The newest strategy employed by the Trump administration to drag out potential legal consequences: a federal shutdown.
That’s the logic presented by the U.S. Department of Justice asking for more time to respond to a federal lawsuit filed by Rhode Island and Connecticut attorneys general over the Revolution Wind project.
“Absent an appropriation, Department of Justice attorneys are prohibited from working, even on a voluntary basis, except in very limited circumstances, including ‘emergencies involving the safety of human life or the protection of property,’” the attorneys wrote in a two-page filing submitted in federal court in Rhode Island Wednesday.
Wednesday marked the first full day of the federal government shutdown after Congress failed to pass a spending plan for the new fiscal year. It was also the deadline for Justice Department attorneys to submit a written response in Rhode Island federal court on whether the judge should temporarily bar the Trump administration from interfering in the offshore wind project being built south of Rhode Island’s coastline.
Rhode Island Attorney General Peter Neronha and Connecticut Attorney General William Tong filed the lawsuit on Sept. 4, 13 days after federal regulators ordered work to stop on the 65-turbine wind project, which was already 80% complete. Orsted and Skyborn Renewables, the companies co-developing the project, filed their own lawsuit on the same day in federal court in D.C.
A D.C. judge already granted the developers’ request for temporary relief, with a bench ruling on Sept. 22 that allows work to resume on the project while the court case plays out.
In Rhode Island, the AGs’ request for a preliminary injunction, keeping the administration from interfering with the wind project, remains pending.
The AGs pushed back against the Justice Department’s shutdown reasoning as rationale for an extension. Federal law specifies that only voluntary services “exceeding those authorized by law,” are banned during the shutdown. The case, and its implications for the two states whose economies, electric grids and decarbonization mandates depend upon the project’s completion, is not voluntary, the AGs wrote in a two-page response Wednesday.
Even before the shutdown, Justice Department lawyers sought more time to submit their required response to the court, or to suspend the pending motion entirely because of the D.C. judge’s order.
“It makes little sense to proceed right now with Plaintiffs’ motion, and there is certainly no need to proceed on the schedule set forth in the local rules,” Adam Gustafson, acting assistant general for the Justice Department’s Environmental and Natural Resources Division, wrote in a Sept. 26 filing in federal court in Rhode Island. “The stop work order has been enjoined. There is currently no harm to Plaintiffs or anyone else emanating from the stop work order.”
The AGs countered that the situation remained “tenuous, at best,” noting the likelihood of an appeal of the D.C. judge’s ruling, in turn jeopardizing progress on the offshore wind project with “potentially disastrous consequences.”
The Trump administration has not appealed the D.C. judge’s ruling as of Thursday, though challenges to higher courts have been a common strategy of the administration in many of the lawsuits against it.
In an order Wednesday, McElroy acknowledged the overlap with the D.C. case, but said that was no reason for the Rhode Island federal court to “pass on exercising its duty to determine whether litigants are entitled to relief,” according to the public court docket. McElroy did agree, however, to give the Trump administration more time – setting a new deadline of Oct. 22 to respond to the AGs motion for a preliminary injunction.
The Justice Department did not immediately respond to inquiries for comment on Thursday, though its website notes that its inbox for media requests will not be monitored on a regular basis due to the federal shutdown.
The earliest Congress could pass a short-term spending plan is Friday.
Neronha praised McElroy’s order in a statement Thursday.
“I am grateful that Judge McElroy recognized that this litigation should not have to await the outcome of the D.C. case, as the states have their own unique claims and reliance interests at stake,” Neronha said.
He was unsympathetic to the Justice Department’s plea for more time because of the federal shutdown.
“We are here because the Trump Administration unlawfully halted a wind energy project that was already approved and 80% complete,” Neronha said. “If they want to stop working, they can agree to a consent judgment granting the states the entirety of the relief we seek, which is plainly warranted.”
The $5 billion project created jobs for 1,200 union workers, and is critical to helping both states — already under power purchase agreements for the 704-megawatts of nameplate capacity — meet environmental mandates and reduce ratepayers’ energy costs.
This story was originally published by the Rhode Island Current.
