Challenge to Maryland Offshore Wind Project Stokes Concerns Among Legal Scholars

Legal experts see a new Trump administration move to block an offshore wind project alongside Maryland’s Ocean City as a targeted strike against clean-energy infrastructure amid rising electricity demand, with some going so far as to call the action illegal.

On Friday the administration asked a federal judge to void US Wind’s permit and send it back to the Bureau of Ocean Energy Management for another review. The U.S. Department of Justice argued that the permit was granted without fully satisfying statutory requirements and the approval process did not address potential impacts on other offshore uses, such as fishing. 

In a written statement, Nancy Sopko, vice president of external affairs for US Wind, said the company was “confident that all of our project’s permits were validly issued. We’re very committed to delivering this important energy project to the region. The state needs all the new sources of electricity we can build in order to keep prices affordable for homes and businesses.”

The 2-gigawatt US Wind project is central to Maryland’s target of generating 100 percent of its energy from emissions-free renewable sources by 2035. State leaders believe its development is also critical to maintaining energy affordability. 

“Maryland is committed to wind because we know that building more generation to meet demand, bringing in investment, and creating good paying jobs is not political — it’s progress for Marylanders,” said David Turner, communications director for Gov. Wes Moore.

In the same emailed statement, he added: “The President’s actions will directly lead to utility-rate hikes by taking off [the] most promising ways for Maryland to meet its looming energy generation challenges.” Turner said Friday’s filing showed that the administration prioritizes “the President’s whims over the good of the country.” President Donald Trump has repeatedly said he dislikes wind energy.

Responding to questions from Inside Climate News, a spokesperson for the Department of Justice wrote, “We don’t have a comment.” The Department of the Interior and the Bureau of Ocean Energy Management (BOEM), which oversee offshore wind development and permitting, did not respond to multiple requests to explain the rationale behind the reversal. 

Representatives for Ocean City and Worcester County, Maryland, did not immediately respond to requests for comment. 

Trump has taken multiple actions to benefit fossil fuels and harm renewable energy since his second term began, but no power source has felt the sting as much as offshore wind. In a Jan. 20 memorandum, Trump halted all new offshore wind leasing in federal waters and froze permits for new and pending projects, citing national security and energy reliability issues, setting the stage for further crackdowns.

In recent months, federal agencies have aggressively targeted offshore wind projects with stop-work orders and expressed intent to rescind permits that were issued after lengthy review processes.

On Aug. 22, BOEM issued a stop-work order for Ørsted’s Revolution Wind project, located off the New England coast, reversing earlier federal approval. The order referenced “protection of national security interests” as the pretext for the agency action and was signed by the bureau’s acting director, Matt Giacona, previously a lobbyist for fossil fuel companies.

The action echoed a similar stop-work order BOEM had issued in April, pausing construction on New York’s Empire Wind 1 project, citing permitting concerns and national security issues. The order was lifted mid-May, following negotiations with New York Gov. Kathy Hochul over gas pipelines, and construction has since resumed.

(Interior Secretary Doug Burgum said last week that the administration is “in discussions” with the governors of Rhode Island and Connecticut, and project developers, about possibly allowing Revolution Wind to resume.) 

On Aug. 22, the federal government signaled it intended to go after US Wind’s Construction and Operations Plan for the Maryland offshore project, just as construction was to begin, and formally did so on Sept. 12. 

US Wind’s permit previously survived legal challenges during the Biden administration from Ocean City and local groups, who argued the project threatened fisheries, tourism and the environment. At that time, Interior and BOEM lawyers backed US Wind and defended their decision to approve the construction plan as legally and procedurally sound.

But in July, a federal judge denied US Wind’s motion to dismiss a case brought by the mayor and council of Ocean City and dozens of other co-plaintiffs that questioned the legality of the project. In their filing, the plaintiffs alleged that the Interior Department violated environmental laws when it granted the permit and said the project itself would threaten the region’s tourism and fishing economies.

Federal lawyers have now switched positions and joined Ocean City officials, arguing that the Biden administration downplayed the project’s potential impacts on search-and-rescue missions and commercial fishing. In their Sept. 12 filing, the administration formally requested the court vacate the construction plan, a move experts say could stall the project indefinitely.

Michael Gerrard, a climate law professor and director of the Sabin Center for Climate Change Law at Columbia Law School, said the legal campaign against Maryland’s US Wind project was fueled by an administration “scraping the bottom of the legal barrel in looking for rationales to stop these projects.” 

He sees the presidential directive as driving these reversals. “Clearly, the president hates offshore wind, and the administration is trying to figure out how to achieve his personal objectives here,” he said, noting that “all of the legal bases we’ve seen are terribly weak.”

Gerrard said the reversal is part of a broader shift beyond standard litigation tactics that is leading to a breakdown of regulatory reliability. 

“It puts what seemed to have been a solid project in a highly uncertain mode,” he said. 

Further complicating matters is the U.S. Environmental Protection Agency’s challenge of the project’s state air permit. On July 7, the agency warned the Maryland Department of the Environment (MDE) that the permit was procedurally flawed for citing an incorrect appeals process and asked the agency to correct it. But in a July 17 response, MDE rejected the claim, asserting it had followed both state and federal law.

Andrew Mergen, a visiting assistant clinical professor at Harvard Law School and a former Justice Department attorney, said he’s concerned about what he called a “short circuit” of the Administrative Procedure Act, a federal law that sets out the rules for granting permits and ensuring regulations are transparent, fair and allow public participation. 

“Agencies should own that process as a matter of good government,” he said. He believes the administration is using the courts to bypass a transparent rule-making process. “This represents a sort of strategy on the part of the administration that’s like, ‘To hell with the consequences.’ That doesn’t seem like a good reason.”

Mergen acknowledged there was precedent for tensions over permitting, especially in the context of fossil fuel projects. But the scale and audaciousness of the offshore wind reversals, he said, are “really aggressive in this way, and sort of in your face.”

He added that the EPA’s challenge to the project’s air permit was not improper under cooperative federalism, where state and federal agencies have overlapping responsibilities. “What’s improper about this is whether or not this is a pretext to stop the wind,” he said.

Richard J. Pierce Jr., a professor at George Washington University Law School, said in an emailed comment that while the move may raise serious concerns, “it may be legal.” He added that lower courts have shown increased reluctance to block controversial presidential actions this year, in part because “the Supreme Court often reverses them and admonishes the judges.”

The growing legal uncertainty, exacerbated by procedural maneuvers and policy rollbacks, is already rattling investors and industry stakeholders.

“Revoking a permit on an approved project after years of thorough agency review will raise electricity prices for families, jeopardize private investment, delay economic growth, and weaken our power grid,” Liz Burdock, CEO of the Oceantic Network, the largest industry group representing offshore wind, said in a statement. 

Jon Gordon, policy director for the trade group Advanced Energy United, described the move as a coordinated legal and policy strategy to derail renewable energy. “There’s an attack on the offshore permits, and at the same time, there’s also an attack going on targeting the tax credits for offshore wind that Biden put in place in 2022,” he said.

Gordon emphasized that the Inflation Reduction Act’s tax incentives were foundational to offshore wind economics. Now, under the One Big Beautiful Bill Act, those credits face new hurdles. “Investment in offshore wind is frozen at this moment,” he said. The law compressed eligibility timelines and introduced new restrictions. Projects must begin construction by July 4, 2026, and be operational by the end of 2027 to qualify.

“Timing is really critical to move quickly, and that’s why these court delays, I think, are almost designed to make it impossible to take advantage of those tax credits,” Gordon said.

In a July 7 executive order, Trump expanded supply chain scrutiny on clean energy, citing strategic risks, further hobbling investor confidence in offshore wind. Gordon warned of direct consumer impacts if these projects don’t proceed, given that spiraling demand from data centers is already showing up in customer bills. 

“It couldn’t be worse for consumers,” he said. “If these projects don’t get built, it can have a direct impact on consumer prices.”

Kate Sinding Daly, senior vice president for law and policy at the Conservation Law Foundation, said the administration’s effort to get the courts to vacate a permit was deeply troubling. “Vacatur would appear to sidestep core procedural protections,” she said, and called it an attempt to avoid having to provide a “reasoned analysis” for a policy reversal.

“This is especially troubling where the permitted projects have relied on the permits in undertaking project planning and construction at significant expense,” she said. Daly emphasized that wind projects followed a multi-year, and in some cases decade-long, process and that a federal U-turn without justification “creates a situation where no business has the certainty it requires.”

Legal experts say the stakes are high for project developers as well as for the states whose climate mandates depend on offshore wind infrastructure. “It would not surprise me at all to see a lawsuit filed by the developer and/or the state,” Gerrard said.