Maryland Offshore Wind Suit Poised as Trump ‘Election Play’

The fate of a Maryland offshore wind project will hinge on the outcome of the presidential election after nearby coastal communities challenged its federal permit in court last week.

Ocean City, Md., and surrounding communities and businesses filed a suit on Oct. 25 in the US District Court for the District of Maryland claiming that the Bureau of Ocean Energy Management’s environmental review and September approval of US Wind’s 2 gigawatt Maryland Offshore Wind Project was unlawful.

Offshore wind power development has been one of the Biden administration’s top priorities under its climate change agenda, but former President Donald Trump said in May and repeatedly during his campaign that wind turbines are destructive and he’d end offshore wind development on “day one” if he were re-elected.

The wind power industry sees a second Trump administration as a “material four-year risk,” and Ocean City’s lawsuit will be an early indicator of the vulnerability of offshore wind projects in federal waters, said analyst Timothy Fox, managing director of ClearView Energy Partners in Washington.

An ‘Election Play’

The lawsuit, Mayor and City Council of Ocean City, Md., v. US Department of the Interior, “may be more of an election play than anything else,” Fox said. “In order for the court to uphold the permit, the federal government needs to defend the process in approving that project.”

“The petitioners behind the lawsuit may think that under a Trump administration, the Bureau of Ocean Energy Management could voluntarily remand its own decision,” he said.

BOEM, the Trump campaign, and plaintiffs’ counsel Bruce Bright of Ayres, Jenkins, Gordy & Almand PA, didn’t respond to requests for comment.

The plaintiffs, who say they’re concerned about the Delmarva Peninsula’s tourism industry, claim that BOEM and the National Marine Fisheries Service ran afoul of a slate of environmental laws. That’s partly because they didn’t conduct a sufficiently thorough environmental impact statement for the project or incorporate the impacts of climate change in their analysis, violating the National Environmental Policy Act and the Administrative Procedure Act, the plaintiffs claim.

They also claim that the wind farm would jeopardize the North Atlantic right whale, violating the Endangered Species Act.

“There is no analysis of how the thousands of turbines across the 30-plus projects will impact the travel and behavioral patterns of these endangered whales,” the lawsuit says. “If there are wind projects all along migration routes, will whales stay in areas where construction has not yet started? Where will whales go to avoid increased vessel traffic, construction noises, explosions, and the destruction or displacement of food?”

Fox said the lawsuit closely mirrors litigation challenging the Vineyard Wind project in Massachusetts, and analysts believe BOEM officials have anticipated litigation and conducted a thorough environmental review of the Maryland project.

But, he said, if Trump is elected, lawsuits such as Ocean City’s give him a clear avenue to reverse the Biden administration’s offshore wind accomplishments.

“We’ve been warning clients about this in offshore wind for almost two years,” Fox said.

Michael Gerrard, an environmental lawyer and faculty director of the Sabin Center for Climate Change Law at Columbia University, said that there is some risk that the Justice Department under a Trump administration would try to settle the case on the grounds of admitting the plaintiffs are correct.

The developer, US Wind, which is not a party to the litigation, would likely oppose such a settlement, and the Justice Department would have to explain why it’s reversing a position it previously took supporting agency decisions to approve wind projects, he said.

US Wind didn’t respond to a request for comment.

Confidence in Offshore Wind

Paul Pinsky, director of the Maryland Energy Administration who was appointed in 2023 by Gov. Wes Moore (D), said the “silly” lawsuit was filed by conservative Marylanders hoping the outcome of the election will help them kill a wind project they think will be unsightly.

“They’re hopeful that the election will turn out their way and maybe the Justice Department will do something if the Republican candidate wins,” Pinsky said.

Others watching the offshore wind industry say they’re confident the Maryland project will proceed.

“We know opposition groups use lawsuits as a tactic to delay and derail all types of major infrastructure projects,” said Kris Ohleth, director of the Special Initiative on Offshore Wind, a New Jersey-based nonprofit offshore wind advocacy group. “We also know that virtually every offshore wind project has been litigated against, and not a single lawsuit has been successful.”

Ohleth said BOEM’s environmental analysis of the Maryland project was robust, and she’s confident the lawsuit will fail.

The case is Mayor and City Council of Ocean City, Md. v. US Dep’t of the Interior, D. Md., No. 1:24-cv-03111, 10/25/24.