New court ruling blocks many of the government's anti-renewable policies - Ars Technica

Overview

New court ruling blocks many of the government’s anti-renewable policies

Added layers of review singling out renewable energy have little legal basis.

Details

On Tuesday, the US District Court for the District of Massachusetts issued a preliminary injunction blocking the US government from applying a range of restrictions on renewable power development, at least for the parties in the suit. The ruling expands on another that was issued late last year, applying similar logic to a broader set of federal restrictions and an expanded group of renewable energy developers.

While the ruling is good news for companies looking to develop non-polluting energy sources, it leaves intact one of the only attempts the government has made to rationalize its animosity toward renewable power.

In December, a different judge in the same court ruled that the federal government’s decision to withdraw all areas of the continental shelf from potential offshore wind development violated the Administrative Procedures Act. The problem, the court determined, was that the rules were arbitrary and capricious; the only justification the government offered was that they implemented a Trump executive order.

This case differs in several key ways. First, due to recent Supreme Court precedent, restraining orders are only granted to the organizations involved in the suit. So the December decision applied to a group of offshore wind developers and coastal states. In this case, the organizations involved are trade groups that represent renewable energy developers more broadly, including both wind and solar developers, which greatly expands the types of projects the ruling applies to.

In addition, the groups involved in the suit challenged a wider variety of federal rules, including those issued by the Department of the Interior, the Army Corps of Engineers, and the US Fish and Wildlife Service. The rules imposed multiple roadblocks, including extra layers of review for renewable energy projects, unusual evaluation standards, and restrictions that blocked renewable energy developers from accessing certain government resources.

For most of these issues, the logic of the new ruling, issued by Judge Denise J. Casper, echoed that of the December ruling. The groups that sued are obviously facing harm from lost revenue and, in some cases, they are paying fees related to the land they’ve reserved for their projects. And the processes put in place by the government represent decisions that are subject to the Administrative Procedures Act, which bars such decisions from being “arbitrary and capricious.”

In general, the government offered few justifications for these policy changes. Judge Casper noted that at the same time the government was adding additional steps to the approval of renewable energy, it was declaring an energy emergency: “The DOI Review Procedures Memo appears to conflict with Executive Order No. 14154, which is aimed at removing impediments to energy development.”

“The DOI Review Procedures Memo lacks any indication of how these referenced documents either explain or justify its review procedures for wind-and-solar-energy agency action,” she went on to write. “Nor does it provide any further explanation on the adoption of this review process.”

As such, the judge determined that the groups bringing the suit were likely to win on the merits for most of the issues and therefore earned an injunction blocking these policies from applying to them.

Two rules are exceptions, one from the Army Corps of Engineers and the other from the Department of the Interior. In these cases, the government tried to offer a justification beyond “this is what Trump wants.” The government argued that renewable energy projects generally require more land than comparable fossil and nuclear facilities. You need to devote a lot more land to solar panels to get the same amount of power as you would from a natural gas plant with the same output.

Under the newly adopted policies, the Corps of Engineers must weigh the energy produced per acre for any projects under its oversight against the potential impact of alternative uses of the land. The Department of the Interior was ordered to make a similar consideration.

For the purposes of a temporary injunction, that turned out to be enough. Given this justification, Judge Casper said she could not conclude that the suing organizations were likely to win on their claims that the policy was arbitrary and capricious. That determination would have to await a full trial.

But it won’t, because those rules turned out to be illegal for other reasons.

Casper’s ruling notes that the laws governing the use of public lands require agencies to weigh multiple factors, balancing the benefits of different uses versus preservation. The rules instituted at Interior and the Corps of Engineers made a simple energy-density calculation the sole determinant of whether a project could proceed, sidestepping the process set forth in the relevant laws. As such, those policies also merit an injunction.

At least for the parties involved in the suit, none of the hurdles the Trump administration placed on renewable energy will apply. And the groups involved in the suit included many renewable energy developers*. That said, involved agencies could still create informal obstacles without violating the injunction, such as quietly slowing the pace of project approvals. The government can also potentially appeal this injunction.

So while the ruling is good news, it’s not a guarantee that the growth of renewables will continue unhindered over the next several years.

• The full list of plaintiffs: Clean Grid Alliance, Alliance For Clean Energy New York, Renew Northeast, Mid-Atlantic Renewable Energy Coalition Action, Renewable Northwest, Carolinas Clean Energy Business Association, Southern Renewable Energy Association, Interwest Energy Alliance.

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Key Takeaways

• New court ruling blocks many of the government’s anti-renewable policies

• Added layers of review singling out renewable energy have little legal basis

• On Tuesday, the US District Court for the District of Massachusetts issued a preliminary injunction blocking the US government from applying a range of restrictions on renewable power development, at least for the parties in the suit

• While the ruling is good news for companies looking to develop non-polluting energy sources, it leaves intact one of the only attempts the government has made to rationalize its animosity toward renewable power

• In December, a different judge in the same court ruled that the federal government’s decision to withdraw all areas of the continental shelf from potential offshore wind development violated the Administrative Procedures Act