The crackpot king loses his bid to shut down offshore wind
Back in January, I wondered whether wind investors had standing to sue the Trump administration over the inauguration day memorandum suspending all federal approvals for offshore wind projects. It turns out the answer is yes, but the investors I had in mind — individual and big name institutional investors — are not the stakeholders who prevailed at the Massachusetts District Court yesterday in State of New York et al. v. Trump.
Instead, it was a coalition of states “with investments in wind development” and the Alliance for Clean Energy New York, whose members face the prospect of “billions of dollars in stranded investments.” These plaintiffs showed “ample evidence” that they were harmed by the federal government’s actions, and they also satisfied the court that the pause in wind development was unlawful, “a final agency action that is arbitrary and capricious and contrary to law.”
This is obviously a welcome outcome, and it will allow some major offshore wind projects to get back on track. (I’m unsure whether this one court victory will do much to lift wind energy stocks over the near term, but shares of both Ørsted and Vestas jumped briefly on the news. )
What I found even more compelling as I read through the order this morning is the route Judge Saris travels to reach her finding that the actions taken by the agencies are arbitrary and capricious. Here, she makes some important distinctions about the limits of presidential directives and agencies’ reliance on them:
the Agency Defendants candidly concede that the sole factor they considered in deciding to stop issuing permits was the President’s direction to do so.
Further, given that the Wind Order constitutes a change of course from decades of agencies’ issuing (or denying) permits related to wind energy projects, the Agency Defendants were required, at minimum, to “provide a reasoned explanation for the change” and to “display awareness that [they were] changing position….” They failed to do so. Instead, they implemented the Wind Order on Inauguration Day without elucidating the “reasons for the new policy.”
To put it bluntly, just because the president doesn’t like offshore wind and has drooled out some crackpot ideas about the harm it does (it drives whales crazy, the noise causes cancer, etc.), that’s not sufficient ground for policy change:
…And even assuming, arguendo, that the Wind Memo itself could be characterized as the Agency Defendants’ own explanation for their manner of implementing it, the Wind Memo does not provide adequate explanation: It merely includes a single sentence citing “various alleged legal deficiencies underlying” wind permitting, “potential inadequacies in various environmental reviews,” and the possibility that these vaguely defined issues “may lead to grave harm.” Temporary Withdrawal of All Areas, 90 Fed. Reg. at 8363 (emphases added). The Court is “unable to divine or fathom a relationship between” this cursory sentence “and the immense scope of the moratorium” on all wind energy authorizations. …Whatever level of explanation is required when deviating from longstanding agency practice, this is not it.
The big takeaway here is that federal agencies —the organs of the much-maligned administrative state — are not merely (or not always) instruments of this president’s erratic will and syphilitic delusions. It’s a common-sense finding that should be read expansively against ongoing efforts to destroy independent agencies and establish personalist rule.
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