White House Efforts To Kill The Offshore Wind Industry Fare Poorly In Court

The White House has made no secret of the president's animosity towards wind energy, particularly offshore wind, and in fact has taken concrete steps to thwart the industry. On Jan. 20, 2025 the president issued a Presidential Memorandum that, among other things, purported to halt the federal review and permitting of wind projects in the planning, design and application stages (Wind Order). A district court has already ruled that the Wind Order is illegal, though federal defendants will likely appeal. See New York v Trump, 25-cv-11221 (D. Mass., Dec. 8, 2025).

The administration then quickly shifted tactics; on Dec. 22, 2025 the Acting Director of the U.S. Bureau of Ocean Energy Management issued an order suspending leases for five fully permitted and under-construction offshore wind projects on land leased by the federal government a decade or so ago, including two that would supply power to New York. (Suspension Order). All five developers have sued and thus far every court to weigh in (four) has ruled that (i) the Suspension Order is likely illegal and (ii) plaintiffs would suffer irreparable harm without an injunction. This article summarizes the current litigation status, New York's unique interests in offshore wind, and global repercussions

The Wind Order was Intended to Halt Future Offshore Wind Projects

On Jan. 20, 2025 Donald Trump issued a Presidential Memorandum titled "Temporary Withdrawal of all Areas on the Outer Continental Shelf from Offshore Wind Leasing and Review of the Federal Government's Leasing and Permitting Practices for Wind Projects" (90 Fed. Reg. 8363). It withdrew submerged lands from future leasing for wind under the Outer Continental Shelves Lands Act (OCSLA) (leaving them available for oil and gas production) and directed relevant agency heads to halt review and permitting of onshore and offshore wind projects that have not yet received federal approvals. Ironically some of the impacted projects secured their lease rights during the first Trump administration.

The U.S. District Court for the District of Massachusetts Has Vacated the Wind Order and Declared it Unlawful

In New York v. Trump, the federal district court for the District of Massachusetts decisively ruled that the Wind Order violates the Administrative Procedures Act. The plaintiffs include not only New York, but also 16 other states ranging from Massachusetts to Arizona (and an intervenor, the Alliance for Clean Energy, New York). The defendants include President Donald Trump and a slew of agency heads and agencies. The broad plaintiff group underscores the importance of both upland and offshore wind to the energy plans and economies of many American states

Plaintiffs argued that the Wind Order itself, and the agencies' decisions to follow the president's directives were both arbitrary and capricious, and contrary to law. Ultimately the court agreed, and rejected Defendants position that, in acting on the president's directive to halt reviews and permitting for wind projects, the agencies were by definition acting legally and rationally (i.e., "the president made me do it.") The court reasoned that unless a statute gives the executive branch the authority to dictate the terms of a permitting scheme (which the Outer Continental Shelf Lands Act, OCSLA, and other relevant environmental laws do not), federal agencies cannot hide behind an executive memorandum or order to justify their actions. (distinguishing the U.S. Supreme Court's recent decision in Trump v. Orr, ___ U.S. ___ (2025) because the underlying statute in Orr committed the "exercise of discretion to... the president' himself")

The court further stated, "[t]his scant administrative record makes clear, and the Agency Defendants do not meaningfully dispute, that the Agency Defendants have not 'reasonably considered the relevant issues and reasonably explained their decision' to implement the Wind Order...Indeed, the Agency Defendants candidly concede'" the sole basis for their actions is a presidential order. The court also held that the order's "halt" on permitting and other reviews and decision making violated the APA's requirements that agencies "conclude . . . matter[s] presented" to them and "make [their] decision[s]" on applications "within a reasonable time." (citations omitted) Despite the plaintiffs' victory in court, it is not clear whether federal agencies will in fact restart review and permitting for the 15 to 20 projects in the permitting pipeline (to say nothing of the hundreds of upland projects)

The Suspension Order was Intended to Halt Five Major Projects Under Construction

On Dec. 22, 2025 the acting director of the Department of Interior's Bureau of Ocean Energy Management issued sweeping orders to five offshore wind projects, suspending their rights under leases (issued over a decade ago in most cases)—Vineyard Wind (Massachusetts), Revolution Wind (Rhode Island), Empire Wind and Sunrise Wind (New York) and Coastal Virginia Offshore Wind (Virginia). Each of these projects have all their permits and approvals after undergoing multiyear application and environmental review processes. Construction is well underway, and some projects are partially operational. Developers have already invested billions in development and construction

The Suspension Order's breadth and vagueness is best conveyed by quoting it directly: In November 2025, the Department of War (DoW) completed an additional assessment regarding the national security implications of offshore wind projects, and provided senior leadership at the department of the Interior with new classified information, including the rapid evolution of relevant adversary technologies and the resulting direct impacts to national security from offshore wind projects. These impacts are heightened by the projects' sensitive location on the East Coast and the potential to cause serious, immediate, and irreparable harm to our great nation

Based on BOEM's initial review of this classified information, the particularized harm posed by this project can only be feasibly averted by suspension of on-lease activities. In coordination with DoW, BOEM will determine whether the national security threats relating to this project can be mitigated and invites you to meet and confer about that possibility. Given the construction status of this project, BOEM will consider all feasible mitigation measures before making a decision as to whether the project must be cancelled.

It is not clear what security issue has suddenly arisen. OCSLA regulation 30 CFR 585.417 permits suspensions only to meet judicial requirements or "for reasons of national security or defense."

Four District Courts have Enjoined the Suspension Order, and the Fifth is Likely to Do So Too

Each of the developers of the five suspended projects have sued the Department of the Interior and Secretary Burgum to have the suspensions vacated and declared unlawful on procedural and substantive grounds (e.g. exceeding statutory authority, arbitrary and capricious, violating due process and statutory notice requirements). They have also each sought preliminary injunctions, and to date, four injunctions have been granted. A fifth—Sunrise Wind's—is still pending, but oral argument is scheduled for Feb. 2, 2026.

The court in the case Empire Leaseholder LLC v. Burgum, No. 1:26-cv-00004-CJN (D. D.C., Jan. 15, 2026), found that Empire met the standards for a preliminary injunction concerning the suspension of its offshore wind lease and permits issued by the federal government in 2024 (after a decade of review). Ruling from the bench, Judge Carl J. Nichols found that Empire was likely to succeed on at least one of its claims, particularly the claims that the Suspension Order was arbitrary and capricious, and violative of Empire's due process. The court gave little credence to the notion that the alleged national security reasons that the defendants confidentially briefed the court about required immediate cessation of construction pending a final decision on the merits

Empire Wind is hugely important for both the plaintiffs and New York State as a whole. Empire was 60% complete when the Department of Interior issued the Suspension Order and the project sponsors have already spent four billion dollars. The project's 2,000 megawatts of power are essential to supplying power to downstate New York users and would generate the equivalent of three or four gas-fired power plants

Three other challenges to the Suspension Order had the same result, and the remaining challenge (Sunrise Wind) will also likely end with a preliminary injunction. The parties will proceed to a final decision on the merits, and the federal defendants may also try to bring interlocutory appeals to vacate the injunctions.

New York, Governed by Its Own Demanding Climate Law, Is Uniquely Harmed by the Orders

New York has one of the most demanding climate laws in the nation. The state's Climate Leadership and Community Protection Act (CLCPA) mandates substantial reductions in greenhouse gas emissions, requiring a 40% reduction from 1990 emissions levels by 2030 and an 85% reduction from 1990 levels by 2050. (NYS Environmental Conservation Law 75-107). The CLCPA also requires utilities (via amendments to the Public Service Law) to provide an increasing proportion of power from "renewable" sources—70% by 2030—and to secure 100% from "zero emissions" sources by 2040. Finally, the CLCPA mandates the development of nine gigawatts of offshore wind energy by 2035. NYS Public Service L. 66

New York cannot comply with these mandates without offshore wind. Moreover, offshore wind is a critical part of the state's plan for grid resiliency and growth to meet the expected substantial increases in electricity demand due to new large load projects (e.g. microchip fabrication and data centers) and building electrification. The orders therefore uniquely harm New York.

Is the White House Distinguishing Between Upland and Offshore Wind?

Wind energy already supplies 10% of U.S. electricity and grows annually, overwhelmingly from upland wind farms. Is the president inclined to allow upland wind to grow while ending offshore wind? It is unclear although the president has condemned all forms of renewable energy as ugly and unreliable. The Wind Order halts review and permitting for both types of wind

But the Wind Order uniquely harms offshore wind. The distinction lies in the fact that the federal government owns the ocean floor beyond three miles from shore. Every offshore wind project relies directly on leasehold rights from the federal government. Upland wind projects are generally not on federal land and may or may not require federal permits. Still, it is unusual for the White House to be targeting an industry that has become a huge part of the economy in reliably Republican states like Texas, North Dakota and Iowa

Allowing These Orders to Go Into Effect Will Produce Significant Economic Harm

While making predictions about the economic future of both upland and offshore wind is beyond the scope of our expertise, we conclude by noting that one of the strongest factual and policy arguments against both the Wind Order and the Suspension Order is the rapid expansion of wind energy's importance in the global economy. The top ten countries with offshore wind (China, United Kingdom, Germany, etc.) collectively have 327 offshore wind farms in operation and dozens more under development. Wind power, both upland and offshore, supplies a substantial percentage of electricity (ranging 10% in China to 57% in Denmark) in these countries and it grows annually

Due largely to onshore wind, the United States has more wind power capacity than every country except China. If the appellate courts and Supreme Court eventually allow the Wind Order and Suspension Order to go back into effect, the end result would be placing the United States at a distinct economic disadvantage in a growing industry for decades

Originally published by New York Law Journal

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