Department of the Interior Issues Flurry of Actions Targeting Wind and Solar Energy Projects

Under Secretary Doug Burgum, the Department of the Interior (DOI) has quickly moved to implement Sections 4 and 5 of President Trump’s 7 July Executive Order 14315 titled “Ending Market Distorting Subsidies for Unreliable, Foreign-Controlled Energy Sources.” Executive Order 14315 directs DOI within 45 days to review its regulations, guidance, policies, and practices in order to determine whether they provide preferential treatment to wind and solar facilities in comparison to dispatchable energy resources and then take action to eliminate such preferences. 

DOI has taken multiple actions to implement Executive Order 14315, including the issuance of two secretarial orders, multiple memos and press releases, and a direct-to-final rule, each of which is detailed below. These actions are likely to significantly impact wind and solar projects, although the extent of those impacts will vary from project to project. Considered together, they align with previous Administration positions on renewable project development, particularly on federal land. Projects on private land will also face heightened risks to the extent they have an interface with DOI, such as the need for consultation or permitting with the US Fish and Wildlife Service (FWS). Wind projects in particular will also be exposed to increased risk of FWS enforcement for take of protected species under the Endangered Species Act (ESA), Bald and Golden Eagle Protection Act (BGEPA), and Migratory Bird Treaty Act (MBTA).

Memorandum Re: Departmental Review Procedures for Decisions, Actions, Consultations, and Other Undertakings Related to Wind and Solar Energy Facilities (15 July 2025)¹

This broad departmental memo, issued 15 July, requires all DOI “decisions, actions, consultations, and undertakings” related to wind and solar energy facilities to be (1) submitted to the Office of the Executive Secretariat and Regulatory Affairs, (2) subsequently reviewed by the Office of the Deputy Secretary, and (3) receive a final review by the Office of Secretary. In short, all DOI actions relating to wind and solar projects will require review and approval by Secretary Burgum’s office. This includes, but is not limited to, DOI decisions relating to leases, rights-of-way, construction and operation plans, National Environmental Policy Act (NEPA) review, ESA consultation, and incidental take permits. This marks a significant change shifting decisions that have historically been made by agency staff to the secretarial level. 

This memo has already had immediate impacts, beyond the introduction of additional requirements. In response, the FWS has stopped allowing wind and solar projects from utilizing its Information for Planning and Consultation (IPaC) website, which project developers commonly use to both (a) identify protected species in the vicinity of their projects and (b) obtain automated FWS determinations regarding potential effects on those species. FWS field offices have taken varying approaches to implementing this memo, with some offices indefinitely halting ongoing consultation processes and communications with applicants. For projects with a “federal nexus” under NEPA or the ESA, particularly those on federal land or requiring other federal permits, the inability to timely obtain a final NEPA decision or complete ESA Section 7 consultation can be fatal. This is also true of projects requiring a federal lease or right-of-way approvals.

The 15 July memo presents a serious roadblock for all renewables projects requiring DOI approvals.  Such projects could face indefinite delays or de facto denials through inaction until further notice. 

Secretarial Order 3437, Ending Preferential Treatment for Unreliable, Foreign-Controlled Energy Sources in Department Decision-Making (29 July 2025)²

Secretarial Order 3437, issued on 29 July in direct response to Executive Order 14315, includes the following directives to DOI personnel: 

• Within 30 days, every DOI line office shall prepare a report including a review of all “regulations, guidance, policies, and practices” under its jurisdiction, (2) make determinations on if wind and solar projects are “in the public interest,” and (3) make recommendations toward ending “any preferential treatment toward wind and solar development.”
• Within 45 days, the Assistant Secretary for Land and Minerals Management³ shall prepare a report that makes recommendations regarding: (1) “[t]rends in environmental impacts from onshore and offshore wind projects,” (2) economic costs of “intermittent” electricity, (3) effects from “taxpayer-funded subsidies on artificially propping up the wind industry” and (4) impacts from the wind industry on “military readiness.” 
• Within 45 days, the DOI solicitor will review “any pending litigation” challenging the approval of wind or solar projects in order to identify cases that DOI should request to be remanded to the agency. If remanded the solicitor is directed to “ensure” that “such decisions were not made on … unsupported findings” and “are consistent with … the Department’s interpretation of the best reading of the applicable law.”

The full effect of Secretarial Order 3437 will not be felt until subsequent regulatory actions are taken in furtherance of the reports and recommendations generated by DOI personnel.

Press Release Re: DOI Curbs Preferential Treatment of Wind Energy (29 July 2025)⁴

This press release, issued the same day as Secretarial Order 3437, indicates that DOI will take the following additional actions to implement Executive Order 14315.

• Restoring Congress’s Mandate to Consider All Uses of Our Public Lands and Waters Equally. DOI will consider the withdrawal of “areas onshore with high potential for wind energy development to ensure compliance with legal requirements for multiple use and sustained yield of public lands.” DOI also terminated more than 3.5 million acres of offshore “Wind Energy Areas” designated by the Biden Administration. “Wind Energy Areas” are pre-approved zones where the federal government could auction leases for offshore wind development.⁵  
• Enhancing Stakeholder Engagement for Offshore Wind Development. DOI will “strengthen its guidance to ensure more meaningful consultation regarding offshore wind development, especially with tribes, the fishing industry, and coastal towns.” DOI has not released further information on what this enhanced engagement may entail. 
• Reviewing the Consequences of Developing Wind Turbines on Migratory Birds. DOI will conduct a “careful review” of avian mortality rates associated with wind projects, determine if any takes “qualify as ‘incidental’ takings,” under the MBTA and related laws, and undertake a review of “regulations to determine the appropriate approach to permitting these activities, identifying violations of the applicable statutes, and related penalties.” This announcement suggests that the administration may target wind projects for enforcement actions under the MBTA, which prohibits the take of migratory birds. Notably, on 11 April 2025, the DOI reinstated Solicitor Opinion M-37050 concluding that the MBTA generally does not prohibit “incidental” take (i.e., accidental killing) of migratory birds. In theory, this interpretation reduces the likelihood of enforcement for all activities that may incidentally take migratory birds, including wind projects. However, DOI may now be poised to determine that take of migratory birds by wind projects specifically does not qualify as “incidental,” thereby exposing them to potential civil and criminal enforcement.

Secretarial Order No. 3438, Managing Federal Energy Resources and Protecting the Environment (1 August 2025)⁶ 

Secretarial Order 3438, issued 1 August, requires DOI “to optimize the use of lands under its direct management” through the NEPA review process by considering an “energy projects’ capacity density in its decision-making, including when considering reasonable alternatives to a proposed energy project.” Order 3438 then provides a table of energy production types sorted by “capacity density,” in megawatts per acre, identifying solar and wind as having the lowest “density” among energy generation types. In turn, the order directs the DOI to “only permit those energy projects that are the most appropriate land use when compared to a reasonable range of project alternatives.” In doing so, Order 3438 appears to significantly disadvantage wind and solar projects during the alternatives analysis process under NEPA. At the same time, the order indicates that DOI may have a basis to deny all wind or solar projects on any federal lands, stating that requirements under the Federal Land Policy and Management Act, Outer Continental Shelf Lands Act, and NEPA “give rise to the question on whether the use of Federal lands for any wind and solar projects is consistent with the law, given these projects’ encumbrance on other land uses.”⁷

In its implementation, questions may arise regarding the consistency of this Order with the language of NEPA itself, which indicates that agencies, when performing NEPA analyses, should only consider project alternatives that meet the “purpose and need of the proposal” at issue.⁸  

Memorandum Re: Ensuring Compliance With the Bald and Golden Eagle Protection Act and Executive Order 14315 (4 August 2025)⁹ 

This DOI memo, dated 4 August, calls for an audit of FWS’s eagle take permit program, and raises the specter of increased FWS enforcement activity for unpermitted eagle take by wind projects. Specifically, the memo requires the FWS to take the following actions:

• Refer violations of BGEPA to the DOI solicitor’s office “for its review and, where appropriate, referral to the U.S. Department of Justice for criminal and/or civil penalties[.]”
• Evaluate whether the take of bald and golden eagles pursuant to Eagle Take Permits, including under the general permit for wind projects, is compatible with BGEPA. 
• Request records of all permitted activities conducted by wind projects within seven days.
• Determine whether wind projects have complied with all relevant reporting requirements within 14 days.
• Complete a review of permit applications for wind projects to determine whether they meet applicable regulatory requirements within 30 days. 

Notably, the FWS had already halted the issuance of new Eagle Take Permits to wind projects pursuant to the White House’s 20 January 2025 Memorandum Re: 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.¹⁰ This new DOI memo indicates that FWS will also be scrutinizing the compliance status of wind projects that were issued Eagle Take Permits prior to 20 January 2025. The memo also may be a prelude to the regulatory rollback of FWS’s streamlined general permit option for wind projects, which the Biden administration had adopted in 2024.

Rescission of Renewable Energy Leasing Schedule, 90 Fed. Reg. 37386 (5 August 2025)¹¹

In a direct to final rule published in the federal register on 5 August, BOEM eliminated the requirement to publish a five-year schedule of offshore wind energy lease sales and the requirement to update the lease sale schedule every two years. The rescission of the leasing schedule removes the predictability that helps developers, businesses, and communities plan ahead for potential future projects. 

Press Release Re: Overhaul of Offshore Wind Rules to Prioritize American Energy Security (7 August 2025).¹²

Finally, BOEM and BSEE have announced a full overhaul of all offshore wind implementing regulations under 30 C.F.R. parts 285, 585, and 586. Although a notice of proposed rulemaking has not yet been published, the new regulations are likely to follow many of the trends found throughout these recent policies continuing to decrease, delay, or eliminate offshore wind approvals.

While these Secretarial Orders memoranda, and other policy announcements do not change existing law, they present unique risks to developers of wind and solar projects on both public and private lands. K&L Gates’ Environment, Land, and Natural Resources lawyers are available to help developers, lenders, investors, and other interested parties navigate these developments.