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.
