Read United States District Court Judge Patti B. Saris' December 8, 2025 order overturning DJT's Wind Order:
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
STATE OF NEW YORK, et al., )
Plaintiffs, )
and )
ALLIANCE FOR CLEAN ENERGY NEW )
YORK, )
) Civil Action
Plaintiff-Intervenor, ) No. 25-cv-11221-PBS
v. )
DONALD J. TRUMP, in his official )
capacity as President of the )
United States, et al., )
)
)
)
)
)
)
)
Defendants. )
______________________________ )
MEMORANDUM AND ORDER
December 8, 2025
Saris, J.
INTRODUCTION
On January 20, 2025, President Trump issued an executive
memorandum titled “Temporary Withdrawal of All Areas on the Outer
Continental Shelf From Offshore Wind Leasing and Review of the
Federal Government’s Leasing and Permitting Practices for Wind
Projects.” 90 Fed. Reg. 8363 (Jan. 20, 2025) (the “Wind Memo”).
The Wind Memo directed federal agencies to suspend issuing all new
permits, leases, and other authorizations needed to develop and
operate wind energy projects, both onshore and offshore, pending
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a wide-ranging assessment of federal wind leasing and permitting
practices. Pursuant to that directive, several federal agencies1
(the “Agency Defendants”) ordered an immediate pause in the
issuance of all wind energy authorizations (the “Wind Order”).
Seventeen states2 and the District of Columbia (the “State
Plaintiffs”), and Alliance for Clean Energy New York (“ACE NY,”
and together with the State Plaintiffs, “Plaintiffs”), bring this
suit under the Administrative Procedure Act (“APA”), 5 U.S.C. § 551
et seq., challenging the Wind Order. Now before the Court are the
parties’ cross-motions for summary judgment.3
1 The agencies remaining in this suit are the Department of the
Interior (and three of its subagencies: the Bureau of Ocean Energy
Management, the Bureau of Land Management, and the U.S. Fish and
Wildlife Service); the Department of Commerce (and two of its
subagencies: the National Marine Fisheries Service and the
National Oceanic and Atmospheric Administration); the
Environmental Protection Agency; and the U.S. Army Corps of
Engineers. Three other agencies were also originally named as
defendants but were subsequently dismissed: the Department of
Agriculture, the Department of Energy, and the Department of the
Treasury. See Massachusetts v. Trump, 790 F. Supp. 3d 8, 25 (D.
Mass. 2025). Several public officials were also named as
defendants. For ease of reference, the Court refers to the
defendants collectively as the “Agency Defendants.”
2 Those states are Arizona, California, Colorado, Connecticut,
Delaware, Illinois, Maine, Maryland, Massachusetts, Michigan,
Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island,
and Washington.
3 The Court has also reviewed and is thankful for the submissions
of various amici: Save Long Beach Island, Inc. (Dkt. 111); a group
of local, regional, and national environmental nonprofits (Dkt.
220); a California coalition consisting of local government
entities, environmental nonprofits, a labor union, an industry
trade group, and a public official (Dkt. 224); and a group of four
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After review of the parties’ submissions and a hearing, the
Court concludes that the Wind Order constitutes a final agency
action that is arbitrary and capricious and contrary to law.
Accordingly, the Court ALLOWS Plaintiffs’ motions (Dkts. 172,
175), DENIES the Agency Defendants’ motion (Dkt. 179), and declares
unlawful and VACATES the Wind Order.
BACKGROUND
I. Factual Background
The following facts are not in dispute.
The Wind Memo, which was published in the Federal Register,
contains two sections. The first section, which is not at issue in
this litigation, invokes the President’s authority under section
12(a) of the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C.
§ 1341(a), to “withdraw from disposition for wind energy leasing
all areas within the O[uter] Continental Shelf,” thereby
“temporarily prevent[ing] consideration of any area in the [Outer
Continental Shelf] for any new or renewed wind energy leasing.”
Temporary Withdrawal of All Areas, 90 Fed. Reg. at 8363.4 The
second section, as relevant here, provides as follows:
coalitions that provide training programs for workers in the
offshore wind energy industry (Dkt. 226).
4 The first section of the Wind Memo also instructs the Secretary
of the Interior to “conduct a comprehensive review of the
ecological, economic, and environmental necessity of terminating
or amending any existing wind energy leases” and to “identify[]
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In light of various alleged legal deficiencies
underlying the Federal Government’s leasing and
permitting of onshore and offshore wind projects, the
consequences of which may lead to grave harm -- including
negative impacts on navigational safety interests,
transportation interests, national security interests,
commercial interests, and marine mammals -- and in light
of potential inadequacies in various environmental
reviews required by the National Environmental Policy
Act to lease or permit wind projects, the Secretary of
the Interior, the Secretary of Agriculture, the
Secretary of Energy, the Administrator of the
Environmental Protection Agency, and the heads of all
other relevant agencies, shall not issue new or renewed
approvals, rights of way, permits, leases, or loans for
onshore or offshore wind projects pending the completion
of a comprehensive assessment and review of Federal wind
leasing and permitting practices. The Secretary of the
Interior shall lead that assessment and review in
consultation with the Secretary of the Treasury, the
Secretary of Agriculture, the Secretary of Commerce,
through the National Oceanic and Atmospheric
Administration, the Secretary of Energy, and the
Administrator of the Environmental Protection Agency.
The assessment shall consider the environmental impact
of onshore and offshore wind projects upon wildlife,
including, but not limited to, birds and marine mammals.
The assessment shall also consider the economic costs
associated with the intermittent generation of
electricity and the effect of subsidies on the viability
of the wind industry.
Id. at 8363-64 (emphasis added).
5 In short, the Wind Memo directs
agencies to impose an indefinite moratorium on the “issu[ance]” of
all “new or renewed approvals, rights of way, permits, leases, or
any legal bases for [their] removal.” Temporary Withdrawal of All
Areas, 90 Fed. Reg. at 8363.
5 The second section of the Wind Memo also contains several
provisions not relevant to this litigation, including an order
that several agencies “assess the environmental impact and cost to
surrounding communities of defunct and idle windmills.” Id. at
8364.
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loans for onshore or offshore wind projects” until agencies
complete a “comprehensive assessment and review” (the
“Comprehensive Assessment”) of those projects’ impacts. Id. at
8364. The Wind Memo further provides that “[t]his memorandum shall
be implemented consistent with applicable law.” Id.
On the same day the Wind Memo was promulgated, the Acting
Secretary of the Interior issued a written order “temporarily
suspend[ing]” all “delegations of authority” within the Interior
Department “[t]o issue any onshore or offshore renewable energy
authorization, including but not limited to a lease, amendment to
a lease, right of way, amendment to a right of way, contract, or
any other agreement required to allow for renewable energy
development.” Dkt. 165-3 at 1. By its terms, the written order
would “remain in effect for 60 days,” id. at 2, but the Agency
Defendants acknowledge that, to this day, all relevant agencies
“have temporarily ceased issuing permits until the [Comprehensive]
Assessment . . . is complete, as instructed in the Wind Memo,”
Dkt. 180 at 13. The Court uses the term “Wind Order” to describe
the Agency Defendants’ decision to suspend issuing all
authorizations related to wind energy projects.
The Agency Defendants have represented that the Comprehensive
Assessment is “underway” but have provided no information about
its timeline or any anticipated end date. Id. at 12; see, e.g.,
Dkt. 123-3 ¶ 5 (stating that the Interior Department has held
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“meetings . . . to plan how to further the ongoing assessment” and
“has begun compiling and reviewing information . . . that is needed
to support” it); Dkt. 123-7 ¶ 8 (attesting that the National Marine
Fisheries Service has “identified staff” to assist with the
Comprehensive Assessment and has “engaged in preliminary
coordination to prepare to support the assessment”). These
representations are not part of the administrative record.
II. Procedural History
On May 5, 2025, the State Plaintiffs brought the instant suit.
As relevant here, the State Plaintiffs’ operative complaint claims
that the Wind Order is (1) arbitrary and capricious, in violation
of 5 U.S.C. § 706(2)(A); and (2) contrary to law and in excess of
statutory authority, in violation of 5 U.S.C. § 706(2)(A) and (C).
ACE NY -– a nonprofit association with various wind project
developers and supply chain operators as its members -- filed its
complaint in intervention on May 21, 2025. Like the State
Plaintiffs, ACE NY claims that the Wind Order is arbitrary and
capricious and contrary to law. ACE NY also claims that the Wind
Order is procedurally improper in violation of 5 U.S.C. § 706(2)(D)
because the Agency Defendants did not undergo notice and comment
before implementing it.
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On July 3, 2025, another judge of this Court (Judge Young)
denied the Agency Defendants’ motion to dismiss the above claims.6
See Massachusetts v. Trump, 790 F. Supp. 3d 8, 32 (D. Mass. 2025).
The parties subsequently filed cross-motions for summary judgment,
which are now before this Court.
DISCUSSION
I. Constitutional Standing
To establish constitutional standing, “Plaintiffs must show
(1) that they suffered an injury in fact that is concrete,
particularized, and actual or imminent; (2) that the injury was
likely caused by the defendant; and (3) that the injury would
likely be redressed by judicial relief.” Plazzi v. FedEx Ground
Package Sys., Inc., 52 F.4th 1, 4 (1st Cir. 2022) (cleaned up)
(quoting TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021)). “If
at least one plaintiff has standing, the suit may proceed.”
Biden v. Nebraska, 600 U.S. 477, 489 (2023); see also Comfort v.
Lynn Sch. Comm., 418 F.3d 1, 11 (1st Cir. 2005) (en banc) (“So
long as one plaintiff has standing to seek a particular form of
6 The motion to dismiss was originally filed as an opposition to
Plaintiffs’ motions for a preliminary injunction. The Court, with
the consent of the parties, collapsed Plaintiffs’ motions with a
trial on the merits pursuant to Federal Rule of Civil Procedure
65(a)(2) and construed the Agency Defendants’ opposition as a
motion to dismiss. See Massachusetts, 790 F. Supp. 3d at 15-16.
The Court then denied the motion as to Plaintiffs’ APA claims and
dismissed their other claims. See id. at 30-32. No preliminary
injunction was issued.
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global relief, the court need not address the standing of other
plaintiffs seeking the same relief.”), abrogated on other grounds
by, Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1,
551 U.S. 701 (2007).
Judge Young previously found that Plaintiffs had
constitutional standing at the motion to dismiss stage. See
Massachusetts, 790 F. Supp. 3d at 20-24. Plaintiffs must, however,
“support each element of standing ‘with the manner and degree of
evidence required at the successive stages of the litigation.’”
Murthy v. Missouri, 603 U.S. 43, 58 (2024) (quoting Lujan v. Defs.
of Wildlife, 504 U.S. 555, 561 (1992)). At the summary judgment
stage, a plaintiff “must ‘set forth’ by affidavit or other evidence
‘specific facts’” establishing standing. Lujan, 504 U.S. at 561
(quoting Fed. R. Civ. P. 56(e)). As explained below, the Court
concludes that the State Plaintiffs and ACE NY have each satisfied
this requirement and that the Agency Defendants’ arguments to the
contrary are unpersuasive.
A. State Plaintiffs
The State Plaintiffs have produced ample evidence
demonstrating that they face ongoing or imminent injuries due to
the Wind Order. First, project delays caused by the Wind Order
reduce or defer tax revenue and returns on the State Plaintiffs’
investments in wind energy developments. See Wyoming v. Oklahoma,
502 U.S. 437, 447 (1992) (holding that decreased tax revenues
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constitute injury in fact); Franchise Tax Bd. v. Alcan Aluminium
Ltd., 493 U.S. 331, 336 (1990) (same as to diminished return on
investment). For example, the Commonwealth of Massachusetts alone
invested millions of dollars into the wind industry in 2024; it is
a “rational economic assumption[]” that returns on those
investments are imperiled by an indefinite suspension of wind
permitting. Massachusetts v. U.S. Dep’t of Health & Hum. Servs.,
923 F.3d 209, 223 (1st Cir. 2019) (quoting Adams v. Watson, 10
F.3d 915, 923 (1st Cir. 1993)). Similarly, the State Plaintiffs
provide documentation that the Wind Order has resulted in delays
to a project planned by Atlantic Shores Offshore Wind that is
expected to provide nearly $2 billion in economic benefits to the
State of New Jersey. Those anticipated benefits are now jeopardized
or deferred.
The Wind Order has also disrupted the State Plaintiffs’ plans
to themselves derive energy from wind projects. For instance,
delays to the SouthCoast Wind project have postponed the delivery
of thousands of megawatts of wind energy to the Commonwealth of
Massachusetts. The Agency Defendants concede that those delays
stem at least in part from their “evaluat[ing] the applicability
of the Wind Memo” to the project. Dkt. 180 at 24. Schedule
disruptions resulting from the Wind Order have likewise compelled
the State of New York to cancel solicitations for a transmission
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project that would have connected New York City’s electricity grid
to offshore wind generators and produced long-term cost savings.
Further, the State Plaintiffs point out that absent the Wind
Order, the development of wind energy projects would lower energy
costs. See Belmont Mun. Light Dep’t v. Fed. Energy Regul. Comm’n,
38 F.4th 173, 185 (D.C. Cir. 2022) (holding that states suffer
injury from increased electricity rates due to interests “in
protecting their citizens and electric ratepayers”). The State
Plaintiffs also present evidence that the Wind Order impedes their
ability to reduce greenhouse gas emissions through renewable wind
energy generation, see Massachusetts v. EPA, 549 U.S. 497, 521
(2007) (holding that states suffer injury in fact from the “serious
and well recognized” “harms associated with climate change”), and
forces them to incur expenses to shift toward other energy sources
to meet renewable energy procurement and pollution-reduction
targets, see New Jersey v. EPA, 989 F.3d 1038, 1046 (D.C. Cir.
2021) (noting that “exacerbated administrative costs and
burdens . . . constitute a concrete and particularized injury”).
These continuing harms constitute injury in fact.
So, too, do the State Plaintiffs satisfy the requirements of
causation and redressability. See FDA v. All. for Hippocratic Med.,
602 U.S. 367, 380–81 (2024). The Wind Order caused the above
injuries, which would be redressed by its vacatur. And the Supreme
Court has held that a plaintiff has standing to assert that an
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agency “based its decision upon an improper legal ground” even if
the agency “might later, in the exercise of its lawful discretion,
reach the same result for a different reason.” Gutierrez v. Saenz,
606 U.S. 305, 320 (2025) (quoting FEC v. Akins, 524 U.S. 11, 25
(1998)). The State Plaintiffs have adequately demonstrated
Article III standing.
B. ACE NY
As an organization asserting standing on behalf of its
members, ACE NY must show that (1) “its members would otherwise
have standing to sue in their own right”; (2) “the interests it
seeks to protect are germane to the organization’s purpose”; and
(3) “neither the claim asserted nor the relief requested requires
the participation of individual members in the lawsuit.” Students
for Fair Admissions, Inc. v. President & Fellows of Harvard Coll.,
600 U.S. 181, 199 (2023). “The first two prongs of this test have
constitutional dimensions; the third prong is prudential.”
Housatonic River Initiative v. U.S. EPA, 75 F.4th 248, 265 (1st
Cir. 2023).
The Agency Defendants contend that ACE NY has failed to
specify any member with standing. In mounting this challenge, the
Agency Defendants are tilting at windmills. Contrary to their
assertion, ACE NY does, in fact, identify various such members.
See id. (noting that an association need only identify one member
with standing). Those members include entities that operate (or
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seek to operate) onshore and offshore wind energy projects in
thirty-two states, as well as entities in the wind energy supply
chain. And the injuries to those members from the Wind Order are
manifest. For example, declarations submitted by ACE NY indicate
that Atlantic Shores Offshore Wind –- a wind energy project
development company which is among ACE NY’s many members -- has
had multiple permits stalled or withdrawn, with the government
specifically citing the Wind Order as the rationale for withdrawing
at least one of them. In response, Atlantic Shores Offshore Wind
has “materially reduced its personnel, terminated contracts, and
canceled project investments.” Dkt. 146-1 ¶ 22. While development
progress is stalled for various of ACE NY’s wind developer members,
many of them remain “required to pay rental fees on their stagnant
leases,” leaving “billions of dollars in stranded investments.”
Id. ¶ 4. Meanwhile, ACE NY’s supply chain members “have lost and
will continue to lose work and contracts as individual projects’
development schedules are delayed.” Dkt. 178 ¶ 3; see id. ¶ 5
(citing 82.8% decrease in quarterly supply chain contracts from
2024 to first half of 2025); All. for Hippocratic Med., 602 U.S.
at 384-85 (noting that downstream economic injuries to suppliers
can form basis for standing where injuries result from “predictable
chain of events”).
To the extent that the Agency Defendants argue that ACE NY
fails to show that its members’ injuries were caused by (and can
12Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 13 of 47
be redressed by the vacatur of) the Wind Order due to uncertainty
over whether individual projects would have timely proceeded in
the absence of the permitting pause, that contention disregards
the economic costs that ACE NY’s members have already incurred in
response to project delays. And ACE NY’s members’ injuries are
“both traceable and redressable ‘even though the [Agency
Defendants] might reach the same result exercising [their]
discretionary powers lawfully.’” Massachusetts, 790 F. Supp. 3d at
21 (quoting Akins, 524 U.S. at 25). ACE NY has thus established
that it has members with standing to sue in their own right.
The Court also readily concludes that ACE NY has satisfied
the other two prerequisites for associational standing. ACE NY’s
“mission is to promote the use of clean electricity technologies
and energy efficiency . . ., increase energy diversity and
security, boost economic development, improve public health, and
reduce air pollution.” Dkt. 114 ¶ 12. “The ‘interests at stake’ in
this litigation” thus “are clearly ‘related to [ACE NY’s] core
purposes.’” Housatonic, 75 F.4th at 265 (quoting Me. People’s All.
& Nat. Res. Def. Council v. Mallinckrodt, Inc., 471 F.3d 277, 283
(1st Cir. 2006)). And the remedies sought by ACE NY -- i.e.,
declaratory relief and vacatur of the Wind Order -- are
“‘prospective relief’ [that] would ‘inure to the benefit of those
members of [ACE NY] actually injured,’” meaning that “individual
members’ participation is not necessary to either the claim[s]
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asserted or the relief requested.” Id. (first quoting Warth v.
Seldin, 422 U.S. 490, 515 (1975); and then quoting Animal Welfare
Inst. v. Martin, 623 F.3d 19, 25 (1st Cir. 2010)). ACE thus has
established associational standing.
II. Zone of Interests
Next, the Agency Defendants contend that Plaintiffs do not
fall within the zones of interests of the statutes under which
they sue. As the Supreme Court has stated, the zone-of-interests
analysis “requires [a court] to determine, using traditional tools
of statutory interpretation, whether a legislatively conferred
cause of action encompasses a particular plaintiff’s claim.”
Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S.
118, 127 (2014). In other words, the inquiry turns on whether a
plaintiff has a cause of action under a statute. See id. at 128.
The APA authorizes suit by any “person suffering legal wrong
because of agency action[] or adversely affected or aggrieved by
agency action within the meaning of a relevant statute.” 5 U.S.C.
§ 702. This cause of action belongs to “anyone even ‘arguably
within the zone of interests to be protected or regulated by the
statute . . . in question.’” FDA v. R. J. Reynolds Vapor Co., 606
U.S. 226, 233 (2025) (quoting Ass’n of Data Processing Serv. Orgs.
v. Camp, 397 U.S. 150, 153 (1970)). “A plaintiff may sue under the
APA unless her interests are so marginally related to or
inconsistent with the purposes implicit in the statute that it
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cannot reasonably be assumed that Congress intended to permit the
suit. The inquiry is not especially demanding.” Id. (cleaned up).
Plaintiffs contend that the Wind Order is contrary to two
substantive provisions of the APA itself, see 5 U.S.C. §§ 555(b),
558(c), as well as a variety of statutes and regulations that
collectively govern the permitting process for wind energy
projects.7 Because Plaintiffs either seek permits under these
provisions (in the case of ACE NY’s wind developer members) or
directly benefit from the issuance of such permits (in the case of
the State Plaintiffs and ACE NY’s supply chain members),
Plaintiffs’ claims are well within the zones of interests of the
provisions at issue, which all set forth timelines and standards
for wind energy permitting. To take just one example, Plaintiffs
invoke OCSLA, which aims to enable the “expeditious and orderly
development” of the Outer Continental Shelf. 43 U.S.C. § 1332(3).
Plaintiffs’ claims, which likewise seek to expedite wind energy
development, are within the zone of interests of that statute. See
7 These laws include OCSLA, 43 U.S.C. § 1331 et seq.; the Clean
Water Act, 33 U.S.C. § 1251 et seq.; the Rivers and Harbors Act,
33 U.S.C. § 401 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et
seq.; the National Environmental Policy Act, 42 U.S.C. § 4321 et
seq.; the Endangered Species Act, 16 U.S.C. § 1531 et seq.; the
Bald and Golden Eagle Protection Act, 16 U.S.C. § 668 et seq.; the
Marine Mammal Protection Act, 16 U.S.C. § 1361 et seq.; the Federal
Land Policy and Management Act, 43 U.S.C. § 1701 et seq.; and the
Fixing America’s Surface Transportation Act, 42 U.S.C. § 4370m et
seq.; and the various regulations promulgated under these
statutes.
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Louisiana v. Biden, 622 F. Supp. 3d 267, 291-92 (W.D. La. 2022)
(holding that states’ APA claims alleging violation of OCSLA due
to oil and gas leasing moratorium satisfied zone-of-interests
test).
Seafreeze Shoreside, Inc. v. U.S. Department of the Interior,
cited by the Agency Defendants, is not to the contrary. 123 F.4th
1 (1st Cir. 2024), cert. denied, 145 S. Ct. 2680 (2025), and cert.
denied, 145 S. Ct. 2681 (2025). In Seafreeze, an organization
representing commercial fishermen sought to invoke “aesthetic and
recreational interests in marine mammals” to oppose the
development of an offshore wind facility under the Marine Mammal
Protection Act. Id. at 21. The First Circuit held that the
organization’s claim did not fall within the zone of interests of
that statute because the “protection of marine mammals . . . [wa]s
not germane to the [organization]’s purpose, which [wa]s to
represent the interests of commercial fisheries and related
organizations.” Id. Here, in contrast, the interests asserted by
Plaintiffs in obtaining wind energy permits are aligned with the
purposes of the statutory provisions that authorize and regulate
the issuance of those permits. Indeed, the Agency Defendants cite
no case in which a permit applicant was found to be outside the
zone of interests of a statutory provision regulating permit
issuance. Additionally, the First Circuit in Seafreeze found that
the plaintiffs’ claims were within the zone of interests of the
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National Environmental Policy Act (another statute invoked by
Plaintiffs here) because the discharge of fill material would have
had “adverse economic effects” on commercial fishing. Id. Here,
similarly, Plaintiffs have alleged various adverse economic
consequences resulting from the Wind Memo.
III. Merits
In the context of an APA challenge, “a motion for summary
judgment is simply a vehicle to tee up a case for judicial review.”
Bos. Redevelopment Auth. v. Nat’l Park Serv., 838 F.3d 42, 47 (1st
Cir. 2016). The Court therefore reviews the parties’ cross-motions
for summary judgment “not to determine whether a dispute of fact
remains,” but rather to adjudicate, based on the administrative
record, whether the Wind Order satisfies the APA’s requirements.
Id.
Under the APA, the Court must “hold unlawful and set aside
agency action, findings, and conclusions found to be,” inter alia,
“arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law,” 5 U.S.C. § 706(2)(A), or “in excess of
statutory jurisdiction, authority, or limitations, or short of
statutory right,” id. § 706(2)(C). Judicial review of agency action
under these standards is deferential and narrow. See Littlefield
v. U.S. Dep’t of the Interior, 85 F.4th 635, 643 (1st Cir. 2023).
The Court first addresses the issue of whether the Wind Order
is a final agency action subject to judicial review. Finding that
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it is, the Court then resolves, in turn, Plaintiffs’ arguments
that the Wind Order is arbitrary and capricious and contrary to
law.
A. Final Agency Action
Under the APA, plaintiffs may challenge an “agency action,”
5 U.S.C. § 706, which is defined to “include[] the whole or a part
of an agency rule, order, license, sanction, relief, or the
equivalent or denial thereof, or failure to act,” id. § 551(13);
see id. § 701(b)(2). An agency action is “subject to judicial
review” if it is “made reviewable by statute” or, as relevant here,
when it is a “final agency action.” Id. § 704. The Agency
Defendants contend that the Wind Order is not a challengeable final
agency action.
An agency action is considered “final” under the APA if two
conditions are satisfied: “First, the action must mark the
consummation of the agency’s decisionmaking process -- it must not
be of a merely tentative or interlocutory nature. And second, the
action must be one by which rights or obligations have been
determined, or from which legal consequences will flow.” U.S. Army
Corps of Eng’rs v. Hawkes Co., 578 U.S. 590, 597 (2016) (quoting
Bennett v. Spear, 520 U.S. 154, 177-78 (1997)). The Court addresses
each of these conditions in turn and concludes that each of them
is met.
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1. Consummation
The threshold question is whether a “temporary” pause can
qualify as a “consummation of the agency’s decisionmaking
process.” Id. (quoting Bennett, 520 U.S. at 178). The Court
determines that it can.
An agency action can satisfy the “consummation” prong
“notwithstanding the agency’s characterization of the [action] as
an interim” one. Nat. Res. Def. Council v. Wheeler, 955 F.3d 68,
78 (D.C. Cir. 2020). That is because
an interim agency resolution counts as final agency
action despite the potential for a different permanent
decision, as long as the interim decision is not itself
subject to further consideration by the agency. In that
event, the interim resolution is the final word from the
agency on what will happen up to the time of any
different permanent decision.
Id.; see, e.g., Clean Air Council v. Pruitt, 862 F.3d 1, 6 (D.C.
Cir. 2016) (per curiam) (noting that an “interim” modification of
the status quo can constitute final agency action); Salazar v.
King, 822 F.3d 61, 83-84 (2d Cir. 2016) (“The APA does not require
that the challenged agency action be the agency’s final word on
the matter for it to be ‘final’ for the purposes of judicial
review.”). Relatedly, “when agencies opt to make final
administrative determinations in [a] two-stage way,” the initial
stage of the process may be a final agency action if it “itself
[has] altered the legal status quo.” Glob. Tower Assets, LLC v.
Town of Rome, 810 F.3d 77, 84 (1st Cir. 2016).
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These principles have led various courts to conclude that an
agency-imposed suspension of certain activities constitutes final
agency action. See, e.g., Minard Run Oil Co. v. U.S. Forest Serv.,
670 F.3d 236, 247–49 (3d Cir. 2011) (holding that moratorium on
mineral drilling until completion of environmental impact
statement constituted final agency action); Louisiana, 622 F.
Supp. 3d at 291-93 (holding that indefinite “pause” on issuing new
oil and natural gas leases constituted final agency action); Texas
v. United States, 524 F. Supp. 3d 598, 642-43 (S.D. Tex. 2021)
(holding that “100-day pause on removals” constituted final agency
action); cf. Env’t Def. Fund, Inc. v. Gorsuch, 713 F.2d 802, 813
(D.C. Cir. 1983) (“[S]uspension of the permit process as to a class
of waste management facilities amounts to a suspension of the
effective date of regulation governing that class, and may be
reviewed . . . as the promulgation of a regulation.”).8 Even if a
moratorium may eventually be lifted, the agency action effecting
it “represents the consummation of the [agency]’s decisionmaking
process with respect to the moratorium” and therefore is subject
to APA challenge. Minard, 670 F.3d at 248 (emphasis added); see
Texas, 524 F. Supp. 3d at 642 (“The immediacy of the implementation
8 Various other courts have reached the same or similar conclusion.
See, e.g., Louisiana, 622 F. Supp. 3d at 291-92 (collecting cases);
Stenson Tamaddon, LLC v. U.S. IRS, 742 F. Supp. 3d 966, 988 (D.
Ariz. 2024).
20Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 21 of 47
of the . . . pause demonstrates [the agency]’s decision with regard
to the pause itself is final.” (emphasis added)).
This case law makes clear that the Wind Order marks the
consummation of the Agency Defendants’ decisionmaking process. It
is undisputed that the Wind Order “altered the legal status quo”
under which the relevant agencies previously processed
applications for leases, permits, and other authorizations
necessary for wind project development. Glob. Tower Assets, 810
F.3d at 84. And the Agency Defendants concede that the Wind Order
will remain in effect until, at the earliest, the Comprehensive
Assessment is complete. In other words, the Wind Order -- despite
being “characteriz[ed] . . . as an interim” undertaking –- “is the
final word from the [A]gency [Defendants] on what will happen up
to the time of any different permanent decision” resulting from
the Comprehensive Assessment. Wheeler, 955 F.3d at 78.
More than ten months after the Wind Order instituted a
“temporary” pause on the issuance of wind energy authorizations,
no end to the Comprehensive Assessment appears to be in sight. The
Agency Defendants neither included a timeline for that assessment
in the administrative record nor provided an anticipated end date
during the course of this litigation. The long-term nature of the
Wind Order reinforces the finding that it constitutes final agency
action.
21Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 22 of 47
2. Legal Consequences
Under the second prong of the finality test, an agency action
is final only if it is “one by which rights or obligations have
been determined[] or from which legal consequences will flow.”
Hawkes Co., 578 U.S. at 597 (quoting Bennett, 520 U.S. at 178).
Courts have regularly determined that this condition is satisfied
when an indefinite pause is imposed by an agency. See, e.g.,
Louisiana, 622 F. Supp. 3d at 291 (concluding that “[t]here [was]
no real question that [p]laintiff [s]tates ha[d] met the second
prong of the Bennett test” due to a suspension of oil and natural
gas lease issuance); Texas, 524 F. Supp. 3d at 643 (holding that
“legal consequences . . . undoubtedly flow[ed]” from an 100-day
pause on removals); Doe v. Trump, 288 F. Supp. 3d 1045, 1070 (W.D.
Wash. 2017) (“[A] ‘suspension’ or an indefinite delay . . . has
significant real-world impacts on Plaintiffs’ various
situations.”). A suspension on agency authorizations “prevent[s]
[p]laintiffs from moving forward” with their proposed activities,
such that they are “trapped without recourse due to the indefinite
postponement of agency action.” Connecticut v. U.S. Dep’t of the
Interior, 363 F. Supp. 3d 45, 60 (D.D.C. 2019) (quoting Soundboard
Ass’n v. FTC, 888 F.3d 1261, 1268 (D.C. Cir. 2018)).
The Wind Order “gives rise to ‘direct and appreciable legal
consequences’” and thus satisfies the second prong of the finality
test. Hawkes Co., 578 U.S. at 598 (quoting Bennett, 520 U.S. at
22Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 23 of 47
178). Until full processing of applications related to wind energy
projects resumes, no such project can move forward. Indeed, as was
previously held in this litigation, the Wind Order amounts to a
“de facto suspension of the law with respect to wind energy
development.” Massachusetts, 790 F. Supp. 3d at 27. For many of
the same reasons that Plaintiffs have standing, see supra Section
I, the legal consequences of the Wind Order are apparent.
The Court therefore concludes that the Wind Order constitutes
a final agency action. Having made this threshold determination,
the Court now turns to adjudicating whether the Wind Order complies
with the APA.
B. Arbitrary and Capricious
Plaintiffs contend that the Wind Order is arbitrary and
capricious in violation of the APA. See 5 U.S.C. § 706(2)(A)
(instructing courts to “hold unlawful and set aside agency action,
findings, and conclusions found to be . . . arbitrary, capricious,
[or] an abuse of discretion”). Plaintiffs highlight the sparsity
of the administrative record (which consists solely of the Wind
Memo and the Interior Department’s implementing order), arguing
that the Agency Defendants were obligated under the APA, and
failed, to analyze their options and explain the basis for the
Wind Order, notwithstanding that the Agency Defendants acted
pursuant to the Wind Memo.
23Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 24 of 47
1. Applicability of Arbitrary-and-Capricious Review
At the outset, the Court must address the difficult issue
raised by the Agency Defendants’ argument that arbitrary-and-
capricious review does not even apply because their action was
directed by the President. The Agency Defendants contend that
because they “merely followed” the Wind Memo “as the [Wind Memo]
itself commands,” the Wind Order did not constitute a “decision”
and therefore no reasoned explanation was required. Dkt. 209 at 6.
In effect, the Agency Defendants ask this Court to hold that an
agency is exempt from the requirements of § 706(2)(A) whenever it
acts pursuant to a presidential command.
Circuit precedent forecloses this argument. The First Circuit
has noted that an “agency action that carries out a presidential
directive is ordinarily subject to APA review.” Agatha v. Trump,
151 F.4th 9, 11 (1st Cir.), rev’d on other grounds, Trump v. Orr,
__ S. Ct. __ (2025) [2025 WL 3097824]; see also New York v. Trump,
133 F.4th 51, 70 n.17 (1st Cir. 2025) (noting that the APA’s
restrictions are properly applied to agencies’ “actions
under . . . [e]xecutive [o]rders”). At least two other circuits
have reached similar conclusions. See Nebraska v. Su, 121 F.4th 1,
15 (9th Cir. 2024) (“The Supreme Court has never excepted a final
rule from APA review because it carried out a presidential
directive.”); Chamber of Com. of the U.S. v. Reich, 74 F.3d 1322,
1327 (D.C. Cir. 1996) (“[T]hat the [agency]’s regulations are based
24Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 25 of 47
on the President’s Executive Order hardly seems to insulate them
from judicial review under the APA . . . .”).9
That does not end the matter, however, because a recent order
on the Supreme Court’s emergency docket addressed the
applicability of the APA to an agency decision pursuant to a
presidential directive. See Orr, __ S. Ct. __ [2025 WL 3097824].
Due to that order’s relevance to the Agency Defendants’ central
argument here, an in-depth discussion of the procedural history of
Orr is warranted.
The litigation culminating in the Supreme Court’s order in
Orr involved an “Executive Branch policy requiring all new
passports to display an individual’s biological sex at birth.” __
S. Ct. at __ [2025 WL 3097824, at *1]. On January 20, 2025,
President Trump signed an executive order directing the State
Department to require every passport to list its holder’s
biological sex assigned at birth. See Orr v. Trump, 778 F. Supp.
3d 394, 400 (D. Mass. 2025). In late January 2025, the State
Department implemented that executive order by “requir[ing] all
passports to reflect only applicants’ sex assigned at birth” and
9 Numerous district courts have held the same. See Kingdom v.
Trump, No. 25-cv-691, 2025 WL 1568238, at *10 (D.D.C. June 3, 2025)
(collecting cases); see also, e.g., Drs. for Am. v. Off. of Pers.
Mgmt., 793 F. Supp. 3d 112, 145 (D.D.C. 2025); Woonasquatucket
River Watershed Council v. U.S. Dep’t of Agric., 778 F. Supp. 3d
440, 471 (D.R.I. 2025), appeal filed, No. 25-1428 (1st Cir. May 1,
2025); Louisiana, 622 F. Supp. 3d at 294-95.
25Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 26 of 47
mandating that all passport holders report their sex as either
male or female. Id. A group of plaintiffs initiated several legal
challenges to this State Department policy. See id. As relevant
here, the plaintiffs claimed that the policy was arbitrary and
capricious under the APA because “the record indicate[d] that the
State Department considered virtually nothing aside from the
[e]xecutive [o]rder’s directive when it developed” the policy. Id.
at 424.
Another session of this Court agreed and issued a preliminary
injunction barring enforcement of the policy as to certain of the
plaintiffs. See id. at 423-25, 433. The court noted that the policy
“was adopted and announced mere days after” the executive order
was issued and that the State Department had failed to “make
factual findings,” “explain why the facts supporting [its] prior
passport policy no longer carr[ied] weight,” and “address reliance
interests affected by its reversal of the prior policy.” Id. at
423-24.
Importantly, in arriving at this conclusion, the district
court rejected two distinct arguments made by the government.
First, the court disagreed with the government’s position that the
passport policy was unreviewable under the APA, holding that the
“APA contains no exception for agency actions . . . that carry out
an executive order.” Id. at 419. Second, the government contended
that 22 U.S.C. § 211a -- which provides that the Secretary of State
26Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 27 of 47
may grant passports “under such rules as the President shall
designate and prescribe” -- was “reason enough” for the State
Department’s adoption of the policy pursuant to the President’s
executive order, such that further study and explanation of the
relevant issues was not required. Id. at 424. The court rejected
this argument as well. See id.
The government appealed the district court’s order and moved
for a stay pending appeal. The First Circuit denied the motion.
See Agatha, 151 F.4th at 13. In so doing, the First Circuit, like
the district court, addressed the government’s two distinct
arguments in turn. First, the First Circuit disagreed with the
government’s argument that the passport policy was “not subject to
review under the APA because it was ‘compelled by’ the President’s
[e]xecutive [o]rder.” Id. at 11. The First Circuit then rejected
the government’s argument that the passport policy was
“unreviewable” because § 211a “commits the action [concerning the
content of passports] to the President’s sole discretion.” Id.
Having failed to persuade the First Circuit, the government
turned to the Supreme Court. In its briefing in support of its
application for a stay pending appeal, the government emphasized
the atypicality of the situation given the existence of § 211a.
Because § 211a “itself requires the [State] Department to follow
the President’s ‘rules,’” the government argued, the State
“Department considered the only aspect relevant . . .: that
27Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 28 of 47
[§ 211a] required it to follow” the executive order. Application
for a Stay at 29-30, Orr, __ S. Ct. __ (No. 25A319) (quoting 22
U.S.C. § 211a). The government distinguished this situation from
the ordinary “case where the challenged agency action is the
exercise of discretion ‘delegated to an agency head but directed
by the President,’” highlighting that the litigation instead
presented “a case where the exercise of discretion is ‘committed
to . . . the President’ himself, and the challenged agency action
just ministerially carries out the President’s decision.” Id. at
27 (alteration in original) (quoting Elena Kagan, Presidential
Administration, 114 Harv. L. Rev. 2245, 2351 (2001)); see also
Reply in Support of Application for Stay at 11, Orr, __ S. Ct. __
(No. 25A319) (“This case thus starkly contrasts with cases
respondents cite where statutes vested an agency with the relevant
decisionmaking authority.” (citation omitted)). Given that
distinction, the government stressed, the fact pattern in Orr did
not “require the Court to hold that ‘agencies automatically meet
the APA’s procedural requirements when they implement the
President’s policy views.’” Reply in Support of Application for
Stay at 2-3, Orr, __ S. Ct. __ (No. 25A319) (quoting Respondents’
Opposition to Application for Stay at 24, Orr, __ S. Ct. __ (No.
25A319)).
On November 6, 2025, the Supreme Court granted the
government’s stay application. See Orr, __ S. Ct. at __ [2025 WL
28Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 29 of 47
3097824, at *1]. Only one sentence of the Supreme Court’s order is
relevant here:
Nor are respondents likely to prevail in arguing that
the State Department acted arbitrarily and capriciously
by declining to depart from Presidential rules that
Congress expressly required it to follow. See 22 U.S.C.
§ 211a.
Id. (emphasis added). The phrasing of this sentence, in conjunction
with the Supreme Court’s citation to § 211a, makes clear that the
Supreme Court is likely to accept the government’s second
argument -- i.e., that an agency need not provide a reasoned
explanation, other than pointing to an executive order, in the
specific scenario where a statute (such as § 211a) expressly
delegates discretion to the President himself and “require[s] [the
agency] to follow” directives pursuant to that delegation.
Application for a Stay at 30, Orr, __ S. Ct. __ (No. 25A319). The
Supreme Court’s order says nothing, however, about the
government’s first argument -- i.e., that all other agency actions
pursuant to executive orders are likewise exempted from the APA’s
requirement of reasoned explanation.
Indeed, interpreting Orr to have addressed the government’s
first argument would be inconsistent with Supreme Court precedent.
The Supreme Court has previously directed arbitrary-and-capricious
review of an agency action under the APA even where that agency
action was carried out pursuant to a presidential directive. See
Biden v. Texas, 597 U.S. 785, 793, 807-14 (2022) (holding that
29Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 30 of 47
agency memoranda issued pursuant to an executive order constituted
final agency action under the APA and directing the district court
to “consider . . . whether the [memoranda] comply with section 706
of the APA” (citing Motor Vehicle Mfrs. Ass’n of the U.S. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 46-57 (1983)). Because the
Supreme Court “does not normally overturn, or . . . dramatically
limit, earlier authority sub silentio,” Shalala v. Ill. Council on
Long Term Care, Inc., 529 U.S. 1, 18 (2000), the Supreme Court’s
order in Orr cannot reasonably be read to imply that all agency
actions stemming from presidential directives are exempted from
APA review.
Accordingly, mindful that the reasoning of orders on the
Supreme Court’s emergency docket serve as precedent for lower
courts, see Nat’l Insts. of Health v. Am. Pub. Health Ass’n, 145
S. Ct. 2658, 2660 (2025), this Court concludes that Orr did not
overrule First Circuit precedent dictating that “agency action
that carries out a presidential directive is ordinarily subject to
APA review.” Agatha, 151 F.4th at 11 (emphasis added); see New
York, 133 F.4th at 70 n.17. Rather, that precedent still applies
where no statute “expressly require[s] [the agency] to follow” a
presidential directive. Orr, __ S. Ct. at __ [2025 WL 3097824, at
*1].
Moreover, that method of applying APA review makes good sense.
Where, as the government noted in its briefing in Orr, a statute
30Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 31 of 47
“expressly vests ‘the President,’ not the agency, with exclusive
authority” to prescribe a rule, “[t]hat delegation puts the
President’s ‘authority . . . at its maximum.’” Reply in Support of
Application for Stay at 9, Orr, __ S. Ct. __ (No. 25A319) (second
alteration in original) (first quoting 22 U.S.C. § 211a; and then
quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635
(1952) (Jackson, J., concurring)). In such a scenario, requiring
an agency to assess all relevant factors and issue a reasoned
explanation before acting -- despite its discretion being
specifically circumscribed by Congress’s mandate that the agency
follow the President’s directive -- would contravene Congress’s
instructions and operate as an unauthorized (and pointless)
workaround of the Supreme Court’s holding that the President’s own
“actions are not subject to [the APA’s] requirements.” Franklin v.
Massachusetts, 505 U.S. 788, 801 (1992); cf. Bradford v. U.S. Dep’t
of Lab., 101 F.4th 707, 731 (10th Cir. 2024) (finding that an
agency action cannot “be[] an arbitrary and capricious exercise of
agency discretion [where] the agency ha[s] no discretion to act
otherwise”), cert. denied, 145 S. Ct. 1047 (2025). But where a
“challenge is to an action delegated to an agency head but directed
by the President,” rather than “to an action that Congress ha[s]
committed to the sole discretion of the President,” a “different
situation obtains: then, . . . the review provisions [of the APA]
usually applicable to that agency’s action should govern.” Kagan,
31Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 32 of 47
supra, at 2351.10 Insulating an agency action from arbitrary-and-
capricious review in such a circumstance would undermine the APA
and “shockingly allow Presidents to insulate any desired
rulemaking from judicial review with the single stroke of an
executive pen.” Su, 121 F.4th at 15.
10 The Court finds Justice Kagan’s prescient treatment of this
topic persuasive. In relevant part, her 2001 article states as
follows:
It is true that the Supreme Court held in Franklin v.
Massachusetts that the President is not an “agency” as
defined in the APA and his actions therefore are not
subject to the judicial review provisions of that
statute. This decision, however, arose from a challenge
to an action that Congress had committed to the sole
discretion of the President, separate from and
subsequent to agency involvement. When the challenge is
to an action delegated to an agency head but directed by
the President, a different situation obtains: then, the
President effectively has stepped into the shoes of an
agency head, and the review provisions usually
applicable to that agency’s action should govern.
Nothing in Franklin’s interpretation of the APA or in
its -- or any other case’s - - underlying discussion of
separation of powers issues is to the contrary. As
Strauss notes, ever since Marbury v. Madison, the Court
has posited a sphere of “superstrong” presidential
discretion over political matters, not amenable to
judicial control; but never has the Court indicated, nor
could it consistent with rule of law principles, that
all exercises of presidential authority fall within this
zone. And so long as the courts remain open to legal
challenges, the use of presidential directive authority
cannot too greatly displace the clear preferences of the
prior enacting (as opposed to the current overseeing)
Congress with respect to agency action.
Kagan, supra, at 2350-51 (footnotes omitted) (quoting Peter L.
Strauss, Presidential Rulemaking, 72 Chi.-Kent L. Rev. 965, 977
(1997)).
32Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 33 of 47
Here, the Agency Defendants concede that no statute expressly
requires them to follow rules prescribed by the President regarding
wind energy authorizations. The language of the Wind Memo itself
provides insight on this point: the first section of the Wind Memo,
which is not at issue in this litigation, specifically invokes
section 12(a) of OCSLA -- which vests discretion in the “President
of the United States” to “withdraw from disposition any of the
unleased lands of the [O]uter Continental Shelf,” 43 U.S.C.
§ 1341(a) –- to effect a withdrawal of such lands for wind energy
leasing.11 See Temporary Withdrawal of All Areas, 90 Fed. Reg. at
8363. The second section of the Wind Memo, in contrast, invokes no
statutory grant of authority to the President, instead merely
instructing certain agencies to implement a suspension of wind
energy authorizations “consistent with applicable law.” Id. at
8364; see id. at 8363-64. Indeed, Plaintiffs identify various
statutes governing the permitting of wind projects that
contemplate the prompt processing of permit applications by
agencies, potentially indicating that the President’s “power is at
its lowest ebb” in directing otherwise. Youngstown Sheet & Tube
Co., 343 U.S. at 637 (Jackson, J., concurring).
11 The Court notes that § 1341(a) is similar to § 211a in that both
statutes expressly vest discretion in the President to take a
specified action.
33Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 34 of 47
Because Congress has not “committed to the sole discretion of
the President” the ability to suspend wind energy authorizations,
the “usually applicable” arbitrary-and-capricious standard of the
APA governs the Court’s review. Kagan, supra, at 2351. And, as the
Court now will explain, the Agency Defendants have not satisfied
that standard.
2. Application to Wind Order
“The APA’s arbitrary-and-capricious standard requires that
agency action be reasonable and reasonably explained.” FCC v.
Prometheus Radio Project, 592 U.S. 414, 423 (2021). A court will
generally not disturb an agency action unless “the agency has
relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem,
offered an explanation for its decision that runs counter to the
evidence before the agency,” or provided reasoning “so implausible
that it could not be ascribed to a difference in view or the
product of agency expertise.” State Farm, 463 U.S. at 43. This
standard of review is “deferential”: the “court may not substitute
its policy judgment for that of the agency.” Prometheus Radio
Project, 592 U.S. at 423.
“A change in administration brought about by the people
casting their votes is a perfectly reasonable basis for an
executive agency’s reappraisal of the costs and benefits of its
programs and regulations.” State Farm, 463 U.S. at 59 (Rehnquist,
34Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 35 of 47
J., concurring). To change its “existing policies,” an agency need
only “provide a reasoned explanation for the change.” Encino
Motorcars, LLC v. Navarro, 579 U.S. 211, 221 (2016). That
obligation “ordinarily demand[s] that [the agency] display
awareness that it is changing position” but does not justify the
application of a “heightened standard” of review. FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 514-15 (2009). The agency
“need not demonstrate to a court’s satisfaction that the reasons
for the new policy are better than the reasons for the old one; it
suffices that the new policy is permissible . . ., that there are
good reasons for it, and that the agency believes it to be better.”
Id. at 515. When the agency’s new position “rests upon factual
findings that contradict those which underlay [the] prior”
position or when the agency’s prior position “has engendered
serious reliance interests,” however, the agency may be required
to provide a “more detailed justification.” Id.
Here, the administrative record consists of only two
documents: the Wind Memo and the Interior Department’s written
order suspending the issuance of renewable energy authorizations
pursuant to the Wind Memo. See Dkt. 165-2; Dkt. 165-3; Dkt. 165- 5;
Dkt. 165-7; Dkt. 165-9. The Agency Defendants have certified that
these two documents constitute the entirety of the “evidence
considered, directly or indirectly, by [the Agency] Defendants for
the alleged decision” to “temporarily cease issuing new approvals
35Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 36 of 47
and other authorizations” pursuant to the Wind Memo. Dkt. 165 at
2, 4; see Dkt. 165-1 ¶ 6; Dkt. 165-4 ¶ 3; Dkt. 165-6 ¶ 6; Dkt.
165-8 ¶ 5. Although the Interior Department’s written order stated
that it would expire in sixty days and purported only to bind
divisions of the Interior Department, all Agency Defendants
acknowledge that they will continue to carry out the Wind Order at
least until the completion of the Comprehensive Assessment. See,
e.g., Dkt. 180 at 13.
This scant administrative record makes clear, and the Agency
Defendants do not meaningfully dispute, that the Agency Defendants
have not “reasonably considered the relevant issues and reasonably
explained the[ir] decision” to implement the Wind Order.
Prometheus Radio Project, 592 U.S. at 423. Indeed, the Agency
Defendants candidly concede that the sole factor they considered
in deciding to stop issuing permits was the President’s direction
to do so.
Further, given that the Wind Order constitutes a change of
course from decades of agencies’ issuing (or denying) permits
related to wind energy projects, the Agency Defendants were
required, at minimum, to “provide a reasoned explanation for the
change” and to “display awareness that [they were] changing
position.” Encino Motorcars, 579 U.S. at 221 (quoting Fox
Television, 556 U.S. at 515). They failed to do so. Instead, they
implemented the Wind Order on Inauguration Day without elucidating
36Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 37 of 47
the “reasons for the new policy.” Fox Television, 556 U.S. at 515.
And even assuming, arguendo, that the Wind Memo itself could be
characterized as the Agency Defendants’ own explanation for their
manner of implementing it, the Wind Memo does not provide adequate
explanation: It merely includes a single sentence citing “various
alleged legal deficiencies underlying” wind permitting, “potential
inadequacies in various environmental reviews,” and the
possibility that these vaguely defined issues “may lead to grave
harm.” Temporary Withdrawal of All Areas, 90 Fed. Reg. at 8363
(emphases added). The Court is “unable to divine or fathom a
relationship between” this cursory sentence “and the immense scope
of the moratorium” on all wind energy authorizations. Hornbeck
Offshore Servs., L.L.C. v. Salazar, 696 F. Supp. 2d 627, 637 (E.D.
La. 2010). Whatever level of explanation is required when deviating
from longstanding agency practice, this is not it.
The Agency Defendants also failed to account for reliance
interests engendered by their previous policy of adjudicating wind
permit applications. For example, the State Plaintiffs point out
that various states “have designed their energy policies to rely
on [the] development of” wind energy projects, including by setting
procurement and pollution-reduction targets. Dkt. 173 at 32. The
Agency Defendants were obligated, at minimum, to “assess whether
there were reliance interests, determine whether they were
significant, and weigh any such interests against competing policy
37Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 38 of 47
concerns.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,
591 U.S. 1, 33 (2020). They did not do so, let alone provide the
“more detailed justification” required upon determining that
serious reliance interests exist. Fox Television, 556 U.S. at 515.
Accordingly, the Court finds that the Wind Order is arbitrary
and capricious. The Wind Order therefore must be set aside. See 5
U.S.C. § 706(2)(A).
C. Contrary to Law
Next, Plaintiffs claim that the Wind Order is “not in
accordance with law,” id., and “in excess of statutory . . .
authority,” id. § 706(2)(C). These two provisions of the APA
contain a “linguistic distinction without a practical difference”
in the context of an agency action that is allegedly contrary to
statutory requirements. Victim Rts. L. Ctr. v. Cardona, 552 F.
Supp. 3d 104, 127 (D. Mass. 2021). An agency action also must be
set aside as contrary to law when it is inconsistent with
regulations. See, e.g., Nat’l Env’t Dev. Ass’n’s Clean Air Project
v. EPA, 752 F.3d 999, 1011 (D.C. Cir. 2014); see also Norton v. S.
Utah Wilderness All. (SUWA), 542 U.S. 55, 65 (2004) (noting that
“law,” as used in the APA, “includes . . . agency regulations that
have the force of law”).
Multiple statutes and regulations provide the permitting
architecture for wind projects. See supra note 7. These laws
contain a variety of fixed deadlines, see, e.g., 33 U.S.C.
38Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 39 of 47
§ 1344(a) (requiring the Army Corps of Engineers to publish notice
of a dredge-and-fill permit application within fifteen days of a
completed application), and also more general language commanding
agencies to act promptly, see, e.g., 50 C.F.R. § 13.11(c)
(requiring the U.S. Fish and Wildlife Service to process certain
permit applications “as quickly as possible”).
Plaintiffs contend that the Wind Order violates various
specific and general statutory and regulatory permitting
deadlines, as well as provisions of the APA requiring reasonably
expeditious agency proceedings, see 5 U.S.C. §§ 555(b), 558(c).
The Agency Defendants respond that because “Congress has set
deadlines in issuing decisions on some types of wind energy project
applications but has left others to the discretion of the
applicable agency,” the Agency Defendants can theoretically
satisfy all specific deadlines while still lawfully withholding
final decisions on wind energy authorizations pursuant to the Wind
Order. Dkt. 180 at 37.
Even if specific processing deadlines are met, the Wind Order
necessarily directs agencies to violate two APA provisions. See
FCC v. NextWave Pers. Commc’ns Inc., 537 U.S. 293, 300 (2003)
(noting that an agency action is contrary to law under § 706(2) if
it is inconsistent with “any law, . . . not merely those laws that
the agency itself is charged with administering”). First, the APA
requires that “within a reasonable time, [an] agency shall proceed
39Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 40 of 47
to conclude a matter presented to it.” 5 U.S.C. § 555(b). This
provision “imposes a general but nondiscretionary duty upon an
administrative agency to pass upon a matter presented to it ‘within
a reasonable time.’” Mashpee Wampanoag Tribal Council, Inc. v.
Norton, 336 F.3d 1094, 1099 (D.C. Cir. 2003) (quoting 5 U.S.C. §
555(b); accord, e.g., Fed. Energy Regul. Comm’n v. Powhatan Energy
Fund, LLC, 949 F.3d 891, 903 (4th Cir. 2020); see also Kingdomware
Techs., Inc. v. United States, 579 U.S. 162, 171 (2016) (“[T]he
word ‘shall’ usually connotes a requirement.”).
Second, “[w]hen application is made for a license required by
law, [an] agency, . . . within a reasonable time, shall set and
complete proceedings required to be conducted in accordance with”
procedures governing formal adjudications “or other proceedings
required by law and shall make its decision.” 5 U.S.C. § 558(c).12
This provision requires that any adjudicatory hearings mandated by
law with respect to license applications “be set and completed in
an expeditious and judicious manner.” City of West Chicago v. U.S.
Nuclear Regul. Comm’n, 701 F.2d 632, 644 (7th Cir. 1983) (quoting
Marathon Oil Co. v. EPA, 564 F.2d 1253, 1260 n.25 (9th Cir. 1977));
12 The Agency Defendants contend that § 558(c) governs only “formal
adjudications and rulemakings involving licenses.” Dkt. 209 at 18
n.9. Not so. The provision also expressly contemplates “other
proceedings required by law.” 5 U.S.C. § 558(c); see Marathon Oil
Co. v. EPA, 564 F.2d 1253, 1260 n.25 (9th Cir. 1977) (noting that
§ 558(c) extends to “other types of licensing proceedings” beyond
formal adjudications governed by §§ 556 and 557).
40Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 41 of 47
accord, e.g., Beach TV Props., Inc. v. Solomon, No. 15-1823, 2016
WL 6068806, at *12 (D.D.C. Oct. 14, 2016). The term “license” is
defined broadly by the APA to include any “permit, certificate,
approval, registration, charter, membership, statutory exemption
or other form of permission.” 5 U.S.C. § 551(8). As noted in the
Attorney General’s Manual on the APA -- “a document whose reasoning
[the Supreme Court] ha[s] often found persuasive,” SUWA, 542 U.S.
at 63 -- § 558(c) requires agencies to “hear and decide licensing
proceedings as quickly as possible.” Attorney General’s Manual on
the Administrative Procedure Act 89-90 (1947); see Marathon Oil,
564 F.2d at 1260 n.25. As with § 555(b), the word “shall” in §
558(c) reflects that that provision’s directive is
nondiscretionary. See Kingdomware Techs., 579 U.S. at 171.
The Wind Order is contrary to both of these provisions of
the APA. An indefinite halt on issuing (or denying) all
authorizations related to wind projects violates the statutory
requirement that agencies must “proceed to conclude . . . matter[s]
presented to” them “within a reasonable time.” 5 U.S.C. § 555(b);
see Ensco Offshore Co. v. Salazar, 781 F. Supp. 2d 332, 336-37
(E.D. La. 2011) (holding that the Interior Department’s inaction
on permit applications pursuant to a moratorium on offshore
drilling likely was inconsistent with § 555(b)). Nor is the
moratorium on permitting of wind energy projects consistent with
the Agency Defendants’ obligation to “set and complete
41Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 42 of 47
proceedings” and “make [their] decision[s]” on license
applications “within a reasonable time.” 5 U.S.C. § 558(c).
Of course, §§ 555(b) and § 558(c) do not require any
particular result, and the Court expresses no view on whether the
Agency Defendants should issue or withhold any particular permit.
Cf. Massachusetts, 790 F. Supp. 3d at 21 (“It is a feature, not a
bug, of th[e] [APA] that, when the smoke settles, the parties may
find themselves in roughly the same place they began.”). But, while
a President may direct a reappraisal of permitting practices after
a change of administration, see State Farm, 463 U.S. at 59
(Rehnquist, J., concurring), the Agency Defendants may not, as
they have done here, decline to adjudicate applications
altogether, for an unspecified time, pending the completion of a
wide-ranging assessment with no anticipated end date. See
Louisiana, 622 F. Supp. 3d at 294 (holding that moratorium on oil
and gas leasing was contrary to law because “[b]y stopping the
process, the agencies [we]re in effect amending two Congressional
statutes”); Texas, 524 F. Supp. 3d at 651-52 (finding that 100- day
pause on removals likely was contrary to statute generally
requiring removals within 90 days); Stenson Tamaddon, LLC v. U.S.
IRS, 742 F. Supp. 3d 966, 992 (D. Ariz. 2024) (noting that an
indefinite moratorium on processing certain claims would “directly
contravene” a statute mandating that the agency “shall” process
those claims). Rather, the Agencies must “either grant[] or deny[]
42Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 43 of 47
[each] permit application within a reasonable time. Not acting at
all is not a lawful option.” Ensco, 781 F. Supp. 2d at 336.
The Agency Defendants resist this conclusion by arguing that
Plaintiffs’ § 706(2) challenge is an improper vehicle for
challenging agency inaction in alleged violation of §§ 555(b) and
558(c). In their view, Plaintiffs have used the wrong tool in the
APA toolbox. According to the Agency Defendants, Plaintiffs’ sole
potential avenue for relief was through § 706(1), which allows
courts to “compel agency action unlawfully withheld or
unreasonably delayed.” 5 U.S.C. § 706(1). See generally SUWA, 542
U.S. at 61-65 (discussing this provision).
Not so. Sections 706(1) and 706(2) are not mutually exclusive.
See All. To Save The Mattaponi v. U.S. Army Corps of Eng’rs, 515
F. Supp. 2d 1, 10 (D.D.C. 2007); see also, e.g., Hi-Tech Pharmacal
Co. v. U.S. FDA, 587 F. Supp. 2d 1, 10 (D.D.C. 2008) (noting that
a “failure to act” that “is the functional equivalent of final
agency action” may form “the basis for an APA claim pursuant to
[§] 706(2)”). For that reason, multiple courts have held agency
policies of inaction to be contrary to law under § 706(2). See,
e.g., Louisiana, 622 F. Supp. 3d at 294; Texas, 524 F. Supp. 3d at
651-52. The Court does the same here.
Nor does the Wind Memo’s savings clause -- which instructs
agencies to “implement[] [the Wind Memo] consistent with
applicable law” -– warrant a different conclusion. Temporary
43Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 44 of 47
Withdrawal of All Areas, 90 Fed. Reg. at 8364. It may be true, as
the Agency Defendants argue, that if an “agency is capable of
following an Executive directive ‘consistent with applicable law,’
it must be permitted to do so.” Dkt. 180 at 42; cf. Trump v. Am.
Fed’n of Gov’t Emps., 145 S. Ct. 2635, 2635 (Sotomayor, J.,
concurring) (noting, where agency reduction-in-force plans
pursuant to an executive order with similar savings clause were
not yet before the Supreme Court, that the Court had “no occasion
to consider whether the[] [plans] c[ould] and w[ould] be carried
out consistent with the constraints of law”). But Plaintiffs have
challenged “the Agency Defendants’ actions under the” Wind Memo,
not the Wind Memo itself. New York, 133 F.4th at 70 n.17. The proof
is in the pudding: No permits have issued since the Wind Order was
promulgated, and the Agency Defendants acknowledge that they will
not issue any permits at least until they complete the
Comprehensive Assessment, for which there is no timeline. See,
e.g., Dkt. 123-2 ¶ 6 (“The [Army] Corps [of Engineers] . . . does
not intend to issue any permits until the [C]omprehensive
[A]ssessment . . . is completed.”). That action is contrary to
law. See Louisiana, 622 F.3d at 275, 294 (holding pause on oil and
gas leasing to be contrary to law despite being implemented
pursuant to executive order containing similar savings clause).
44Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 45 of 47
For these reasons, in addition to being arbitrary and
capricious, the Wind Order must be set aside on the independent
basis that it is contrary to law. See 5 U.S.C. § 706(2)(A), (C).13
IV. Remedy
Where, as here, a court determines that an agency action is
arbitrary and capricious or contrary to law, the APA authorizes
the court to “hold unlawful and set aside” that action. 5 U.S.C.
§ 706(2). “[T]he ordinary result” in response to finding an agency
action unlawful “is that the [action is] vacated -- not that [its]
application to the individual p[laintiffs] is proscribed.” Nat’l
Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409
(D.C. Cir. 1998) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495
n.21 (D.C. Cir. 1989)); see Corner Post, Inc. v. Bd. of Governors
of the Fed. Rsrv. Sys., 603 U.S. 799, 829-30 (2024) (Kavanaugh,
J., concurring) (“The text and history of the APA authorize
vacatur. . . . [T]o ‘set aside’ a[n] [agency action] is to vacate
it.”); Ass’n of Am. Univs. v. Dep’t of Def., __ F. Supp. 3d __, __
13 Because the Court concludes that the Wind Order must be set
aside as substantively invalid, the Court need not resolve ACE
NY’s additional claim that the Wind Order is procedurally invalid
due to being adopted without notice and comment. See Cent. Or.
Hosp. Dist. v. Sullivan, 757 F. Supp. 1134, 1145 n.13 (D. Or. 1991)
(“Plaintiff also alleges that the notice and comment procedures of
the APA were violated . . . . Because the court has found the
Secretary’s actions arbitrary and capricious, the court does not
reach this claim.” (citation omitted)).
45Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 46 of 47
(D. Mass. 2025) [2025 WL 2899765, at *27-30] (explaining in depth
why vacatur is appropriate under the APA).
The Agency Defendants request that the Court issue at most a
“limited vacatur” that lifts implementation of the Wind Order only
“with respect to the specific wind projects and their pending
applications and authorizations that are found to be inconsistent
with applicable law and for which [Plaintiffs] are able to prove
a certainly impending harm.” Dkt. 180 at 48. But although the
Supreme Court recently held that courts lack the authority to issue
universal injunctions, it specifically declined to alter existing
law on “whether the [APA] authorizes federal courts to vacate
federal agency action.” Trump v. CASA, Inc., 606 U.S. 831, 847 &
n.10 (2025) (citing 5 U.S.C. § 706(2))). Under circuit precedent,
vacatur “is a proper remedy when an agency fails to explain its
reasoning adequately” or has acted contrary to law. Harrington v.
Chao, 280 F.3d 50, 60 (1st Cir. 2002). And “[g]iven the breadth of
the [Wind Order’s] coverage, the p[roject]-specific vacatur
requested by the [Agency Defendants] is not feasible.” Custom
Commc’ns, Inc. v. FTC, 142 F.4th 1060, 1075 (8th Cir. 2025) (per
curiam).
ACE NY also expressly requests that the Court issue a
declaratory judgment that the Agency Defendants have violated the
APA. Because the Agency Defendants “offer no specific objection to
declaratory judgment as an available or appropriate form of
46Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 47 of 47
relief[,] . . . the Court will issue declaratory judgment.” Ass’n
of Am. Univs., __ F. Supp. 3d at __ [2025 WL 2899765, at *30]; see
also Am. Pub. Health Ass’n v. Nat’l Insts. of Health, 145 F.4th
39, 50 (1st Cir.) (“[D]eclaratory relief . . . is well within the
scope of the APA.”), rev’d in part on other grounds, 145 S. Ct.
2658 (2025). Nor do the Agency Defendants develop any argument
that the Wind Order should be remanded to the relevant agencies.
Accordingly, the Court vacates the Wind Order and declares it
unlawful in violation of 5 U.S.C. § 706(2)(A) and (C).
ORDER
For the foregoing reasons, Plaintiffs’ motions for summary
judgment (Dkts. 172, 175) are ALLOWED and the Agency Defendants’
motion for summary judgment (Dkt. 179) is DENIED. The Wind Order
is declared unlawful, see 5 U.S.C. § 706(2), and is VACATED in its
entirety.
SO ORDERED.
/s/ PATTI B. SARIS________________
Hon. Patti B. Saris
United States District Judge
47
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