The Nickel Report

Since its first day in office, the current administration has taken steps to curtail the development of renewable energy, and wind energy in particular. Just over a year in, the administration’s intentions do not seem to have changed, but there are signs that legal challenges are affecting implementation of its policies toward renewable energy development. 

In early 2025, the US Fish and Wildlife Service (USFWS or the Service) – one of eleven bureaus within the US Department of the Interior (DOI) – posted a statement on its website that the Service was “temporarily ceasing issuance of [eagle take general] permits to wind facilities until further notice.” At that time, USFWS had stopped allowing wind energy facilities to obtain coverage for incidental (unintentional) take of eagles under the Bald and Golden Eagle Protection Act (BGEPA or the Eagle Act). Then, in early 2026 –weeks after renewable energy industry groups filed suit challenging this “Eagle Take Permit Ban”– the Service removed the statement from its website and resumed issuing eagle take general permits for wind facilities. According to a list of current eagle take general permits posted on its website, USFWS did not issue a single eagle take general permit to a wind facility between early January 2025 and mid-January 2026 and then issued 34 permits for wind facilities in a two-week period ending on January 30, 2026.

Background

On January 20, 2025, President Trump issued a presidential memorandum (the Wind Memo) that withdrew all areas within the Offshore Continental Shelf from disposition for wind energy leasing and directed federal agencies to stop “issu[ing] 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.”

In response to the Wind Memo, several federal agencies paused the issuance of all wind energy permits and authorizations indefinitely, or announced requirements for high-level approvals or oversight. On the same day the Wind Memo was issued, DOI issued Order 3415 (the Wind Order), temporarily suspending all delegations of authority within DOI “[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.” By its terms, the Wind Order was to expire after 60 days, but in practice until very recently all relevant agencies appear to have maintained the pause on wind authorizations.

Litigation Developments

New York v. Trump

In May 2025, over a dozen states filed a complaint against the Trump administration in federal district court in Massachusetts alleging that the Wind Order violates the Administrative Procedure Act (APA). On December 8, 2025, the court issued an order granting the plaintiffs’ motion for summary judgment, declaring the Wind Order unlawful and vacating it.  On February 17, 2026, DOI and other federal government defendants filed a notice of appeal, indicating their intent to challenge the district court’s decision in the US Court of Appeals for the First Circuit.

BOEM Stop Work Orders

On December 22, 2025, DOI announced that, effective immediately, it was pausing all leases for large-scale offshore wind projects currently under construction in the US, due to identified national security risks. Accordingly, the US Bureau of Ocean Energy Management (BOEM) issued stop-work orders to five projects under development: Vineyard Wind 1, Revolution Wind, Coastal Virginia Offshore Wind, Sunrise Wind, and Empire Wind.

The wind project companies and several states challenged these stop-work orders in the federal district courts having jurisdiction over the areas where the projects were under development and sought injunctive relief. By early February 2026, the courts had issued preliminary injunctions against each of BOEM’s stop-work orders, allowing development of all five projects to proceed, at least temporarily.

Dispositive motion briefing is underway in the district courts, with key filings due throughout March and April 2026. Secretary of the Interior Doug Burgum told Bloomberg Television on Wednesday, February 11, that DOI will appeal any ruling that the orders are invalid, citing the national security concerns identified by DOI as justification for the orders. 

Renew Northeast v. DOI

On December 23, 2025, several solar and wind developers filed a complaint in the US District Court for the District of Massachusetts challenging six agency actions related to wind and solar energy.

Notably, one of the challenged actions is the Service’s “Eagle Take Permit Ban,” prohibiting wind facilities from obtaining permits for incidental take of eagles while DOI simultaneously announced an aggressive campaign to enforce BGEPA. The other challenged actions include:

• A DOI memo issued July 15, 2025, that requires review and approval from the Office of the Secretary of the Interior of decisions or actions relating to wind and solar energy facilities
• The Federal Lands Order 3438, issued August 1, 2025, that requires DOI, when reviewing a proposed energy project under the National Environmental Policy Act, to consider the “capacity density” of the project relative to other alternatives
• The US Army Corps of Engineers (Corps) Policy on Energy Generation Efficiency, issued September 22, 2025, requiring the Corps to “to weigh whether energy projects that might impact America’s navigable waters would actually deliver significant energy, relative to impacts, for the American people before it allows such activity”
• The Wind and Solar Information and Planning Consultation (IPaC) Ban prohibiting wind and solar projects from accessing the IPaC database maintained by USFWS
• The “Zerzan/Jorjani” M-Opinion, issued by the Solicitor’s Office for DOI on May 1, 2025, reinstating a previous M-Opinion that required the Secretary of the Interior “to act to prevent interference with reasonable uses in a way that errs on the side of less interference rather than more interference” when evaluating proposed activities on the Outer Continental Shelf

On January 12, 2026, plaintiffs filed a motion for a preliminary injunction to enjoin the defendants from implementing and enforcing the six challenged agency actions. Briefing is underway, and a hearing on the motion is expected in early March 2026.

Implications and Outlook

The Service’s unannounced (and unexplained) resumption of issuing eagle take general permits to wind energy facilities appears to be the first example of the administration stepping back from its efforts to hinder wind and solar energy development. Although this move seems to be in response to ongoing litigation and recent adverse court rulings, there are no indications that it signals an overall shift in the administration’s policies. It may reflect a recognition that the eagle take general permit for wind is not a “new or renewed approval[]” within the scope of the administration’s Wind Memo but rather an authorization that was issued in 2024 and has been on the books and available to wind projects as a legal matter ever since. Notably, the Service has continued to issue eagle take general permits for other activities, including for take through disturbance, take of nests, and take through operation of power lines.

The resumption of general permit approvals for wind energy facilities is a welcome change for wind energy developers and proponents. Although incidental take permits (for eagles or other protected species) are not construction or operation permits and therefore not required before a developer may build or operate a wind facility, they play an important role in mitigating compliance risk by precluding enforcement for take within authorized limits. Well-publicized enforcement actions against wind energy developers in recent years have resulted in millions of dollars in fines and payments for restitution for eagle take, as well as other obligations imposed through plea agreements. These previous enforcement actions were initiated under the Migratory Bird Treaty Act, a strict-liability criminal statute which the current administration has interpreted as not prohibiting incidental take. Presumably, any new enforcement action would be initiated under the Eagle Act, which imposes criminal penalties for take of eagles that is conducted “knowingly, or with wanton disregard for the consequences of his act.” 16 U.S.C. § 668(a).  

On August 4, 2025, DOI issued a memorandum directing the Service to, among other things, “refer violations of the [Eagle] Act to the Solicitor’s Office for its review and, where appropriate, referral to the U.S. Department of Justice for criminal and/or civil penalties.” Soon thereafter, the Service began issuing requests to holders of eagle take permits for records related to “activities conducted under [an] eagle incidental take wind general permit(s).” 

The extent to which the Service has initiated investigations or enforcement actions against wind energy facilities since January 2025 is unknown, but plaintiffs in the Renew Northeast litigation filed a joint declaration in support of their January 2026 motion for preliminary injunction that stated, “Since the August 4 memorandum, USFWS has begun bringing enforcement actions against operating wind projects that lack eagle incidental take permits,” that “several of plaintiffs’ members have attempted to obtain eagle incidental take permits but were told that USFWS was no longer processing applications[, and that] [s]ome of those members have since received enforcement communications premised on the absence of permits.” Joint Declaration ¶ 346. The plaintiffs also asserted that “USFWS has recently departed from its longstanding policy of exercising BGEPA enforcement discretion so long as a wind farm operator can demonstrate that they are implementing best practices for eagle take mitigation and minimization[, and] [i]nstead, USFWS is now issuing notices of violation and seeking penalties against member companies who are engaging in such best practices, often based on eagle takes reported by companies themselves that have been seeking permits.” Joint Dec. ¶ 351.  

For now, wind energy developers whose projects are eligible to rely on the eagle take general permit have a window of opportunity to obtain take coverage, but it may not last. The return to issuing eagle take general permits for wind facilities may represent a temporary reprieve rather than a permanent shift in the administration’s policies against wind energy production. Time will tell how the administration will respond to current litigation efforts, and whether those efforts will ultimately be successful in the courts. Those who are interested should continue to watch the courts and Congress as well as the agencies.