By: Robbie Gordon
Published: April 18, 2026
The United States’ electric grid faces unprecedented pressure to expand its generation capacity to tackle the oncoming electricity affordability and reliability crises, which will have the greatest impact on the most vulnerable ratepayers.[1] Despite the imminent need to facilitate as many new energy projects as possible, the Trump Administration has placed a moratorium on all solar and wind projects.[2] In advancing this policy, the Department of Interior (“DOI”) acted beyond its statutory authority by issuing a July 15th Memorandum (“the Memo”), which requires significantly heightened review procedures for all DOI decisions, actions, consultations, or other undertakings related to wind and solar energy projects.[3] Requiring Secretarial sign-off for all solar and wind related actions is functioning as a “full-stop” on renewables, indefinitely delaying the development of the fastest-growing source of new electricity generation needed to supply the energy to meet significant growth projections.[4] In addition to the impracticality of this DOI policy, the Memo is an unlawful exercise of Executive power in violation of the Federal Land Policy and Management Act’s (“FLPMA”) congressionally delegated authority, and the rulemaking requirements under the Administrative Procedure Act (“APA”)—and should therefore be set aside.[5]
Violations of Constitutional Doctrines
First, the Memo rests on an impermissible interpretation of the Secretary’s authority under FLPMA, which violates the Property Clause and implicates the Major Questions Doctrine (“MQD”).[6] While FLPMA delegates DOI the authority to manage the use of certain public lands, even where a “colorable textual basis” exists for such executive action, separation-of-powers principles and “‘common sense as to the manner in which Congress [would have been] likely to delegate’ such power” are used to assess the authority the executive branch has claimed.[7] Congress has the sole authority under the Property Clause to regulate property; however, the Supreme Court has suggested that there are some limits on the ability to delegate this authority.[8] FLPMA defines “multiple use” in part to mean that “some [public] land” may be used “for less than all of the resources,” only after “consideration [is] given to the relative values of the resource,” and not necessarily to the combination of uses that will give the greatest economic return or the greatest unit output.”[9] In short, no one use of land should dominate another; however, the Memo curtails one use in favor of other energy sources, violating FLPMA’s balanced approach. Therefore, by creating new hurdles that effectively limit competing land uses and resource interests in favor of politically favored energy development, the Memo runs contrary to the Secretary’s delegated authority under FLPMA’s multiple-use directive.
In delegating its Property Clause authority, Congress ensured the Secretary must follow exacting procedures to withdraw public lands from certain uses, including a public hearing, notice and comment period, and State and local government consultation.[10] The Secretary’s refusal to sign off on any decisions relating to renewable energy project authorizations fits “squarely within” FLPMA’s definition of withdrawal because it “effectively remove[s] large areas of federal land from leasing …in order to maintain other public values in the area…”[11] To justify “the exercise of broad power,” the Secretary “must point to ‘clear congressional authorization’ for the power [he] claims,” and FLPMA reflects no congressional finding, suggesting that Congress deemed it necessary to give the Secretary unlimited authority to “withdraw” or set aside vast amounts of land without the express consent of Congress. [12] By using the Secretary’s authority under FLPMA to pause all renewable energy leases on federal lands, the Memo unilaterally imposes a new energy policy without the requisite statutory authority from Congress.[13]
Abuse of Executive Authority
Second, the Memo is unlawful because it is a binding legislative rule, issued without notice and comment rulemaking, and should therefore be vacated due to the procedural omission in the rulemaking process. [14] While rules of agency organization and procedure may be exempt from the notice and comment process under § 553(b)(A) of the APA, agency actions are not procedural if they encode a substantive value judgment that results in a substantial impact on regulated communities.[15] The requirement that “all decisions, actions, consultations, and other undertakings. . . related to wind and solar energy facilities,” receive review from the Secretary clearly attempts to establish his substantive value judgment regarding renewable energy policy.[16] Additionally, the Memo clearly operates as a rule, seeing as how federal agencies—including the Fish and Wildlife Service (“FWS”)—have already begun implementing these directives. For example, FWS has temporarily disabled automated tools in the Intra-Governmental Payment and Collection System (“IPaC”) for solar and wind projects, affecting how the FWS identifies protected species in project areas and the determinations of the impacts of the projects on those species.[17] The failure of the DOI to adhere to the notice and comment process means the Memo was promulgated in violation of the APA, making it’s heightened review procedure unenforceable. [18]
Currently the fastest growing enterprise in the market, renewable energy projects deliver low-cost energy while investing in jobs that directly benefit local communities and ensure affordable, reliable energy for all ratepayers. Despite this, the Secretary is unilaterally imposing a new energy policy on federal lands without clear statutory authority from Congress or the appropriate rulemaking procedures required by the APA. The Secretary has purported to exercise sweeping authority that would gut the very reasons for FLPMA’s existence. By creating a near-insurmountable permitting backlog for renewable projects, the Secretary is exercising power that is outside the scope of the intelligible principles granted to DOI by statute, functionally overrides FLPMA’s detailed land management mandates, and does so without observing the procedures required by law. If the moratorium is not lifted, the renewable energy projects already in the lengthy permitting pipeline will be cancelled, sacrificing thousands of megawatts of electric generation necessary to supply the energy needed to meet the unprecedented rise in energy demand.
[1] See Characteristics and Risks of Emerging Large Loads, N. Am. Elec. Reliability Corp. 1, 16 (July 2025), https://www.nerc.com/globalassets/who-we-are/standing-committees/rstc/whitepaper-characteristics-and-risks-of-emerging-large-loads.pdf (finding resource adequacy at risk as large loads such as data centers are “proliferating more quickly than most historical load growth . . . and current system plans may not be able to meet it. As a result, demand may outstrip generation supply in the near future.”).
[2] Nichola Groom, Wind and Solar Power Frozen Out of Trump Permitting Push, Reuters (Dec. 10, 2025), https://www.reuters.com/sustainability/climate-energy/wind-solar-power-frozen-out-trump-permitting-push-2025-12-10/.
[3] Gregory Wischer, Departmental Review Procedures for Decisions, Actions, Consultations, and Other Undertakings Related to Wind and Solar Energy Facilities, Dep’t of the Interior, Off. of the Sec’y (July 15, 2025), https://www.doi.gov/media/document/departmental-review-procedures-decisions-actions-consultations-and-other.
[4] See Brad Pulmer, Interior Dept. to Put Wind and Solar Projects Through Stricter Review, NY Times (July 17, 2025), https://www.nytimes.com/2025/07/17/climate/interior-dept-wind-solar.html (requiring that agency actions be reviewed by the Interior Secretary instead of progressing through traditional lower-level agency staff).
[5] See 5 U.S.C. § 706(2)(A), (C) (stating that a “reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . not in accordance with law” or “in excess of statutory jurisdiction, authority, or limitations”).
[6] See West Virginia v. EPA, 597 U.S. 697, 721 (2022) (expressing that MQD is implicated where the “‘history and the breadth of the authority that [the executive branch] has asserted,’ and the ‘economic and political significance’ of that assertion,” suggest that Congress never “meant to confer such authority”).
[7] Id. at 722-23.
[8] See Kleppe v. New Mexico, 426 U.S. 529, 539 (1976) (stating that “the furthest reaches of the power granted by the Property Clause have not yet been definitively resolved”).
[9] 43 U.S.C. § 1702.
[10] See 43 U.S.C. §§ 1702, 1714, 1739.
[11] Mountain States Legal Foundation v. Andrus, 499 F.Supp. 383, 391 (D.Wyo. 1980).
[12] West Virginia v. EPA, 597 U.S. 697, 723 (2022).
[13] See 43 U.S.C. § 1701(b) (explaining that the land use policies of FPMA are “effective only as specific statutory authority for their implementation is enacted by this Act”).
[14] See 5 U.S.C. § 551(4) (defining a rule to be “an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency…”).
[15] See Public Citizen v. Department of State, 276 F.3d 634, 640 (D.C. Cir. 2002) (explaining that the Court will not look to whether a rule has a substantial impact on parties, but to whether the agency action encodes a substantive value judgment).
[16] See Wischer, supra note 3.
[17] See IPaC Information for Planning and Consultation, U.S. Fish & Wildlife Serv., https://ipac.ecosphere.fws.gov (last visited Feb. 4, 2026) (stating that, consistent with the Memo, “solar and wind projects are currently not eligible to utilize the Information for Planning and Consultation website prior to review by the Office of the Deputy Secretary, and final review by the Office of the Secretary”).
[18] See 5 U.S.C. §706(2)(D) (stating a “reviewing court shall. . . hold unlawful and set aside agency action. . . found to be. . . without observance of procedure required by law”).