Why Should Delaware Care?
A wind farm proposed off the coast of Ocean City, Md., would bring the construction of an electrical substation running high-voltage cables through one of Delaware’s Inland Bays. For years, it’s been the subject of intense debate and legal challenges both in state and out of state.
A legal challenge filed by an offshore wind developer hoping to protect its construction approvals for a project off the Delmarva coast from Trump administration interference was rejected on Monday.
A federal judge ruled that the developer, Baltimore-based US Wind, failed to prove an effort by the government to re-examine its previously approved permits would bring about legal harm to the company.
Referencing the ongoing efforts by the Trump administration to send back the wind developer’s construction approvals back to the government for further review, the judge presiding over the case, Stephanie A. Gallagher, said she cannot weigh the legality of an action that has not happened yet.
Her ruling comes after another order she issued earlier this month, shutting down the administration’s review effort until it could prove it was appropriate for this case.
The ruling represents the latest setback for US Wind, which hopes to build 121 turbines off the coast of Ocean City, Md. The controversial project has been ensnared in legal challenges for years.
Officials in Ocean City sued the federal government last year, challenging the validity of US Wind’s permits soon after they were issued by the Biden administration.
US Wind, however, did notch a win earlier this year in Sussex County after Delaware lawmakers allowed the developer to move forward with its plans to build a substation for its wind farm in southern Delaware, overriding intense local opposition to the project.
Still, Monday’s decision embodies the ongoing chaos that has swirled around US Wind’s offshore project, as neither party has walked away with meaningful progress in recent months.
What did the judge rule?
Monday’s opinion examined a counterclaim filed by US Wind in September, requesting Gallagher rule that efforts by the Trump administration to review its permits were unconstitutional, and would cause the company “substantial harm.”
The company also claimed in separate filings that if the permits were to be reviewed, and ultimately revoked, the company would go bankrupt. But Gallagher wrote in her opinion that US Wind still has its permits, and nothing outside of financial concerns prevents the developer from beginning construction.
“US Wind may continue to develop the project under the approved COP that remains in force,” Gallagher wrote. “It simply has made a business decision not to do so in light of the political headwinds it perceives.”
Gallagher also wrote that US Wind failed to demonstrate how the government’s request to review the permits would bring about legal consequences for the company. She differentiated between the business uncertainty that comes with regulatory approvals and actual criminal and civil consequences that would come from such a decision.
Monday’s opinion comes weeks after Gallagher also denied a request from government attorneys asking her to allow for a “voluntary remand,” which would send US Wind’s permit approvals back to an administrative agency for review.
The reasons for Gallagher’s denial were included in a transcript of a call between attorneys in September, but that transcript won’t become publicly available online until later this month.
While the transcript for that call remains unavailable, Monday’s opinion suggests she denied the Trump administration’s effort because the government had yet to prove a remand was the best option.
“This Court denied Federal Defendants’ motion to remand and vacate without prejudice, concluding that it needed the administrative record to determine whether remand or vacatur is appropriate,” Gallagher wrote.
Both decisions – the denial of the government’s request for a mandatory review and US Wind’s subsequent counterclaim – were dismissed without prejudice. That means they could be considered again if circumstances change, or a party is able to present a stronger case.
In a statement from a Trump administration spokesperson on Wednesday, the administration repeated its belief that offshore wind projects “were given unfair, preferential treatment” during the Biden administration.
US Wind said in a statement on Wednesday it is confident in its permits, and it will “vigorously defend them” in court.