The attorneys general of 17 green states have jointly sued the President and the heads of a dozen federal agencies. Under the President’s day one executive order (EO), these agencies stopped approving pretty much anything to do with wind power development. The States want the Court to tell these Agencies to stop stopping.

The basic issue is simple, but the possible outcomes are anything but. I think the States have not properly considered where this action might lead. In fact they have probably asked the Court for the wrong thing.

The coalition includes Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Washington, and Washington, D.C.

The State’s Complaint filed with the Court is 101 pages long, so I am not going to get into that. This is just a high level overview. The full Complaint is here.

There is however one thing the States specifically say that is worth noting, namely that this EO and the Agency actions implementing it are “an existential threat to the wind industry.” Let’s hope so.

By way of background, the Court is doing “judicial review” under the Administrative Procedures Act (APA). The APA governs how federal agencies make decisions. In particular, they have to have good reasons.

Generally speaking, EO’s are not subject to judicial review because they are internal federal communications which in principle have no impact outside the government. But if agencies take actions to comply with an EO, those actions are governed by the APA. This is why the States are suing all these agencies; it is their actions that are in question, not the EO.

The States claim the Agencies are violating the APA because they give no reasons for their actions except the EO. Of course, the EO gives the reason, which is that there have been numerous allegations of deficiencies in the Agency actions during the Biden Administration. In fact, the EO just calls for a temporary stoppage so the past practices can be investigated.

The States claim this vague reference to unspecified deficiencies is not good enough to satisfy the APA. The Court may well agree, but then it gets very interesting. Here I think the States have made a mistake.

The States specifically ask the Court to find that the Agencies are violating the APA and then to tell the Agencies not to obey the EO. That is all they ask for.

I doubt a Court can tell an Agency not to obey a lawful EO. What they can do in this case is tell the Agencies that if they want to obey the EO they must comply with the APA when they do it.

So let the Agencies do that. It would simply require that they each carry out their own investigation under their own authorities, which they can certainly do, jumping through all the APA hoops along the way.

They can certainly suspend all their approvals, pending these investigations, because there is no telling where they might lead. Suspending approval pending investigation is fundamental law.

It could all take a very long time with very interesting results, nothing like what the States are hoping for. In particular I would love to see each Agency take public comments on past deficiencies as there have been untold thousands of wind development complaints filed during the Biden years, all ignored. CFACT has filed a number of these.

This may well be a case of the old adage “Be careful what you wish for.” Things could be worse for wind and the wind-loving green states than they already are.

Stay tuned to CFACT as this legal drama plays out.