A federal government watchdog agency has determined that the Trump administration’s funding freeze for electric vehicle charging infrastructure is unlawful, but the White House is pushing back.
A Government Accountability Office report found that the Department of Transportation cannot claw back electric vehicle charging infrastructure as it did in February. Although the federal government shows no signs of reinstating that funding, a federal lawsuit may compel it to do so.
At the center of the controversy is the National Electric Vehicle Infrastructure (NEVI) Formula Program. Authorized by Congress through the 2021 Infrastructure Investment and Jobs Act (IIJA), the program allocated $5 billion to states to support the deployment of electric vehicle charging infrastructure.
For states to tap into NEVI funding, they must submit an Electric Vehicle Infrastructure Deployment Plan. The DOT allocates funding among the states in proportion to the amount they receive through federal-aid apportionments. Although all 50 states and Washington, D.C., have submitted their plans, only a small portion of the $5 billion has been disbursed as planning for specific projects is pending.
In February, the Federal Highway Administration rescinded guidance for the NEVI program and suspended approval of all state plans, effectively pulling electric vehicle charging infrastructure funding. Per FHWA’s memorandum, states will be required to submit new deployment plans once new guidance is issued before receiving funding for new obligations. Funding for existing obligations will continue.
Democrats in Congress turned to the GAO to determine whether that move was legal. The agency found that it is not.
NEVI funds are a statutory mandate
The GAO determined that FHWA’s February memo violates the Impoundment Control Act, which dictates when and how a president can delay or permanently cancel Congressionally approved funding.
Congress holds the power of the purse. The Impoundment Control Act ensures that legislation passed by Congress and signed into law by the president is faithfully executed. It allows the president to withhold or rescind funding in limited circumstances.
President Donald Trump could withhold electric vehicle charging infrastructure funding if he sends a special message to Congress that includes detailed and specific reasoning to justify the move. That withholding is good only through the end of the current fiscal year.
However, a “fourth disclaimer” in the Impoundment Control Act prohibits the president from withholding funding for programs where there is a mandate to spend. This would include funding for electric vehicle charging infrastructure provided by NEVI.
“We conclude that the NEVI Formula Program is covered by the fourth disclaimer,” the GAO report states. “Therefore, DOT is not authorized to withhold these funds from expenditure, and DOT must continue to carry out the statutory requirements of the program. While DOT cannot withhold these funds under the (Impoundment Control Act), DOT could propose funds for rescission or otherwise propose legislation to make changes to the NEVI Formula Program for consideration by Congress.”
According to the GAO’s report, the DOT is legally obligated to disburse funds once they become available. In this case, Congress allocated $615 million in fiscal year 2022 and $885 million for the next three years. Therefore, the DOT is obligated to disburse more than $3 billion of NEVI funds.
The DOT has claimed that the obligation begins once the state enters into individual project agreements. Based on that standard, it is only obligated to pay out just over $526 million of the nearly $3.3 billion.
But the GAO could find nowhere in the relevant statute a provision requiring DOT approval of a state’s deployment plan. The infrastructure bill states that the DOT can dictate only the information included in the plan and the deadline. Once those requirements are met, the states are entitled to NEVI funding. Essentially, compliance is within the state’s control, not the DOT’s.
White House rejects GAO report
Despite the report and a related lawsuit, the federal government appears to be proceeding with the withholding of funding for electric vehicle charging infrastructure.
Ranking Member of the House Transportation and Infrastructure Committee Rick Larsen, D-Wash., applauded the GAO’s report.
“News flash for the Trump Administration: you can’t simply ignore the law when you disagree with it,” Larsen said in a statement. “Congress passed the NEVI program, and the Department of Transportation must implement it by releasing the funds to states, period.”
However, the White House is not backing down.
Mark Paoletta, general counsel for the Office of Management and Budget, rejected the findings in a letter sent to the GAO.
Paoletta criticized the GAO for bombarding the OMB with requests that are “voluminous, burdensome and inappropriately invasive.”
“Not only does GAO exceed its statutory authority when it unhelpfully injects itself into an agency’s implementation of a program, GAO also hampers the executive branch’s ability to carry out its statutory mandates,” Paoletta stated.
In the report, GAO pointed out it takes no position in any given policy.
“GAO’s institutional role is to support the Congress, including in Congress’s exercise of its constitutional power of the purse,” the report states. “This includes GAO’s functions under the ICA, such as reviewing special messages and reporting impoundments the president has not reported. GAO’s role is procedural – to help ensure compliance with the ICA and appropriations law – and is not to be interpreted as taking a position on the underlying policies entailed.”
In May, Democratic attorneys general in 16 states and the District of Columbia filed a lawsuit against the DOT, claiming it is unlawfully withholding electric vehicle charging infrastructure funding.
“In short, the president directed agencies to withhold Congressionally appropriated funds, including NEVI Formula Program funds, as a tool to terminate programs the president dislikes,” the lawsuit states. “But agencies have no authority to rescind or revise statutes or to withhold funds duly appropriated by Congress based on the president’s disagreement with the policies and priorities of Congress.” LL
Credit: Source link
