State of New York et al v. Trump et al

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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
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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).
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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.
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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
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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.
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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
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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.
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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
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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
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[§ 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
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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
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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
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“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,
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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)).
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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.
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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,
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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
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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
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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
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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.
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§ 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
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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).
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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
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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[]
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[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
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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).
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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)).
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(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
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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
Case 1:25-cv-11221-PBS Document 234 Filed 12/08/25 Page 47 of 47