Vineyard Wind survives its years of legal drama. Trump’s reelection may make it harder for other wind farms, though.
The incoming president says he’ll scrap offshore projects on “day one.” Is the industry doomed?
When the Biden administration approved the Vineyard Wind project in May 2021 it marked a hopeful step forward for American offshore wind development and was quickly heralded as a “breakthrough” for the industry.
Not everyone was pleased. A group of residents living on nearby Massachusetts shores, and fishermen who trawl the waters, quickly filed several lawsuits. They raised numerous concerns, including that the project’s turbines would harm local tourism, an endangered species of whale and make it more dangerous to fish.
This past week, a federal appeals court rejected what may be the last of those lawsuits, essentially clearing what could be the last major hurdle for the joint venture between Avangrid and Copenhagen Infrastructure Partners.
But while the legal outcome is a clear win for the developers — not to mention a lame-duck presidential administration that once set its sights on massive offshore renewables growth as a way to combat climate change — one thing for certain is that lawsuits like those can still cause major damage.
“Because a wide variety of federal environmental laws are implicated in these projects, it is very easy for well-heeled plaintiffs to bring challenges to delay projects for years,” Joel Eisen, a professor at the University of Richmond School of Law who has studied renewables issues for decades, told Landmark.
A ‘day one’ promise
Donald Trump, who will be inaugurated to a second term next month, has said offshore wind is ugly, expensive and inefficient — and has promised to make the offshore wind regulatory environment much more difficult.
The former and future president has said he will scrap offshore projects “on day one,” and legal experts say that there are virtually no legal requirements that his administration sell leases for offshore wind farms in federal waters.
That means projects that have already been permitted during the Biden administration will trudge along, fighting whatever legal challenges they have on deck.
While the challenges to Vineyard proved unsuccessful, legal experts are carefully watching the remaining cases out there to see whether different courts come to different conclusions as to the adequacy of federal agency reviews. The First U.S. Circuit Court of Appeals generally deferred to the complex record those agencies put together for Vineyard, but there is no guarantee that every court will come to the same conclusions as to other projects.
And if one of those challenges proves successful and stops a project — say the one challenging a major farm being put together by Dominion Energy off the shores of Virginia, a state within the Fourth Circuit — then that split could be a good opportunity to get the U.S. Supreme Court involved.
Roger Marzulla, an attorney who represented fishing industry and business interests in litigation challenging the Vineyard Wind project, told Landmark that he expects the incoming Trump administration will take a new look at projects like Vineyard and the Dominion project.
Marzulla argued that offshore wind projects aren’t as environmentally friendly as environmentalists and proponents might suggest, noting that a turbine blade in already-constructed portions of the Vineyard farm broke apart and cast debris all around this past summer.
Either way, he said the issue presented in the lawsuits “is a critically important issue that the Supreme Court will likely have to decide.”
Falling behind
When Vineyard was approved, Europe and China had already invested heavily in offshore wind, while the United States had lagged far behind. Just seven turbines had been installed and were spinning off U.S. coasts. Those could produce 42 megawatts of power — or enough to power a small town of about 42,000 homes.
The Vineyard project promised to be a big first step in correcting the global disparity, feeding 800 megawatts of electricity to the northeastern grid. The 62-turbine project would provide enough power to 400,000 homes, but more importantly would be the first of many big projects toward a goal of installing 30 gigawatts (30,000 megawatts) of offshore power in U.S. waters.
Secretary of Commerce Gina Raimondo said the approvals showed the U.S. “can fight the climate crisis” after years of inaction during Trump’s first presidency. Interior Secretary Deb Haaland said it would “create good-paying union jobs” and advance economic opportunity in the U.S.
All of that fanfare was perhaps reflective of a new administration with lofty goals. It didn’t, of course, note the fate of the Cape Wind project — a commercial offshore wind farm that was stymied by years of legal, financial and political headaches.
That project could have jumpstarted American offshore wind years earlier. But, months after Trump took the White House in 2017, the developer announced they were pulling the plug.
Over a dozen lawsuits remain challenging other big wind farms that have been approved by the Biden administration. And even eventual courtroom losses for challengers can succeed in delaying projects policymakers see as urgently needed to reduce carbon emissions and slow global warming. For Vineyard, while requests to block construction were repeatedly denied in the lawsuits, the drawn-out legal fight shows the courts can add strain as outside forces — whether they be inflation, supply chain shortages or major elections — take their toll.
But Eisen, the University of Richmond professor, said that it is notable that the landscape has changed somewhat. He said projects would have faced certain doom in the courts 20 years ago. But Vineyard shows that may not be the case today.
“It’s an uncertain legal landscape, to be sure, but it’s also one where it looks like developers have scored some important wins,” he said.