Trump Administration Restarts Key Permitting Process for Wind Farms

When Trump first entered office, he banned wind projects from receiving permits that would allow operators to unintentionally hurt or kill a certain number of federally protected eagles, transforming one of his favorite attacks on the industry into a dangerous weapon against clean energy.

One year later, his administration is publicly distancing itself from the ban while quietly issuing some permits to wind companies and removing references to the policy from government websites. At the same time, however, the federal government is going after wind farm operators for eagle deaths, going so far as to use the permitting backlog it manufactured to intimidate companies trying in good faith to follow the law, with companies murmuring about the risk of potential criminal charges.

Two days before Christmas, a coalition of renewable energy trade groups whose members include some of the world’s largest clean energy companies sued the Trump administration, arguing that several of its policies delaying permits for their projects violated the Administrative Procedures Act. One of those policies was the ban on granting new bald and golden eagle “incidental take permits.” These serve as the government’s way of acknowledging that hurting or killing protected bird species in small numbers is unavoidable no matter how many design protections are put in place.

After that lawsuit was filed, the Trump administration began wiping references to the ban from government websites discussing the permitting program. Some of these changes were recent: Wind companies discovered references to the ban were deleted from these webpages sometime between the case being filed and mid-January, according to screenshots and sworn statements submitted as exhibits in the case. The now-deleted language describing the ban said it was premised on Trump’s Day 1 anti-wind executive order, which a federal judge ruled in December violated the Administrative Procedures Act.

I am also starting to hear that the Fish and Wildlife Service is sending wind farm operators eagle permits again, though I do not know how many have gone out or to whom.

When it comes to bald eagles, at least, the Fish and Wildlife Service is supposed to “automatically” issue general permits for incidental take through an electronic self-certification system. A spokesperson for the advocacy groups behind the lawsuit confirmed in a statement to me that the Fish and Wildlife Service is “now processing” these general permits “because they cannot halt them given their self-certification structure.”

The spokespoerson added that to their knowledge, the agency still isn’t issuing permits requiring more thorough levels of government analysis because of other Trump administration policies. Complex permits are likely still impeded by an order requiring sign-off from Interior Secretary Doug Burgum on environmental permits for solar and wind projects.

Garrett Peterson, acting chief of public affairs for the Fish and Wildlife Service, confirmed in a statement Friday afternoon that the office is currently allowing general permits for wind farms “that meet eligibility and issuance criteria.”

This change in practice also comes after a string of losses — many, many losses — in court over Trump’s stop work orders blocking offshore wind construction. The Trump administration may be trying to avoid yet another embarrassing defeat.

Still, the wind industry isn’t out of the woods entirely. Team Trump seems to be pivoting to enforcing the law protecting bald and golden eagles — the aptly titled Bald and Golden Eagle Protection Act.

On January 12, the trade groups filed a motion asking the judge in the case for a preliminary injunction lifting all of the anti-renewable permitting policies addressed in the case, including the eagle permit ban, until the court could make a final ruling. Attached to the motion was a voluminous, candid, and fearful statement from executive directors for the trade groups, making a lot of information about Trump’s war on renewable energy public for the first time. One of those confessions was the existence of a memo banning water permits for projects that defied the Trump administration’s preferred “aesthetics,” news of which I scooped on Thursday in my newsletter The Fight.

Another disclosure by the trade groups made my jaw drop. The eagle permit ban appeared to have become a cudgel for the administration to use against companies reporting bird deaths in good faith, departing from what the coalition said was a “longstanding policy” of “enforcement discretion so long as wind farm operators can demonstrate that they are implementing best practices.” This situation was significant and dire, according to the statement — so much so the trade groups were “unwilling to disclose specific projects” that were harmed by the eagle permit ban “due to ongoing concerns about potential persecution or retaliation in direct response to their participation in this lawsuit.”

These enforcement actions do happen, but are not usually a public affair unless the charges are particularly serious. Those instances have been rare, reserved for companies demonstrating what the Bald and Golden Eagle Protection Act describes as a “wanton disregard” for the lives of the birds.

The Trump administration first indicated it would pursue some sort of crackdown on eagle deaths from wind farms in early August, when it sent letters to project operators across the country asking for any and all information on the subject. The letters teased the risk of not only civil but criminal liability, stating that certain violators would be forwarded to the Justice Department.

Since then, I’ve heard of just one enforcement action under Trump 2.0 for an eagle death: In early November, Fox News reported that the U.S. Fish and Wildlife Service told the Danish energy company Orsted during the government shutdown that it would issue $32,340 in fines over two dead eagles found near wind farms in Nebraska and Illinois. The Fox News story stated that Orsted had come to the Fish and Wildlife Service voluntarily with the dead eagles and would be fined because they died without proper permits; it’s unclear whether the company was pursuing them at the times the birds died. Current rules under the Bald and Golden Eagle Protection Act call for up to $16,590 for every dead bird, so the fine represented nearly the strictest civil penalty FWS could level against Orsted.

The trade group executives’ statement indicates that the enforcement action described in the Fox News article wasn’t a one-off, and that there is a wider wind industry crackdown over dead eagles playing out in the shadows, at least for now. It’s unclear whether this will take the form of a mess of fines, or whether, as the FWS data call suggested, some of this work might lead to allegations of criminality involving the Justice Department.

When I asked for comment on the enforcement efforts, the Fish and Wildlife Service told me to file a public records request under the Freedom of Information Act.

American Clean Power, the largest trade group representing wind companies, did not respond to requests for comment for this story.

Editor’s note: This story has been updated to remove the name of the spokesperson for the litigants.