Orsted's Revolution Wind attacks 'factually incorrect' Trump Administration claims

Orsted’s Revolution Wind has attacked “factually incorrect” claims made by the Trump Administration to justify its stop work order against the multi-billion dollar project, including how fibre-optic technology it uses could pose a risk to national security.

Revolution Wind – jointly owned by Denmark’s Orsted and BlackRock’s Skyborn Renewables – made the arguments in a filing yesterday in its legal claim against the Trump Administration seeking to have the order overturned.

The Department of the Interior’s (DoI) Bureau of Ocean Energy Management (BOEM) issued the stop work order against the project last month, citing vague national security concerns.

This is despite the fact the 704MW project, due to help power the states of Connecticut and Rhode Island, was already 80% built. US President Donald Trump has waged a war on wind since returning to office and there is no doubt in the industry what the true motivations behind the order are.

Revolution Wind is seeking a preliminary injunction to have the order lifted while its lawsuit in the US District Court for the District of Columbia plays out. The Trump Administration has pushed back against this, arguing that an injunction is not justified as the project does not face “irreparable harm” through the order.

But in a filing yesterday, Revolution Wind said the order “throws the construction schedule into chaos, imperils existing contracts, [and] imposes costs of over $2m per day.”

It also threatens Revolution Wind’s “ultimate viability as a business.”

The order is “illegal,” it said, reflecting a “shockingly expansive theory of agency power to undo prior regulatory approvals, flout due process, and impose massive unjustified costs on industry – all freed from any meaningful legal constraint whatsoever.”

The government “asserts sweeping ‘inherent authority’ to suspend or cancel previously-approved projects,” it said.

“The government makes the novel claim that these duly enacted statutory and regulatory procedures are entirely optional, and that due process is irrelevant because the Stop Work Order only ‘temporarily’ (albeit indefinitely) suspends the activities on the Project,” it said. “Those arguments are baseless.”

The stop work order rests on “vague ‘concerns’ about national security and interference with other reasonable uses of the seas,” with the government now belatedly offering a “handful of post-hoc rationalisations for the order untethered to any legal requirement.”

“The equities strongly favor a stay and injunction. Revolution Wind is suffering enterprise-level financial harms, in addition to reputational harm and irreparable disruptions to its construction schedule.”

“The real question here is whether Interior has authority to summarily suspend all activities on a previously-approved project, mid-construction, with no advance notice, no meaningful explanation, no consideration of the lessee’s reliance interests, and no due process, thereby increasing risks to the reliability of the regional energy grid in New England, and imposing enterprise-level risks to the company and causing the loss of numerous jobs,” said Revolution Wind.

“The answer is no.”

‘Factually incorrect assertions’

Revolution Wind took aim at a declaration submitted to the court by the DoI’s acting assistant secretary Adam Suess “belatedly asserts – for the first time – purported failures that were not mentioned in the Stop Work Order or identified to Revolution Wind until they were newly advanced in this litigation, and each of which is factually incorrect.”

While Revolution Wind did not use that word, the effect of its argument was very much the same.

Suess had alleged Revolution Wind had not satisfied National Security Condition 4.3 required by the Department of the Navy.

The purpose of that consultation, said Revolution Wind, to ensure that distributed fibre-optic sensing technology is “not used to detect sensitive data” from Department of Defence activities, or to “conduct any other type of surveillance of US government operations, or to otherwise pose a threat to national security.”

But Revolution Wind has complied with that condition, it said, sending the Navy “over 300 pages of specifications for its fiber-optic sensing technology, demonstrating that the Revolution Wind export cable uses Distributed Temperature Sensing systems, which only monitor the internal temperature of the cable itself, but cannot be used to detect nearby vessel activities.”

Other claims by Suess included that the BOEM “has not yet sufficiently addressed the project’s impacts on Atlantic cod spawning areas and other sensitive habitats,” an assertion that Revolution Wind said cited two- and three-year-old letters sent before the project was approved.

Given work on the project was already largely complete when the stop work order was issued, Revolution Wind said the “majority of activities that could potentially result in impacts to Atlantic cod spawning habitat were complete”.

“In sum, Suess’s declaration presents an incomplete picture of key compliance facts at best, and is misleading at worst.”

Revolution Wind has already spent or committed over $5bn in connection with the Project and, if it is cancelled, will face more than $1bn in breakaway costs, it said.

Revolution Wind also argues the order violates its right to due process, which it says is a Fifth Amendment violation of the US Constitution.