There has been a flurry of activity surrounding the Revolution Wind project off of Rhode Island over the past month. [emphasis, links added]
On August 22, 2025, the Bureau of Ocean Energy Management (BOEM) issued a stop-work order to Ørsted, the project developer, citing “concerns over permitting and national security issues.”
Ørsted responded shortly thereafter with two lawsuits: one filed against BOEM in the U.S. District Court for Rhode Island and another in the U.S. District Court for the District of Columbia.
Both lawsuits requested a preliminary injunction against BOEM and relied on alleged violations of the Administrative Procedure Act (APA). The APA prohibits federal agencies from issuing regulations that are “arbitrary, capricious, or otherwise not in accordance with law.”
On September 22, 2025, the D.C. District Court issued an opinion agreeing with Ørsted that the government’s actions were “arbitrary and capricious” under the APA and granted Ørsted a preliminary injunction, staying the stop-work order.
BOEM will likely appeal this decision to the U.S. Court of Appeals for the District of Columbia, raising interesting questions:
- What if this case should never have been heard by the U.S. District Court in the first place?
- What if that court lacked jurisdiction over the subject matter?
- And what if the court that will hear the appeal—the D.C. Court of Appeals—recently ruled in a similar case that U.S. District Courts do not have jurisdiction over situations like the stop-work order, but rather the U.S. Court of Claims has exclusive jurisdiction over cases against the U.S. government that are “essentially contractual in nature”?
On September 2, 2025, the D.C. Court of Appeals did just that in a case involving the controversial “gold bars” grants, which the Biden Administration awarded to various newly formed NGOs in the final weeks before the Trump Administration took office.
These $20 billion in “gold bars” were held by Citibank as an agent for the federal government. EPA Administrator Lee Zeldin refused to allow Citibank to release the funds.
The NGOs sued in the D.C. District Court, which ruled that the EPA’s action was arbitrary and capricious under the APA and issued a temporary injunction against the government.
The EPA appealed to the D.C. Court of Appeals, and on September 2, 2025, in United Climate Fund v. Citibank, the court reversed the lower court, holding that the D.C. District Court lacked jurisdiction to decide the case because the grants were “essentially contractual in nature”—a contractual money dispute—and therefore subject to the exclusive jurisdiction of the U.S. Court of Claims.
The parallels to Revolution Wind are clear.
The construction of the project is governed by a document called a Construction and Operations Plan (COP). The COP is a contract between the federal government and a vendor, in this case, Ørsted.
It is a standard government contract with, in the words of the Court of Appeals, “offer, acceptance, and consideration”—all hallmarks of a contractual transaction.
Ørsted’s claim against the government is essentially for breach of contract, and the relief Ørsted seeks—specific performance of the contract and monetary damages—is precisely the type of claim the Court of Claims is uniquely equipped to adjudicate.
Most importantly, the Court of Claims is not authorized to issue injunctive relief, only to assess monetary damages.
The D.C. Court of Appeals made it clear that government contractors, like Ørsted, may attempt to frame their claims as falling under the APA to obtain injunctive relief, but their claims are, at their core, routine contract disputes that can only be adjudicated by the Court of Claims.
Moreover, the COP grants the government the authority to make unilateral changes to the contract.
The Ørsted COP (and the COPs of all other offshore wind projects) states that “the Department of the Interior reserves the right to amend these conditions [of the contract] or impose additional conditions authorized by law or regulation on any future approvals of COP revisions.”
Far from breaching the contract, the stop-work order is precisely the kind of “revision” Ørsted agreed the government could impose, as specified in the contract’s language.
The bottom line is this: Ørsted may have a cause of action, but it brought the case to the wrong court. The APA does not apply to its case.
Ørsted is not entitled to injunctive relief, and the Trump Administration did not breach the contract because the stop-work order falls within the range of actions explicitly authorized by the contract’s language.
Given its recent decision in the “gold bars” case, the D.C. Court of Appeals should have no difficulty reaching the same conclusion for Revolution Wind.
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