DOVER, Del. – A Delaware Superior Court judge has put a pause on the legal battle over Sussex County Council’s decision to block a key electrical substation tied to the US Wind offshore project, citing new state laws that could ultimately override the county’s vote.
In a three-page order issued Monday, Judge Mark H. Conner stayed a petition filed by Renewable Redevelopment, LLC, the company challenging the council’s Dec. 17, 2024, 4-1 vote to deny a conditional use permit for an onshore substation near Millsboro.
The substation is planned next to the decommissioned Indian River Power Plant and would serve as the onshore connection point for US Wind’s Delaware-Maryland offshore wind project, which was previously approved by federal regulators and state environmental officials.
New laws “took direct aim” at county denial
After the parties finished briefing the case in a rare appeal known as a writ of certiorari, state lawmakers passed Senate Bill 159, later amended by Senate Bill 199. Conner wrote that the legislation “took direct aim” at Sussex County Council’s denial and will “essentially overturn the denial” of the substation permit once the law takes effect in early 2026.
SB 159 requires counties to permit certain electrical substations in heavy industrial zones when they serve large renewable energy projects and applies retroactively to qualifying applications, effectively deeming previously denied permits granted if they meet the law’s criteria. SB 199 adjusted the timing, pushing back the implementation date to give the courts and lawmakers additional time to act.
The court asked both sides for additional letter briefs on whether the General Assembly has the authority to pass legislation that overturns a local land-use decision. “Based on the research it appears that the General Assembly possesses such power,” Conner wrote.
Court: Ruling now would be “merely advisory”
Sussex County Council urged the judge to rule on the petition anyway, pointing to potential changes in whether the offshore wind farm ultimately moves forward. But Conner said the court has to decide cases based on “the landscape presently before the Court,” and that issuing a full opinion now would amount to an advisory ruling once the new law is in force.
“If the Court were to opine on the pending Writ of Certiorari, the opinion would be merely advisory in that the Superior Court would not have last authoritative say in the matter,” Conner wrote, noting that courts have the ability to stay cases on their dockets when other actions are likely to affect the litigation.
The order stays the case until at least February 2026, when the court will determine whether the petition has been rendered moot by the new state law.
State Senator: “The result we wanted”
State Sen. Stephanie Hansen, who helped shepherd the offshore wind legislation through the General Assembly, called the Superior Court’s move a key step toward securing long-term energy supplies for Delaware.
“This is the result we wanted, marking a key step in our efforts to increase Delaware’s energy supply and ensure energy reliability for all ratepayers in our state,” Hansen said in a statement Monday.
“After Sussex County Council denied a permit US Wind needed to construct an electric substation for the Delaware-Maryland offshore wind project, it became clear the General Assembly had to step in to ensure the project could move forward,” she continued. “The order makes it clear that the General Assembly does indeed have the power to reverse a local body’s administrative decision.”
Hansen noted that by the time the council voted, US Wind had already secured all of the federal and state approvals it needed for the project and warned that the denial “jeopardized a project that, if built, will introduce an additional 1700 MW of energy into our grid.” She argued that clearing “all state roadblocks to new, renewable energy generation” is essential as Delaware faces supply and demand challenges that have already led to “burdensome rate increases for thousands of Delawareans.”
Local control vs. statewide energy policy
The case has become a flashpoint in a broader fight over local control and the state’s role in siting major energy infrastructure.
Supporters of SB 159 and SB 199 say the bills are necessary to keep large-scale renewable projects on track and to protect ratepayers from future price spikes. Critics, including some Sussex County officials and Republican lawmakers, have argued that the measures undercut local zoning authority and could set a precedent for state intervention in other land-use disputes.
WBOC reached out to Sussex County Council for their response to the court order, but were told they do not comment on matters of pending or active litigation.
For now, Judge Conner’s order leaves the county’s 2024 denial and Renewable Redevelopment’s appeal on hold, while the new laws governing substations for big renewable energy projects move closer to taking effect. Whether the underlying dispute ever gets a full ruling – or is effectively decided by the General Assembly’s action – will likely be decided early next year.