Are Trump's new offshore wind approval standards impossibly high?

Amid the flurry of recent orders by the Trump administration targeting offshore wind, an interpretation of how to apply a 72-year-old coastal law could have dire implications for permitted capacity.

This rule in part took on former President Joe Biden's interpretation of the Outer Continental Shelf Lands Act (OCSLA), passed in 1953 to assert US jurisdiction over coastal waters, that could endanger all 19GW of approved offshore wind capacity.

Originally focused on offshore oil & gas, OCSLA was amended in 2005 to include renewables such as offshore wind and ocean energy.

The amendment issued 12 criteria that must be met to permit an offshore renewable project, including “safety”; “protection of the environment”; and “prevention of interference with reasonable uses”, and others.

In what Interior secretary Doug Burgum called an “egregious misinterpretation”, the Biden administration held these criteria as goals to be balanced.

This, “rather than ensuring that all factors, including protection of the environment, marine mammals, commercial fishing, and other existing ocean uses, are fully met,” Burgum added.

The Biden interpretation has survived legal challenges as a pragmatic solution to enable offshore wind development.

Providing for “safety, for example, cannot be read to prohibit project approval simply because one could imagine the project being involved in an accident,” the US First Circuit Court of Appeals ruled in upholding a federal court verdict denying challenges to US flagship Vineyard Wind’s approval.

Vineyard’s permit challenge was from a consortium of fishing businesses represented by conservative think-tank Texas Public Policy Foundation (TPPF).

Spearheaded by Rhode Island squid processor Seafreeze Shoreside, TPPF's suit challenging Vineyard’s approval on several grounds, including OCSLA violations, has failed in both federal and appellate courts and was declined to be heard by the Supreme Court.

Now, however, this stricter interpretation is the law of the land.

TTPF’s petition and DoI’s order both came out on 29 July, which TPPF claimed was simple coincidence.

“That was always our interpretation in the litigation, and that now seems to be Interior's interpretation, and we applaud that interpretation,” Hadzi-Antich said.

Sector-wide consequences

“President Trump’s requested review of offshore wind projects gives the Secretary [Burgum] a golden opportunity to correct the previous administration’s missteps when it came to approving offshore wind projects,” said TPPF attorney Eric Heigis.

As representative of the Seafreeze Shoreside consortium, Hadzi-Antich stressed they were focusing on Vineyard alone.

Burgum's directive orders DoI's Solicitor to conduct a review of any pending litigation against solar and wind projects to “identify cases where remand of any such approvals to the Department would be appropriate.”

Offshore wind projects “that have already been approved are kind of in a state of limbo,” said Hadzi-Antich. “All of the leases, including the COPs that have been approved, are going to be reevaluated under this new order.”

Could any offshore wind COP meet this new standard of fulfilling all 12 OCSLA requirements to the satisfaction of Trump’s DoI?

“Is there a COP that conceivably could, I think absolutely there is,” said Hadzi-Antich. “There's no question about it.”

Just not Vineyard, he added.