. and Canada, which are protected under the Migratory Bird Treaty Act. Any changes to federal bird consultation could impact wind developers because turbine blades can kill birds.
Now, apparently, all those important decision-makers are getting harder to read — or even reach. Army Corps district activity has become “widely variable” and is “changing quickly,” per the memo, with at least two districts indicating that for “wind or solar projects” they “will not be issuing any JDs,” meaning jurisdictional determinations for federally protected wetlands — that is, they won’t even say whether federal wetlands are present at a construction site or not. According to the Army Corps, receiving a JD is optional, but it is nevertheless an essential tool for developers trying to avoid future legal problems in the permitting process.
In addition, emails from staff in FWS’ migratory birds protection office now apparently include a “boilerplate notice” that says the office “is unable to communicate with wind facilities regarding permitting at this time.”
Usually, renewables developers just get a simple go-ahead from the government saying that they don’t have wetlands or bird nests present and that therefore work can begin. Or maybe they do have one of those features at the construction site, so guardrails need to be put in place. Either way, this is supposed to be routine stuff unless a project is controversial, like the Keystone XL pipeline or Pebble Mine in Alaska.
It’s not immediately clear how solar and wind developers move forward in this situation if they are building in areas where wetlands or protected species even may be present. Violating wetlands and species protection laws carries legal penalties, and with the Trump administration arranging itself in such an openly hostile fashion against renewables developers, it’s probably not a good idea to break those laws.
Unfortunately for industry, the ACP memo describes a confusing state of affairs. “Written guidance from ACOE [Army Corps of Engineers] to industry has been expected but members have not seen it yet. Actions and communications from regional districts appear to be guided by internal ACOE emails,” the document states. Staffing within the Army Corps is “uncertain” due to questions over whether money from the Inflation Reduction Act — which provided funds to hire permitting personnel — will be “available to continue funding staff positions in some offices,” or whether permitting staff will take the administration’s voluntary resignation offer, which the memo claims “is apparently still actively being pushed on staff with emails.”
Meanwhile, at Fish and Wildlife, ACP’s members “have indicated some staff are still taking phone calls and responding to emails to answer questions, while others are not.”
As with a lot happening in the early era of Trump 2.0, much of the permitting mess is still unclear. We don’t know who is behind these difficulties because there have been no public policy or guidance changes from the Army Corps or Fish and Wildlife. Trump did order agencies to stop issuing “new or renewed approvals” for wind projects shortly after entering office, but the ACP memo describes something altogether different: agency staff potentially refusing to declare whether an approval is even necessary to build on state or private lands.
Another example of how confusing this is? Interior had issued a 60-day pause on final decisions for solar projects, but the Army Corps isn’t under Interior’s control — it’s part of the Defense Department.
It’s also unclear if the contagion of permitting confusion has spread to other agencies, such as the Federal Aviation Administration, which we previously reported must regularly weigh in on wind turbines for aviation safety purposes. As I reported before Inauguration Day, anti-wind activists urged the Trump administration to essentially weaponize environmental laws against wind energy projects.
ACP didn’t respond to a request for comment. I also reached out to the Army Corps of Engineers and Fish and Wildlife Service, so I’ll let you know if and when I hear back from any of them.
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And more of the week’s most important conflicts around renewable energy.
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.
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.
3. Pima County, Arizona – Down goes another solar-powered data center, this time in Arizona.
4. San Diego County, California – A battery storage developer has withdrawn plans to build in the southern California city of La Mesa amidst a broadening post-Moss Landing backlash over fire concerns.
5. Logan and McIntosh Counties, North Dakota – These days, it’s worth noting when a wind project even gets approved.
6. Hamilton County, Indiana – This county is now denying an Aypa battery storage facility north of Indianapolis despite growing power concerns in the region.
They don’t have much to lose, Heiko Burow, an attorney at Baker & Mackenzie, tells me.
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.
Nevada's Greenlink North is hit with a short, but ominous delay.
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.
Amidst this flurry of secretarial orders, Nevada’s Republican Governor Joe Lombardo has signaled that transmission lines attached to renewable energy are also being trapped in the political thicket, even if the energy they would connect to is on private land. In a letter first reported by E&E News, Lombardo told Interior that his office has heard the recent orders have “not only stopped solar development on federal lands in Nevada, but also on private land where federal approvals such as transmission line rights of way are required.” Lombardo pleaded with Interior to “empower career staff to continue issuing approvals for projects sited on private lands where there is a federal nexus, such as transmission line rights of way.”
John Hensley, the senior vice president for markets and policy analysis for the American Clean Power Association, confirmed to me that, at a minimum, the newly anti-renewable Interior has also been hyper-focused on transmission lines connected to solar and wind. “I do believe that when considering transmission projects that are principally designed to enable wind and solar, those are certainly getting increased scrutiny and being brought into focus,” he told me this week.
As of today, I can report at least one major transmission line in Nevada that would connect to solar appears to be delayed: NV Energy’s Greenlink North, the second part of a sprawling transmission project that could, according to its permitting documents, cross areas with upwards of at least two dozen pending solar project applications, according to its environmental impact statement. The other major arm of the project, known as Greenlink West, was approved by the Biden administration but then met with litigation from environmental groups who are opposed to it over the possibility that it will harm endangered wildlife.
This spring, it looked like Greenlink North – which NV Energy has claimed is not tied to the completion of any individual solar project – would be an example of Trump embracing transmission and a neutral “all of the above” approach to power lines. The Bureau of Land Management released the environmental impact statement for the project and said it would deliver its final ruling on Sept. 12. In a press release, the agency said the line was “designed to increase transmission capacity and reliability across the state in support of American Energy Dominance.”
However, that was before far-right members of Congress asked the administration last month to attack renewable energy in exchange for passing Trump’s One Big Beautiful Bill.
Quietly, as of today, the Bureau of Land Management’s updated public project timetable for Greenlink North now says its record of decision will be released by Sept. 30. An 18-day slippage might seem benign, but agencies, including BLM, often use the end of a month marker as boilerplate when they’re unsure of when they’ll actually finish something. One can easily imagine this date slipping far beyond September, unless something changes.
It is altogether unclear what led BLM to slide the timetable back for Greenlink North to an end-of-month date like this. Yesterday, the agency uploaded appendixes to the permitting documents for the project, indicating things were moving smoothly. The agency did not release a public explanation for the deadline change.
Patrick Donnelly, an organizer with Center for Biological Diversity, told me last week that he’s split on how to feel about the Trump administration’s attacks on solar and related transmission projects in Nevada. On the one hand, in his view, stopping Greenlink North “will be beneficial for the environment.” I have no doubt he’s probably celebrating the delay that I am reporting today.
But Donnelly sees the obvious downsides. “If we’re looking at killing renewable energy, that is extremely harmful and we do not support that. We’ve always said there is a right place to put renewable energy on public lands,” he said. “I don’t want my home destroyed by solar panels. But I also don’t want no solar energy.”
I asked BLM to confirm that transmission projects linked to renewable energy are also subject to the ongoing permitting freeze, as well as for an explanation of the Greenlink North delay. BLM confirmed receipt of my request but was unable to provide comment by press time. We will update our story accordingly if and when we receive a statement from them.