Un-Permitted Rescission? Permitting Rules & Reliance Interests
Coleman Hopkins
In its first year, the second Trump Administration has moved aggressively to reshape the federal government, upending Executive Branch norms[1] and expectations[2] that once seemed secure. Green energy programs — long disfavored by President Trump[3] — have been a particular target, with the administration moving to review[4] and rescind[5] already-issued permits for major projects. This challenges a longstanding rule: once issued, such permits are generally not disturbed.[6] Unsurprisingly, the administration’s move has already been challenged in court.[7]
The outcome of this litigation[8] carries significant implications for private-sector interests at the intersection of environmental and administrative law. This post contends that if the administration’s actions are upheld, they will open a new front in the ongoing struggle over the trajectory of administrative law — and one with far-reaching consequences for reliance interests and for corporations that might otherwise support the president’s deregulatory agenda.
In assessing these issues, this post proceeds in three parts: Part I outlines the federal permitting framework; Part II recounts the background and litigation surrounding Ørsted’s Revolution Wind project; and Part III considers the broader implications of the stop-work order and the government’s efforts to unwind other permitted wind projects.
Part I — Established Permitting Procedure
The federal environmental regulatory permitting framework is meticulous and protracted, spanning multiple agencies.[9] Any discussion of it must begin with the National Environmental Policy Act (NEPA), which imposes procedural requirements on all major federal actions — such as permitting for public and private projects — that significantly affect the human environment.[10] To oversee NEPA compliance, Congress created the Council on Environmental Quality (CEQ).[11] Housed within the Executive Office of the President, CEQ has historically[12] served as the environmental law brainstem of the Executive Branch: it issues binding regulations, reviews agency procedures, and updates NEPA’s implementing framework as needed.[13]
Under NEPA, the agency with jurisdiction over a proposed action must first prepare an Environmental Assessment (EA) as a threshold evaluation of potential environmental impact.[14] If the EA supports a Finding of No Significant Impact (FONSI), the agency may conclude its NEPA review and move forward with its internal permitting process. If, however, the EA reveals likely significant impacts, the agency must prepare a more rigorous Environmental Impact Statement (EIS). The EIS process requires detailed analysis of direct, indirect, and cumulative effects, as well as a period for public review and comment.[15] NEPA’s structure demands that agencies compile and consider a robust factual record before acting — but the record alone does not dictate the substantive outcome of agency decisions.[16]
NEPA is highly structured and demands information to justify actions.[17] Yet it is only the first step of the longer permitting process. Even if a project clears NEPA review, whether it ultimately receives a permit depends on the substantive statutes and regulations governing the agency’s authority.[18] Each agency conducts an independent determination under its own organic law.[19] For example, the Army Corps of Engineers may issue permits subject to the Clean Water Act, [20] while the Bureau of Ocean Energy Management oversees offshore wind leases under the Outer Continental Shelf Lands Act.[21]
Once an agency issues a permit following this layered process, rescission is rare. Statutes typically allow it only under narrow circumstances — such as the Clean Water Act’s § 404 veto authority[22] — and administrative law principles of fairness and reliance weigh heavily against late-stage cancellations. Likewise, post-permitting review is uncommon for many of the same reasons, not the least of which is the seismic economic impact such reviews can have on already begun projects and the substantive investments underpinning them.
These established rules are workable insofar as they provide regulatory agencies sufficient time and control over the review of projects. They also give parties seeking permits confidence that, once the process is complete and the permits issued, they may proceed with their projects knowing that — barring something extraordinary — their approvals will stand.
Whether that presumption against post-procedural rescission and review remains in force may soon be a question for courts — and it could arise quickly following a recent Supreme Court decision potentially opening the door to such questions.[23]
Part II — Ørsted Litigation & The Challenge to the Permitting Status Quo
This summer, the Department of Interior (DOI), at the president’s direction, took the unusual step of issuing a stop-work order on an already-issued permit for a nearly completed offshore wind project.[24] The move raises questions about the stability of issued permits and the limits of administrative discretion.
The dispute centers on Ørsted, a Danish company developing Revolution Wind off Rhode Island’s coast. In August, DOI issued a stop-work order alleging that Ørsted failed to comply with permit conditions tied to national security and scientific concerns.[25] Ørsted sought relief in federal court, and in late September, Judge Lamberth of the U.S. District Court for the District of Columbia issued a preliminary injunction blocking DOI’s order.[26] In so doing, he criticized the government’s arbitrary justifications and expressed concern for Ørsted’s reliance interests — both deeply rooted principles in administrative law.[27]
Judge Lamberth’s comments suggest the administration’s effort to restrict issued permits is likely to encounter significant judicial pushback. But with either side poised to appeal, the issue is not resolved. The case’s ultimate outcome could have far-reaching implications, including shaping the posture of private parties with future matters that could appear before permitting agencies.
Part III — Recalibrating Reliance Interests
Although the Ørsted litigation is still in its early stages and the outcome is uncertain, it should raise substantial concerns for parties currently seeking permits and those likely to be similarly situated in the future. Depending on how courts resolve the scope of presidential and agency authority to revise and revoke permits, private parties — once broadly sympathetic to a deregulatory agenda — may instead find themselves supportive of established permitting rules.
The maxim ‘the devil you know’ is apt. In an era of administrative law tumult, those with long-term interests, often tied to significant organizational and investment costs, may rationally conclude that their interests are better served by preserving today’s longer-but-more-certain permitting regime rather than embracing the mercurial and uncertain system of tomorrow. Indeed, the latter carries a genuine risk that political shifts could disrupt permits long after they were issued. Ørsted is proof that such political risks are already present.
The outcome of Revolution Wind, LLC v. Burgum should give private parties due notice of the law’s trajectory on permitting.[28] For that reason alone, the case warrants close attention.
[1] For example, President Trump has issued over one-hundred executive orders and “declared at least eight national emergencies” since taking office in January. Alexandra Hutzler, In an Unprecedented Move, Trump Has Pushed the Limits of Presidential Power in His First 100 Days, ABC News (Jan. 28, 2025), https://abcnews.go.com/Politics/unprecedented-trump-pushed-limits-presidential-power-100-days/story?id=121124189.
[2] See Annette Choi, Danya Gainor & Kate Carroll, Tracking Federal Workforce Firings, CNN(July 14, 2025) https://www.cnn.com/politics/tracking-federal-workforce-firings-dg (chronicling President Trump’s unprecedented removal of career civil service).
[3] See Oliver Milman, Trump’s hatred of renewables means the US is falling behind the rest of the world, The Guardian, (Oct. 5, 2025), https://www.theguardian.com/environment/2025/oct/05/donald-trump-hatred-renewables-us-falling-behind-world (summarizing the second Trump administration’s energy policy).
[4] Jan Wolfe & Nichola Groom, US judge rules Trump cannot block Rhode Island offshore wind project. Reuters, (Sept. 22, 2025),https://www.reuters.com/sustainability/climate-energy/us-court-weighs-trump-halt-rhode-island-offshore-wind-project-2025-09-22/
[5] Nichola Groom & Nate Raymond, Trump administration plans to cancel approval of Maryland offshore wind project, Reuters, (Aug. 26, 2025), https://www.reuters.com/business/energy/trump-administration-plans-cancel-approval-maryland-offshore-wind-project-2025-08-25/
[6] Eric Biber & J.B. Ruhl, The Permit Power Revisited: The Theory and Practice of Government Permits, 64 Duke L.J. 133, 209 (2014) (discussing many limits on permit revision or revocation).
[7] Revolution Wind, LLC v. Burgum, 1:25-cv-02999, (D.D.C. Oct. 24, 2025) (CourtListener)
[8] Id.
[9] See 42 U.S.C. §§ 4321, 4332(C).
[10] Id.
[11] Brandon Tuck, et al., “The New NEPA: Federal Agencies Overhaul Procedures for Environmental Reviews,” Insights, Vinson & Elkins, https://www.velaw.com/insights/the-new-nepa-federal-agencies-overhaul-procedures-for-environmental-reviews/ (last visited Nov. 1, 2025).
[12] While beyond the scope of this blog post, it must be mentioned that CEQ recently repealed its NEPA implementing regulations, which adds further uncertainty into the shifting permitting process. See Removal of National Environmental Policy Act Implementing Regulations, 90 Fed. Reg. 15,243 (proposed Mar. 5, 2025) (to be codified at 40 C.F.R. pt. 1500), https://www.federalregister.gov/documents/2025/02/25/2025-03014/removal-of-national-environmental-policy-act-implementing-regulations.
[13] Tuck, supra note 10.
[14] Id.
[15] Here and elsewhere, NEPA requirements parallel Administrative Procedure Act “notice-and-comment” rulemaking, which underscores the exacting nature of, and deep reliance upon, issued permits.
[16] See, e.g., Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978); Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (“NEPA merely prohibits uninformed — rather than unwise — agency action.”).
[17] See 42 U.S.C. §§ 4321, 4332(C).
[18] See Tuck, supra note 11.
[19] Id.
[20] See U.S. Environmental Protection Agency, Permit Program Under CWA Section 404, https://www.epa.gov/cwa-404/permit-program-under-cwa-section-404 (last visited Nov. 1, 2025).
[21] See Bureau of Ocean Energy Management, Lease and Grant Information, https://www.boem.gov/renewable-energy/lease-and-grant-information (last visited Nov. 1, 2025).
[22] See supra note 18.
[23] See Seven County Infrastructure Coalition v. Eagle County, 605 U.S. ___ (2025) (No. 23‑975) (holding that agencies may revise and narrow the scope of previously completed environmental reviews). The decision represents a significant shift, and it may prompt backward-looking challenges to previously completed environmental reviews.
[24] Wolfe & Groom, supra note 4.
[25] Id.
[26] Id.
[27] While the contexts differ, the principles of reasoned justification and sensitivity to reliance interests permeate administrative law litigation. See, e.g., Motor Vehicle Manufacturers Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (requiring government offer reasoned justifications for policy changes); FCC v. Fox Television Stations, Inc., 556 U.S. 502 (2009) (emphasizing the importance of reliance interests in administrative law).
[28] See supra note 6.