Delaware judge pauses US Wind appeal in wake of new law

A compromise struck in June between Delaware lawmakers is now poised to end litigation challenging a Sussex County decision to block a controversial wind farm planned just off its shores.

The development follows a complex series of events that began a year ago when Sussex County decided to not approve a plan for a land-based substation that the 121-turbine wind farm needed to operate. 

Not only did the wind farm developer – US Wind – appeal the decision to a Delaware court, but its Democratic supporters in the state legislature later introduced legislation to override and reverse the Sussex County substation denial.  

The legislation led to a late-night standoff during the final hours of the legislative session that had Republicans threatening to block passage of Delaware’s capital budget. Ultimately, they  relented after Democrats agreed to postpone its effective date until early 2026.

On Monday, Delaware Superior Court Judge Mark Conner decided to pause the appeal in advance of the January effective date for the new law.

Conner explicitly pointed to the new law when ordering the pause.

A spokesperson for Sussex County declined to comment, noting the litigation is still active.

A spokesperson for US Wind said the company supports the decision.

“We are pleased with the court’s decision,” said Nancy Sopko, US Wind’s vice president of external affairs. “We remain committed to delivering this critical energy project to the region.”

Federal challenges remain

While Sussex County’s challenge to the wind farm may soon be resolved, one federal lawsuit still threatens to upend the wind farm project. Last October, Ocean City, Md., officials sued federal regulators, challenging the validity of permit approvals they awarded to US Wind.

Months later when President Donald Trump took office, lawyers for the federal government requested that a judge allow those permits to be sent back for a “voluntary remand” – which would send the approvals back to an administrative agency for reassessment.

A ruling on that request is pending.

Should that remand go through, it could render Ocean City’s claims moot, as the permits being challenged would likely be pulled. Still, it is not immediately clear how a remand would impact a counterclaim filed by the company against the Trump administration.

US Wind has claimed in court filings that should the administration remand those permits, it would bankrupt the company and kill the project. Delaware’s top law enforcement official filed a motion in the case in support of US Wind. 

Delaware Attorney General Kathy Jennings decried efforts by the Trump administration to halt the project through “unilateral executive action.” Since the first day of his second term, Trump has taken aim at multiple wind projects across the country, freezing production along coastlines.

“This is no time to move the goal posts,” Jennings wrote. “It is too late for that, and the President lacks the authority to rescind or stall a project approved after over a decade of work and review and compliance.”

The majority of her brief focused on the benefits of the project in Delaware, specifically US Wind paying $200 million to upgrade the regional power grid. Additionally, Jennings pointed to a US Wind estimate that supply provided by the project would save Delaware $253 million in capacity and energy prices.