Letitia James has 'no leg to stand on' in lawsuit against Trump offshore wind order, experts say

On his first day in office, President Donald Trump made good on a promise to end the Biden administration’s offshore wind blitz with an executive order halting offshore wind leasing during a review of the industry’s impacts. 

Longtime Trump foe, New York Attorney General Letitia James, announced Monday that she was leading a coalition of 17 attorneys general, mostly from solidly blue states, in suing the Trump administration for what James called an “arbitrary halt on new wind energy development across the country.” 

Last month, the Trump administration went further than the moratorium, which applied to new offshore wind leases, in halting construction of Empire Wind, a wind project off the coast of Long Island. Equinor, the developer of the project, the Wall Street Journal reported, was weighing legal options, including an appeal. 

It was perhaps just a matter of time before offshore wind proponents began to take legal action in hopes of preserving the Biden administration’s goal of building out 30 gigawatts of offshore wind by 2030 — roughly 3,000 turbines — along the East and West coasts. Industry opponents, however, doubt James’ legal challenge will save the industry. 

“She doesn’t have a leg to stand on,” Dr. Sterling Burnett, director of the Arthur B. Robinson Center on Climate and Environmental Policy at the Heartland Institute, told Just the News. 

In addition to the James lawsuit against Trump, the Supreme Court on Monday declined to review a petition from the commercial fishing industry challenging the approval of Vineyard Wind project, a 62-turbine wind farm 15 miles south of Martha’s Vineyard that’s currently under construction. 

Stopping offshore wind in its tracks

According to James’ lawsuit, Trump’s moratorium “stopped most wind-energy development in its tracks.” The complaint states that the industry produces “reliable, affordable energy” supporting thousands of jobs and billions in economic activity, which contributes to tax revenues. The complaint later mentions that the 2022 Inflation Reduction Act provides tax credits. By some estimates, all the various tax credits in the act could end up costing nearly $5 trillion by 2050. 

The complaint also argues that, by halting offshore wind projects, Trump was contradicting his declaration of a “national energy emergency.” The moratorium, the lawsuit explains, will also prevent New York from meeting its stringent climate goals, which aims to make the state reach net-zero emissions by 2050. 

“This arbitrary and unnecessary directive threatens the loss of thousands of good-paying jobs and billions in investments, and it is delaying our transition away from the fossil fuels that harm our health and our planet,” James said in a statement. 

Dueling executive orders 

Terry Johnson, a Virginia attorney who serves on the board of advisors for the Committee for a Constructive Tomorrow (CFACT), told Just The News that former President Joe Biden initiated the construction of offshore wind farms with an executive order in 2021, which set a goal of “doubling offshore wind by 2030.” The order also paused all new oil and gas leases on public lands or offshore. 

“This started with an executive order. Now they’re claiming that an executive order stopping it is somehow unlawful. It’s absurd,” Johnson said. 

Burnett said that, not only did Biden initiate the offshore wind construction, the Department of the Interior and associated federal agencies pursued permitting at an expedited pace, which took shortcuts and didn’t follow proper procedures.

“Biden gave them the marching orders. They expedited the review. They approved things they shouldn't have approved,” Burnett said. 

Times are a changing

Dr. David Wojick, senior policy advisor for CFACT, told Just the News that James’ lawsuit is asking the court to take over wind permitting. 

“I see no chance of this happening. The Court cannot make this Administration love wind as its predecessor did, which seems to be the lawsuit's goal. The times they are a changing,” Wojick said. 

Elmer Peter Danenberger, a petroleum engineer who worked in the DOI’s offshore oil and gas program for 38 years, explained on his “Bud’s Offshore Energy” blog that the Outer Continental Shelf Lands Act grants the Secretary of the Interior broad authority to suspend activities when necessary to ensure safety, protect the environment, or allow for further study of potential impacts. 

“Those who are familiar with the administration of the OCS Lands Act know that there is really no such thing as a ‘fully permitted project,’” Danenberger wrote. 

Opponents’ lawsuits

Multiple lawsuits against permitted projects have made the same arguments concerning the improper permitting process the Biden administration followed in approving offshore wind projects. ACK for Whales filed a federal lawsuit with the First Circuit Court of Appeals in 2023, challenging the permitting of the Vineyard Wind. After the First Circuit upheld a district court's decision to dismiss the suit, the group appealed to the Supreme Court. 

Their petition argued that the agencies didn’t consider the cumulative impacts of other planned projects when they approved Vineyard Wind, which violated the Endangered Species Act. In January, the high court declined to review the lower court’s decision. 

Commercial fishing groups, led by SeaFreeze Ltd., petitioned the Supreme Court to review a lower court’s decision to uphold the approval of Vineyard Wind. The petition argues that the First Circuit Court of Appeals failed to consider Loper Bright v. Raimando, which overturned the “Chevron deference” doctrine. This allowed federal agencies broad latitude in interpreting laws when Congress had not provided specific guidelines. On Monday, the high court decided not to review the lower court’s decision. 

“Of course, it’s not the result we wanted, but we will continue to pursue our goal of shutting down the Vineyard Wind project by filing an administrative petition with the Secretary of the Interior, seeking reevaluation of the legal and factual missteps of the Biden Administration in approving a project that is so harmful to safety, the environment, and national defense,” Ted Hadzi-Antich, senior attorney with the Texas Public Policy Foundation, which is representing the plaintiffs in the case, said in a statement. 

Companies facing headwinds 

While James’ lawsuit argues that Trump’s moratorium is preventing New York from achieving its net-zero goals, multiple reports have cast doubt that its plans are feasible or affordable.

Even before Trump issued the moratorium, companies were showing less enthusiasm for offshore wind projects. In late 2023, Orstead canceled two large projects off the coast of New Jersey, leading to a fight over $300 million the state says the company owes over the cancellation. At the same time, Reuters reported, BP said it was pausing new offshore wind projects to focus on oil and gas. 

More recently, Shell announced it was stepping back from new offshore wind developments, Reuters reported. Portugal’s EDP Renewables and France’s ENGIE, the Cape Cod Times reported, is preparing to delay Southcoast Wind, a project off the coast of Massachusetts near Vineyard Wind. 

‘Built upon a fiction’ 

Burnett said that Biden’s push for offshore wind ignored potential impacts to whales, which opponents have been raising concerns about for years. It’s going to drive up costs to ratepayers, and impact commercial fishing, tourism and the viewshed. And, he said, it’s all unnecessary. 

“It’s all built upon the fiction that we face a climate crisis, and offshore wind is a valid way to fight that crisis,” Burnett said. 

Whether James’ lawsuit succeeds or fails, the offshore wind industry faces many more opponents than Trump.