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Americans love their public lands — particularly Americans living in the West, where easy access to the region’s undeveloped forests, mountains, rivers, deserts, and lakes is a point of identity and pride. But on Friday, in its first action as a voting body, the House of Representatives for the 119th Congress approved a rules package that reintroduces a provision making it easier for lawmakers to cede control of federal lands to local authorities. That, in turn, could result in vast swaths of the West being opened up to drilling or auctioned off to private owners, according to critics.
“It’s an obscure provision that [Congress] is using to essentially obfuscate the paving of the way towards selling off federal public lands,” Michael Carroll, the BLM Campaign Director at the Wilderness Society, told me of the rulemaking maneuver.
Republicans have tried this before. In 2017, during the party’s trifecta, the House approved a rules package with a near-identical provision that essentially declared that public lands do not have a budgetary value that needs to be accounted for when they’re sold, streamlining potential handovers. New Mexico Democratic Representative Raúl Grijalva described the provision at the time as allowing Congress to “give away every single piece of property we own, for free, and pretend we have lost nothing of any value.”
Utah Republican Representative Jason Chaffetz subsequently attempted to take advantage of the provision by introducing legislation that would have transferred 3 million acres of Western federal land to state control — a bill that was met by so much opposition from hunters, anglers, and his own furious constituents that he ultimately withdrew it.
The provision briefly disappeared from the rules packages of the 116th and 117th Congresses, when the House was controlled by Democrats, then reappeared again in 2023, when Congress was split but the House was in Republican control. But to advocates for public lands, the provision’s inclusion in the 119th Congress’ rules seems like a mere extension and more like a tactical teeing-up for the incoming Republican trifecta. “Utah politicians aren’t stupid. They learn from their mistakes,” Carroll said.
He described an anticipated three-pronged approach to land privatization headed into 2024: the judiciary route, with the Supreme Court poised to decide whether or not to hear a Utah lawsuit over the constitutionality of federal control of BLM lands later thisweek; the legislative route, which began with Friday’s rule package; and the administrative route, with Trump’s nominee for Secretary of the Interior Doug Burgum, who supports Utah’s lawsuit, under a directive to increase drilling. “It’s all backed up by the amount of money that the state of Utah appropriated to support their lawsuit — $20 million that they didn’t have that last time,” Carroll added.
He doesn’t expect Republicans to sit around twiddling their thumbs, either. In 2017, the “Trump administration was pretty new to governing and the levers of power.” He expects in 2024 “we’re going to see, in the next two weeks, legislation that moves to privatize public lands.”
“We need to hear Republicans when they say, ‘Drill, baby drill,’” Carroll went on. “That has real consequences for federal public lands.”
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A third judge rejected a stop work order, allowing the Coastal Virginia offshore wind project to proceed.
Offshore wind developers are now three for three in legal battles against Trump’s stop work orders now that Dominion Energy has defeated the administration in federal court.
District Judge Jamar Walker issued a preliminary injunction Friday blocking the stop work order on Dominion’s Coastal Virginia offshore wind project after the energy company argued it was issued arbitrarily and without proper basis. Dominion received amicus briefs supporting its case from unlikely allies, including from representatives of PJM Interconnection and David Belote, a former top Pentagon official who oversaw a military clearinghouse for offshore wind approval. This comes after Trump’s Department of Justice lost similar cases challenging the stop work orders against Orsted’s Revolution Wind off the coast of New England and Equinor’s Empire Wind off New York’s shoreline.
As for what comes next in the offshore wind legal saga, I see three potential flashpoints:
It’s important to remember the stakes of these cases. Orsted and Equinor have both said that even a week or two more of delays on one of these projects could jeopardize their projects and lead to cancellation due to narrow timelines for specialized ships, and Dominion stated in the challenge to its stop work order that halting construction may cost the company billions.
The decision marks the Trump administration’s second offshore wind defeat this week.
A federal court has lifted Trump’s stop work order on the Empire Wind offshore wind project, the second defeat in court this week for the president as he struggles to stall turbines off the East Coast.
In a brief order read in court Thursday morning, District Judge Carl Nichols — a Trump appointee — sided with Equinor, the Norwegian energy developer building Empire Wind off the coast of New York, granting its request to lift a stop work order issued by the Interior Department just before Christmas.
Interior had cited classified national security concerns to justify a work stoppage. Now, for the second time this week, a court has ruled the risks alleged by the Trump administration are insufficient to halt an already-permitted project midway through construction.
Anti-offshore wind activists are imploring the Trump administration to appeal this week’s injunctions on the stop work orders. “We are urging Secretary Burgum and the Department of Interior to immediately appeal this week’s adverse federal district court rulings and seek an order halting all work pending appellate review,” Robin Shaffer, president of Protect Our Coast New Jersey, said in a statement texted to me after the ruling came down.
Any additional delays may be fatal for some of the offshore wind projects affected by Trump’s stop work orders, irrespective of the rulings in an appeal. Both Equinor and Orsted, developer of the Revolution Wind project, argued for their preliminary injunctions because even days of delay would potentially jeopardize access to vessels necessary for construction. Equinor even told the court that if the stop work order wasn’t lifted by Friday — that is, January 16 — it would cancel Empire Wind. Though Equinor won today, it is nowhere near out of the woods.
More court action is coming: Dominion will present arguments on Friday in federal court against the stop work order halting construction of its Coastal Virginia offshore wind project.
A federal court has once again allowed Orsted to resume construction on its offshore wind project.
A federal court struck down the Trump administration’s three-month stop work order on Orsted’s Revolution offshore wind farm, once again allowing construction to resume (for the second time).
Explaining his ruling from the bench Monday, U.S. District Judge Royce Lamberth said that project developer Orsted — and the states of Rhode Island and Connecticut, which filed their own suit in support of the company — were “likely” to win on the merits of their lawsuit that the stop work order violated the Administrative Procedures Act. Lamberth said that the Trump administration’s stop work order, issued just before Christmas, amounted to a change in administration position without adequate justification. The justice said he was not sure the emergency being described by the government exists, and that the “stated national security reason may have been pretextual.”
This case was life or death for Revolution Wind. If the stop work order had not been enjoined, Orsted told the court it may not have been able to secure proper vessels for at-sea construction for long enough to complete the project on schedule. This would have a domino effect, threatening Orsted’s ability to meet deadlines in signed power agreements with Rhode Island and Connecticut and therefore threatening wholesale cancellation of the project.
Undergirding this ruling was a quandary Orsted pointed out to the justice: The government issued the stop work order claiming it was intended to mitigate national security concerns but refused to share specifics of the basis for the stop work order with the developer. At the Monday hearing on the injunction in Washington, D.C., Revolution Wind’s legal team pointed to a key quote in a filing submitted by the Justice Department from Interior Deputy Assistant Secretary Jacob Tyner, saying that the Bureau of Ocean Energy Management, the federal offshore energy regulator, was “not aware” of whether the national security risks could ever be mitigated, “and, if they can, whether the developers would find the proposed mitigation measures acceptable.”
This was the first positive outcome in what are multiple legal battles against the Christmas stop work orders against offshore wind projects. As I reported last week, two other developers filed individual suits alongside Orsted against their respective pauses: Dominion Energy in support of the Coastal Virginia offshore project, and Equinor over Empire Wind.
I expect what happened in the Revolution Wind case to be the beginning of a trend, as a cursory examination of the filings in those cases indicate similar contradictions to those that led to Revolution winning out. We’ll find out soon: The hearing on Empire’s stop work order is scheduled for Wednesday and Coastal Virginia on Friday.