Wind, Solar Backers Have ‘Playbook’ for Challenging Trump Orders

A series of executive orders from President Donald Trump has renewable energy companies weighing legal options as funding access and permitting regulations remain in flux, deepening uncertainty for the industry.

However, it’s that very uncertainty that’s keeping anyone from rushing to the courts—yet.

The executive orders limited offshore wind leasing, declared a national energy emergency, and urged the “unleashing” of the country’s energy sources.

“Figuring out the impacts of the executive orders on the renewable energy industry is like tap dancing on Jello,” said Elizabeth J. Wilson, professor of environmental studies at Dartmouth College.

However, when the time is right, wind and solar backers can look to litigation against prior administrations for a potential legal blueprint to challenge Trump’s pro-fossil fuel agenda.

“You could have what happened during the Biden years, which was state attorneys general filing lawsuits against the federal government to challenge the executive orders as lacking any basis in the statute,” said Matthew B. Eisenson, a senior fellow at Columbia Law School’s Sabin Center for Climate Change Law.

Former President Joe Biden‘s efforts to promote his climate change-minded energy agenda via executive order “were stopped in court,” Eisenson said. Previous litigation shows a “playbook” to follow for challenging energy permitting pauses, including for renewables, he said.

Statutory Authorization Lacking

“There is tension between the grants of authority where Congress has given an independent agency discretion to consider all factors bearing on the public interest and an executive order that purports to tell independent agencies to reinterpret those same statutes differently,” said Jennifer Danis, federal energy policy director at the Institute for Policy Integrity at the New York University School of Law.

Section 7 of the Natural Gas Act, for example, gives the Federal Energy Regulatory Commission sole discretion over reviewing interstate natural gas pipeline applications. That precedent, which the agency has consistently used, would be hard for an executive order to overturn, she said.

Recent court decisions have in fact blocked executive orders that go against what Congress delegated to the executive branch.

In 2021, Louisiana and 12 other states challenged a Biden order pausing new oil and gas leases on public lands. They argued the Outer Continental Shelf Lands Act and the Mineral Leasing Act set out specific statutory duties that require agencies to further the development of energy resources.

The case resulted in a permanent injunction blocking the lease pause in the plaintiff states because the judge said the president can’t make significant changes to OCSLA or MLA that Congress didn’t delegate.

Many of the same states sued over the Biden administration’s halt on permits for exporting US liquefied natural gas to countries without free trade agreements. They argued that the natural gas law requires that export licenses be issued unless they’re found to be inconsistent with the public interest.

A federal judge granted a preliminary injunction blocking that order, saying a moratorium on considering export applications “directly contravenes” the language of the NGA. Trump lifted the moratorium in January.

“For a lot of Northeast states, offshore wind is really critical to meeting their climate goals,” said Ted Kelly, director and lead counsel for US clean energy at the Environmental Defense Fund.

It’s “very possible” that state attorneys general will be “looking at challenges” in the future, he said.

Awaiting Impact

Despite that legal groundwork, “we haven’t really seen direct legal challenges yet” in part because “we’re still in this kind of period of uncertainty,” Kelly said.

The renewable energy industry is figuring out the terrain created by the executive orders, said Clean Energy for America’s president Andrew Reagan.

“Right now, we’re not aware of anyone on the industry side who is challenging the executive orders on the legal front,” he said. “Until there is a direct impact—I think most companies are gonna make the calculation it’s not advantageous to go fight the administration in court,” Reagan said.

One such order whose effects aren’t immediately known temporarily withdrew areas on the Outer Continental Shelf from offshore wind leasing. It also directed relevant agencies to review current permitting practices for wind projects.

Interior is implementing Trump’s memorandum, “temporarily withdrawing the Outer Continental Shelf from offshore wind leasing,” an agency spokesperson told Bloomberg Law. “The memorandum also pauses new or renewed approvals, rights-of-way, permits, leases, or loans for offshore wind projects pending a review of federal wind leasing and permitting practices.”

Review of existing offshore wind projects will receive different treatment than those still in the proposed stage, Interior Secretary Doug Burgum said.

Under guidance from a separate executive order, the US Army Corps of Engineers temporarily paused Clean Water Act permitting on 168 renewable energy projects across the country. The agency lifted that pause not long after.

“The original pause on permitting activities for certain energy projects was initiated to ensure compliance with the Executive Order on Unleashing American Energy,” a Corps spokesperson told Bloomberg Law. “After further interagency review and coordination, it was determined that USACE could continue with these permitting activities.”

A pause on wind and wind-related energy projects remains in place to comply with the temporary withdrawal executive order, the agency said.

One of the more disruptive moves for the industry has already faced litigation: the review and freezing of federal funding for a litany of programs, including a $400 billion green bank for clean energy projects and a consumer tax credit for electric vehicles.

Advanced Energy United, a clean energy industry association, “has been a supporter of bipartisan efforts at permitting reform,” but “to really undertake meaningful permitting reform that accelerates the build out of this work—that needs to be done through a legislative process,” Managing Director Harrison Godfrey said.

“The president does not have within their power the ability to unilaterally overturn existing environmental permitting,” he said.