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Plus more of the week’s biggest project development fights.
The opinion covered a host of actions the administration has taken to slow or halt renewables development.
There was no new investment required from TotalEnergies, according to newly disclosed terms.
New documents add to doubt over President Trump’s deal to buy back the multinational energy company’s U.S. offshore wind leases.
The U.S. and Israel’s war of choice has already destroyed many things, including the president’s domestic energy strategy.
The entire global energy economy has shifted — and yet somehow the administration’s agenda remains exactly the same, just more urgent.
It’s not even clear where the money is coming from.
President Trump’s Day One moratorium on offshore wind leasing and permitting was vacated by a federal judge in December. Weeks later, the president issued stop-work orders on five offshore wind projects that were under construction, citing unspecified national security concerns, but those orders were also soon rejected one by one by the courts.
Trump’s agreement with TotalEnergies this week to buy back the company’s offshore wind leases appears to represent a new tactic to destroy the industry — by paying it to go away.
Total’s CEO, Patrick Pouyanné told CNBC Tuesday that the company was the “first to open the door” to such a deal, and that he suspects the administration “will do other deals with other companies.” The U.S. has sold roughly 40 leases for offshore wind development since 2012, but only eight wind farms have gotten to the construction phase.
Even if other companies were willing to sell their development rights back to the federal government, however, there’s no reason to believe this strategy is any more legally sound than Trump’s stop work orders or permitting pause.
“In virtually all of the instances so far, they are taking steps that are unlawful and certainly unprecedented,” Elizabeth Klein, who served as director of the Bureau of Ocean Energy Management under President Biden, told me, referring to Trump’s efforts to obstruct offshore wind development. “So I don't think they should be given any benefit of the doubt that what they’re doing here is a lawful approach, or that they have the authorization to do what they are doing.”
Key details about the deal have yet to be disclosed, including under what authority the Department of the Interior has agreed to pay Total and where the money is coming from. Here’s what we know and don’t know about the agreement, and the questions it raises about whether this deal was lawful and whether it can be replicated. Neither TotalEnergies nor the Department of the Interior responded to questions for this story.
According to the Department of the Interior’s press release announcing the deal, Total will invest $928 million — the amount it paid for two offshore wind leases in 2022 — in oil and gas production in the United States. Following those investments, the government will terminate Total’s wind leases and reimburse the company for the $928 million.
But the revenue the Department brought in from the 2022 lease sale is not just sitting in the agency’s coffers waiting to be refunded. It went to the Treasury’s General Fund, Klein, told me. The question, then, is what money is the agency using to reimburse Total?
“Has Interior been appropriated $1 billion to refund Total?” Klein asked. “Is there litigation that we all don't know about, and this is part of a settlement? There's a number of questions about how Interior is authorized to take this action.”
On its face, canceling a lease isn’t so extraordinary. The Secretary of the Interior is allowed to terminate a lease agreement if, say, the leaseholder violates the terms, and leaseholders are also allowed to voluntarily relinquish their leases. But in neither case does the law say they are entitled to their money back.
“There's no regulatory authorization that I am aware of that allows Interior to just refund the amount that a lease cost,” Klein said. She noted that Shell, the oil company, let go of almost all of its oil and gas leases in the Chukchi and Beaufort Seas during Obama’s presidency because it determined it could not economically develop them. The company had spent more than $2 billion on the leases and did not get any of that back.
A straightforward reading of the Interior Department’s press release sounds like the agency is taking revenue from an offshore wind lease sale and using it to subsidize oil and gas investments. That would be violating the U.S. Constitution, which says that “No money shall be drawn from the Treasury, but in consequence of appropriations made by law.” The Interior cannot just pay out $928 million in lease refunds or oil and gas subsidies to a company without Congress appropriating funds for that purpose.
That does not appear to be what’s happening here, given that Representative Chellie Pingree of Maine, the ranking member on the House Appropriations subcommittee that oversees the Interior Department’s funding, issued a statement saying that she has “serious questions about where this money is coming from.”
That leaves the other possibility Klein raised — a settlement. TotalEnergies does, in fact, describe the deal as a “settlement” in its own press release. During Pouyanné’s CNBC interview, the CEO claimed that after Trump paused permitting for offshore wind projects, Total issued an ultimatum.
“We went to the government: ‘Look, we could either go to litigate with you. I’d hate that. It is not at all our philosophy,’” he said. “‘Or we enter into a deal. The deal is quite simple. We propose to give you back this license. We paid the Treasury $930 million. You give us back the $930 million, and we are ready to commit that we will invest them in U.S. energy.”
If Total did indeed threaten to sue the Interior Department for halting permitting, the agency may have been authorized to pay Total out of the “judgement fund,” an essentially bottomless fund overseen by the Department of Justice intended for agency settlements. Use of the judgement fund requires evidence of litigation or imminent litigation and approvals from the Department of Justice and the Treasury Department. Considering that Attorney General Pam Bondi was quoted on the Interior Department’s press release, this appears to be the most likely source of the funds.
There are problems with this version of the story, too, however. Pouyanné said the company threatened litigation over Trump’s permitting pause, but again, a court tossed out that permitting pause in December. While the administration is appealing the court’s decision, the judgment weakens Total’s claim and raises questions about the Interior Department’s need to settle, let alone for $928 million. The court’s decision also undermines the case for future settlements with other leaseholders.
Tony Irish, a former solicitor in the Interior Department’s Division of General Law, told me that Pouyanné’s story brings to mind a tactic known as “sue and settle.” The term, which has historically been lobbed at environmental groups, describes a situation in which an interest group sues an administration — typically one friendly to its cause — as a way to advance policy goals without public input. Rather than try to dismiss the claim, the administration settles with the group behind closed doors, often agreeing to initiate new rules as a result. More conspiratorial critics of this practice contend that federal agencies have even colluded with outside groups to file such lawsuits.
There’s been more than a decade of debate over whether this perception of “sue and settle” cases is a real phenomenon or not. Nevertheless, Secretary of the Interior Doug Burgum vowed to address the issue by increasing transparency of agency settlements. Last summer, he issued an order stating that the department’s settlements would be subject to public disclosure. The order describes the creation of an online “litigation transparency portal” where the agency will post all ongoing and resolved settlement agreements, including finalized agreements.
That website has not yet been created, however. To date, nothing related to the Total settlement, if it is a settlement, has been posted to the Bureau of Ocean Energy Management webpages for the leases or in the Federal Register.
Without having access to that documentation, it’s impossible to scrutinize the circumstances that led the Trump administration to settle for such an exorbitant fee. To Irish, the available evidence is consistent with a misuse of power. “It upends the rule of law for agencies to selectively pay off favored parties negatively impacted by a policy choice by just calling it a legal settlement and using an unlimited account of taxpayer funds,” Irish said.
The Fish and Wildlife Service has lifted its ban on issuing permits for incidental harm to protected eagles while also pursuing enforcement actions — including against operators that reported bird deaths voluntarily.
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.
