Sussex County and the town of Fenwick Island are suing the state to prevent US Wind's Offshore Project, which would be about nine nautical miles offshore from the Delmarva Peninsula.
The case centers on Senate Bill 159, which passed last year. It retroactively overrides the Sussex County Council’s denial of US Wind’s zoning request to develop a substation at a former power plant to bring energy generated by the project onshore.
Attorney Jane Brady filed the lawsuit for Sussex County last month. She worked as Delaware’s attorney general from 1995 to 2005.
Brady said the complaint, filed in December, argues a few issues with SB 159: that it violates the county government’s “home rule” in zoning matters, only affects Sussex County, and disregards separation of powers in government.
During testimony for SB 159 last year, Brady said it was clear the bill targeted Sussex County’s decision to deny US Wind’s zoning request.
“That made it more clear that this was not a public policy matter, but rather a disagreement with a particular decision made by the county council,” she said. “...When the state interferes because they disagree with a particular decision, not because they're promoting a public policy that's important for the state and the General Assembly, then that should be struck down.”
US Wind previously appealed Sussex County’s zoning denial in Delaware’s Superior Court. To give the court time to weigh in, lawmakers delayed implementing SB 159’s until the end of January2026.
But Judge Mark H. Conner said in December that because of SB 159 his court’s opinion would be “merely advisory”, and he put an indefinite pause on the appeal proceedings.
Senate Majority Leader Bryan Townsend, a co-sponsor of SB 159, said Conner’s action validates SB 159’s authority.
Townsend called the Sussex County Council’s zoning denial to US Wind a political statement. Four of the council’s five members are republican.
“The minute that Donald Trump says he doesn’t like wind power, Sussex County Council asks how high they should jump,” Townsend said.
US Wind’s contract is with Maryland, which would receive energy generated by the project.
But Maryland and Delaware are both part of the PJM power grid, Townsend said. And Delaware needs more energy on the grid, as rates are expected to climb for users this year.
“Any state, any county, any town that can play a role in bringing energy onto the grid, especially clean energy, absolutely to take that role seriously,” he said.
Last year, DNREC and then-governor John Carney announced an agreement with US Wind for the state’s involvement with the project. It included a lease for underground access toDelaware Seashore State Parks to lay down power transmission cables. The state expects lease payments from US Wind to total more than $12 million over 25 years.
The agreement also promises renewable energy credits and capital investment from the company in projects at Delaware’s parks.
The complaint filed by Sussex County and the Town of Fenwick Island last month also named Governor Matt Meyer, who signed SB 159 into law. Meyer’s office said it could not comment on pending litigation.
Brady filed the complaint with Delaware’s Court of Chancery, which she said can provide injunctive relief, meaning SB 159 wouldn't be enforced.
Brady's asked for expedited scheduling for the complaint, she said. If that happens, it will be resolved in a couple of months.
The project’s development faces other hurdles outside of Delaware, including potential federal challenges to its construction permits.