Advocates See Trump’s Move to Kill Wind as Legally Vulnerable

The Interior Department’s inconsistent treatment of migratory birds could be an opportunity for renewable energy advocates to show courts a clear example of the Trump administration’s capriciousness in its battle against wind and solar development, attorneys say.

Clean energy supporters expect to show that the Trump administration is using laws designed to safeguard migratory birds and other species to flip the script on environmental protection—to promote fossil fuels and shut down renewables, said Nick Krakoff, senior attorney at the Conservation Law Foundation in New Hampshire.

“It’s part of this sort of reinterpretation of many statutes and regulations to target a specific industry, and loosening those regulations to favor the fossil fuel industry,” he said.

Both Trump administrations have sought to re-interpret the 1918 Migratory Bird Treaty Act to favor the oil industry. The act implements treaties with Canada, Mexico, Japan, and Russia to protect migratory birds by banning their “take,” or accidental killing, without federal authorization.

Every administration before President Donald Trump was first elected interpreted the law as blocking accidental bird killings. But after BP was fined $100 million for bird deaths resulting from the Deepwater Horizon oil spill in the Gulf of Mexico, the first Trump administration’s Interior solicitor issued a 2017 legal opinion saying the law only blocks intentional bird killings, a move that resulted in tense congressional hearings.

Now, the second Trump administration is seeking to use the MBTA against wind turbines even as it seeks to reduce oil industry liability under the act.

The Biden administration withdrew the 2017 solicitor’s opinion, but the Interior Department reinstated it in April, once again allowing the oil industry to avoid punishments for accidental bird deaths.

Interior Secretary Doug Burgum in July launched a review of wind turbine-related migratory bird killings under the MBTA and related laws to determine whether those deaths were considered accidental under the law.

Interior’s use of MBTA regulations to scrutinize wind projects is likely to be one of the first concrete examples of the Trump administration acting arbitrarily toward renewables, said Jennifer Danis, federal energy director of the Institute for Policy Integrity at the New York University School of Law.

It’s unclear how the Interior Department would create an administrative record justifying loosening rules for fossil fuels developers while strengthening them for renewables projects, she said.

“That’s the essence of ‘arbitrary and capricious,’” Danis said.

Playing Favorites

The first legal challenge to Trump’s initial anti-renewables moves came in May when New York led 17 states and the District of Columbia suing the Trump administration in US District Court for the District of Massachusetts over allegations it arbitrarily halted wind energy approvals.

The New York v. Trump litigation is just the leading edge of a coming “wave of lawsuits” aimed at renewables, said Susan Kraham, managing attorney at Earthjustice. The nonprofit environmental law firm represents some amici in the suit.

Renewables advocates in future cases are likely to show that the Trump administration isn’t protecting birds or the environment with its crackdown on wind and solar, said Sarah Krakoff, an environmental law professor at the University of Colorado Law School.

“Rather, it is disfavoring a particular sector of the energy industry while under-regulating others for reasons that are not driven by energy demand or species protection,” said Krakoff, who was a deputy Interior solicitor in the Biden administration and is now a deputy solicitor general in the Colorado attorney general’s office.

An Interior Department spokesperson said it “does not litigate through the media, nor does leadership agree with the presumption that there is a disconnect in our approach to energy development.”

Energy projects of all kinds are approved on a case-by-case basis, the spokesperson said.

American Clean Power, the onshore wind industry’s trade group, declined to comment for this article. The Oceantic Network, the offshore wind trade group, didn’t respond to a request for comment.

Migratory Birds

Incidental migratory bird killings related to wind projects are underprosecuted compared to those connected to oil development, Interior said in its 2017 legal opinion, which cited court rulings siding with oil companies that had been prosecuted under the act.

But MBTA violations in general are rarely prosecuted, and the department is breaking with a long record across administrations of endorsing renewables so long as developers mitigate effects on migratory birds, said Travis Annatoyn, counsel at Arnold & Porter Kaye Scholer LLP who served as an Interior deputy solicitor in the Biden administration.

Interior has to make the case that renewables developers can be punished for incidental take—accidental harm to protected species—when the department has already gone on record saying the MBTA precludes it, Annatoyn said.

“These are going to be tough sells if they’re litigated,” and Interior’s success in court is going to hinge on its ability to justify reversing decades of precedent and contradicting its just-reinstated legal opinion on allowing for accidental migratory bird killings, he said.

Other Grounds for Challenge

Renewables advocates are considering ways to challenge Interior on procedural grounds, but developers may stand by and avoid immediate legal action, said Michael Gerrard, faculty director of the Sabin Center for Climate Change Law at Columbia University.

Wind and solar project cancellations may be challenged instead as a breach of contract or of other government commitments, he said.

“Some of the energy companies may decide to keep their heads down out of fear of inviting retaliation from the Trump administration,” Gerrard said.

The Trump administration has also made numerous claims about the dangers and unreliability of renewables, but hasn’t provided any evidence for that, Annatoyn said.

“The administration’s chances of success in litigation is directly correlated with their ability to put their money where their mouth is,” he said.