Ship Calm & Carry green – Where the wind blows
Context
In 2005, Congress amended OCSLA (the Outer Continental Shelf Lands Act) to authorize the Interior Secretary to issue leases on the Outer Continental Shelf for renewable energy production.
In doing so, Congress sought to enhance the energy security of the USA, decrease dependence on foreign sources of fuel, and ensure jobs for the future with secure, affordable, and reliable energy.
Five major wind farm projects had been awarded and some of them are above 80% completed :
- Revolution Wind (87% complete)
- Sunrise Wind (45% complete)
- Vineyard Wind 1
- Empire Offshore Wind LLC,
- Coastal Virginia Offshore Wind-Commercial
Each project had received federal approvals after years of environmental and interagency review, including consultation with the Department of Defense and evaluation of potential national security risks.
But on December 22, 2025, the federal administration ordered the immediate suspension of these five permitted offshore wind projects.
Suspension orders were issued in a Letter from Matthew N. Giacona, Acting Director, Bureau of Ocean Energy Management (the “BOEM”) ordering to “suspend all ongoing activities related to [the Wind Project] on the Outer Continental Shelf for the next 90 days for reasons of national security”, while the agency allegedly assesses whether the potential harms can be mitigated.
The justification invoked was an alleged national security threat, based on a hypothetical risk, identified by the Department of Defense, (also known today as “Department of war”), for turbine blades and reflective structures to interfere with radar systems.
Legal challenge
The Plaintiffs in their complaint filed on January 9, 2026, moved the Court for a stay pending review and a preliminary injunction of the Department of the Interior BOEM’s December 22, 2025, Director’s Order (the “Stop Work Order”).
Sunrise Wind said to be likely to prevail on the merits of its challenge to the Stop Work Order.
If the Project is cancelled, Sunrise Wind anticipates that it would also incur more than $1 billion in breakaway costs, for a total loss of more than $8 billion.
The grounds for its motion were established as follows:
- The stop work order lacks a reasonable explanation
- BOEM violated the change-in-position doctrine by ignoring substantial reliance interests
- The stop work order is arbitrary and capricious because it is overbroad
The stop work order deprives Sunrise Wind of a significant property interest without due process:
- BOEM deprived Sunrise Wind of its protected property interest
- BOEM denied Sunrise Wind required pre-deprivation process
The stop work order was issued without the procedures required by the APA
The stop work order was issued without statutory authority
Sunrise Wind faces substantial irreparable harm from construction delays due to the order
The stop work order poses existential threats to Sunrise Wind’s business
Sunrise Wind faces substantial irreparable reputational harm
Neither the public nor defendants will suffer harm from preliminary injunctive relief
The public interest strongly favors an injunction
Court’s Analysis
The Court finds that the Plaintiffs are entitled to a stay and preliminary injunction of the BOEM’s order.
The Plaintiffs have demonstrated likelihood of success on the merits of their underlying claims, they are likely to suffer irreparable harm in the absence of an injunction, the balance of the equities is in their favor, and maintaining the status quo by granting the injunction is in the public interest.
The Court assessed the balance of equities. In its view, construction should be allowed to proceed while the underlying claims are adjudicated.
The Court finds that the government administration failed to provide concrete, specific, or updated evidence of a national security risk justifying the challenged order.
Hence, the Court places strong emphasis on the immediate economic and operational impact:
- Offshore construction stoppage
- Contractual disruption
- Daily financial losses
Delays caused by the Stop Work Order impact the project’s financial viability. Ørsted estimates that this Order threatens to undermine the company’s ability to deliver on and receive revenues under its contracts.
For Sunrise Wind, developed by Ørsted, losses were estimated at USD 2.5 million per day.
Therefore, the judge finds that:
- Such losses cannot be fully remedied later
- Project viability is at risk
- Immediate resumption is legally justified
Implications
This last of five decisions completes a uniform line of district court rulings holding that, at least at the preliminary injunction stage, the administration’s asserted national security concerns do not outweigh the harm caused by halting projects that have already undergone extensive interagency review and permitting.
It must however be underlined that this is only the preliminary injunction stage. This preliminary injunctive relief does not end the proceedings, and claims will be heard by the Court later.
The ruling does not establish either an absolute right to offshore wind development.
On February 12, 2026, the US Secretary of the Interior, Doug Burgum, told Bloomberg Television the Department of the Interior (DOI) would appeal the rulings.
The decision nonetheless strengthens:
- Investor legal certainty
- Procedural predictability
- The judiciary’s role as a check on executive power.
➡️For any questions regarding environmental, energy or transportation law, please contact Fanny Berrezai.