YES!!! SUMMARY JUDGEMENT FOR PLAINTIFFS FIGHTING TRUMP’S CANCELLATION OF OFFSHORE WIND ENERGY PERMITS!
On his first day in office Trump issued, among many others, an executive order titled “Temporary Withdrawal of All Areas on the Outer Continental Shelf From Offshore Wind Leasing and Review of the Federal Government’s Leasing and Permitting Practices for Wind Projects” (the ‘Wind Memo’). The Court just disappeared it.
The part of the Wind Memo at issue says:
“Sec. 2. Temporary Cessation and Immediate Review of Federal Wind Leasing and Permitting Practices.
(a) In light of various alleged legal deficiencies underlying the Federal Government’s leasing and permitting of onshore and offshore wind projects, the consequences of which may lead to grave harm – including negative impacts on navigational safety interests, transportation interests, national security interests, commercial interests, and marine mammals – and in light of potential inadequacies in various environmental reviews required by the National Environmental Policy Act to lease or permit wind projects, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Energy, the Administrator of the Environmental Protection Agency, and the heads of all other relevant agencies, shall not issue new or renewed approvals, rights of way, permits, leases, or loans for onshore or offshore wind projects pending the completion of a comprehensive assessment and review of Federal wind leasing and permitting practices. The Secretary of the Interior shall lead that assessment and review in consultation with the Secretary of the Treasury, the Secretary of Agriculture, the Secretary of Commerce, through the National Oceanic and Atmospheric Administration, the Secretary of Energy, and the Administrator of the Environmental Protection Agency. The assessment shall consider the environmental impact of onshore and offshore wind projects upon wildlife, including, but not limited to, birds and marine mammals. The assessment shall also consider the economic costs associated with the intermittent generation of electricity and the effect of subsidies on the viability of the wind industry.”
In other words, an immediate halt to all authorizations for new, or to-be-renewed, wind energy projects. And several involved agencies (now known as “defendants” ;~) ) did so immediately halt.
Now, I suppose one could magnanimously argue that “it’s for the animals and the environment”, except that simultaneously, of course, Trump is pushing coal.
Also, the Court found *no* evidence that the impact assessments are actually happening, nearly a year later. (Yeah, next month it will be a year since he’s taken office, how crazy is that?)
The Plaintiffs, who are the states of Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, and Washington, along with Washington D.C., and an organization known as ‘Alliance for Clean Energy New York’, sued under our old friend that has held this administration to account in so many of the lawsuits against this administration, the Administrative Procedures Act (‘APA’), along with various other statutes.
A key part of being able to bring an action under the APA is that the agency or agencies in your crosshairs have to have taken an action that is final. And while the executive order has “temporary” right in the title, the Court found (and prior cases have held) that “an interim agency resolution counts as final agency action despite the potential for a different permanent decision, as long as the interim decision is not itself subject to further consideration by the agency. In that event, the interim resolution is the final word from the agency on what will happen up to the time of any different permanent decision.”
I’m not going to go into much further detail, if you’re interested you can read the 47-page order (included for Notes from the Front members), however the key take-away here is:
SUMMARY JUDGEMENT FOR PLAINTIFFS!
As a reminder, summary judgement basically means that the facts are not in dispute, and the law is so clear that there really isn’t a credible controversy, and so the judge can make a determination without the need for a trial.
That is the case here, which means that the administration *should* re-start issuing wind permits and renewals, although I’m sure that they are going to try to appeal it.
Notes from the Front members: the 47-page Opinion and Summary Judgement is in your inbox.
To protect myself from legal claims of impermissible public republication, and attacks by trolls, among other things, I don’t share documents I find publicly, I make them available privately to Notes from the Front members. Sure some of them are public, and you could probably find some of them yourself if you wanted to spend the hours that I do looking for them, but then you wouldn’t get the explanations and insights based on decades of law practice and as a law professor, nor the snark that I inject into those explanations. ;~) And honestly, $5 a month for hours and hours of my time is less than you would pay for a minute of lawyer time anywhere else. You can join below for immediate access to all of the documents, our private chat, etc.. – it’s $5 a month and it’s fine to join and then cancel if you only want certain documents.
https://annepmitchell.substack.com/p/yes-summary-judgement-for-plaintiffs
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