Another courtroom win for Trump – this time defending offshore wind
Federal court grants administration’s motion to dismiss two counts of lawsuit against US Wind’s Maryland project but allows others to proceed
A federal court on Wednesday granted the Trump administration’s motion to dismiss two counts of a lawsuit directed at US Wind’s 2GW Maryland project while allowing the remaining six counts to proceed - offering a partial victory to the Department of Justice (DoJ) and the array.
A consortium of plaintiffs led by Ocean City, Maryland, is suing the federal government for its approval of US Wind’s project off the Delaware and Maryland coasts, claiming it violated multiple environmental and historic preservation laws.
In March, President Donald Trump’s DoJ issued motions defending the array's consent.
“This is the first instance we are aware of in which the Trump Administration has filed a brief defending an offshore wind permit issued by the outgoing Biden administration,” research consultancy ClearView Energy Partners said.
Trump’s Inauguration Day anti-offshore wind memorandum not only froze leasing and permitting but allowed DoJ, the option of settling cases in favour of plaintiffs.
Chief regulator Bureau of Ocean Energy Management (BOEM) approved the array last December, one of the last greenlit under former President Joe Biden.
DoJ moved to dismiss counts related to the Coastal Zone Management Act (CZMA) and the Migratory Birds Treaty Act (MBTA), both of which were granted by the Maryland District Court.
The ruling doesn’t necessarily imply a thawing in Trump’s hostility towards the sector, ClearView observed.
The federal government’s argument against the CZMA claim “appears to us as more procedural than merit-based (i.e., petitioners failed to adhere to judicial requirements),” ClearView wrote.
Noting that CZMA requires that projects be consistent with state management programmes, and that both Delaware and Maryland signed off on the array, plaintiffs have “failed to state a viable CZMA-based claim,” judge Stephanie Gallagher ruled.
Regarding the MBTA claim, Gallagher noted the law doesn't apply to commercial activity that indirectly impacts migratory birds.
“BOEM’s action in approving US Wind’s Project did not involve any direct take of migratory birds,” she added.
ClearView noted again that in moving to dismiss the complaint, the Trump administration may have been more concerned about setting “a precedent in which the federal agency could be liable for a purely regulatory action, whether it be for offshore wind or some other resource.”
Seven other counts alleging violation of federal law were allowed to proceed and the project remains in legal jeopardy.
Industry litigation
At least seven of the 10 projects approved under Biden have been targeted by litigation, with all successfully defended so far.
“We think the Biden Administration anticipated legal challenges and sought to complete environmental review and issue permits that could withstand judicial scrutiny,” Prasad said.
DoI oversees offshore wind through BOEM.
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