Multi-state lawsuit to stop wind-stopping executive order inches ahead – Watts Up With That?

From CFACT

By David Wojick

A federal judge has made a deeply waffling judgement in the suit by 17 states to end the January 20th executive order (EO) stopping all federal approvals of wind power permits. Some aspects appear to have been clarified by verbal statements at a hearing, but the judge has reserved the right to change his mind when he issues his written opinion. So in a sense, nothing has been decided.

Verbally the judge has said several important things that would move the suit along. The states do have standing to sue. Moreover, this EO is a “final action” under the Administrative Procedures Act (APA). The federal attorney had argued that it was not final, just an investigatory pause, but that argument failed (so far).

As of now, the next judicial event will not be until September, which is near the end of the construction season for a lot of offshore wind. So there is apparently no emergency involved, which gives other wind-stopping actions time to build. A number are in progress by CFACT and others, including several lawsuits.

One puzzling verbal ruling is that the numerous agency defendants listed in the suit have been excluded, leaving just the Interior Department. While Interior plays a key role in wind power permitting, many other agencies also make essential approvals.

For example, the Commerce Department’s NOAA issues the critter-taking permits under the Marine Mammal Protection Act. A single offshore wind project can “take,” or adversely impact, protected mammals tens of thousands of times. No project can proceed without these permits.

Perhaps Interior’s leading role in the investigation mandated by the EO is the reason. The reported focus of the hearing was on this investigation.

I first discussed this lawsuit in “Seventeen states misguidedly sue to block Trump from stopping wind power” here. https://www.cfact.org/2025/05/13/seventeen-states-misguidedly-sue-to-block-trump-from-stopping-wind-power/.

As the title indicates, I think the states may be taking the wrong approach to stopping the EO. They argue that the EO falls under the APA, which normally requires publication of a proposal with notice and public comment together with reasons for the action. Since these steps were not taken, they argue the action is illegal.

Given the verbal ruling that the EO falls under the APA, the states seem to be well on their way. But if they win, the judge is likely to simply rule that the Trump administration must follow the APA. What the states seem oblivious to is that this can be done without lifting the ban on agency approvals.

In fact, the APA allows for what are called “interim final rules.” Here is a textbook explanation: “Interim final rules (IFRs) are rules issued by federal agencies that become effective upon publication without first seeking public comment on the rules’ substance. Instead, federal agencies solicit public comment at the time of publication and may make changes to the rules depending upon that feedback. Often used during emergencies and other times of need, IFRs can help expedite the regulatory process to put in place binding regulatory requirements in short order.”

https://www.americanactionforum.org/insight/interim-final-rules-a-primer

So each of the numerous wind power permitting agencies can simply issue interim final rules implementing the stopping of approvals that the EO presently does. Of course the states can then sue on each of these rule-makings, but that could tie things up for a very long time.

In fact, the agencies might even win, arguing, as the EO does, that past deficiencies make the entire wind power permitting process questionable. Even worse (or better), these rule-makings might make the stoppage permanent while the EO only says it is temporary.

In any case, we must await the judge’s written opinion to find out what has actually been decided. He seems to have asked the Feds to explain the EO, the actions taken under it, or something along these lines, by July 2. His written opinion may come later.

The whole show is confused at this point. Stay tuned to CFACT to catch the next act.

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