A federal judge has ordered the Department of Transportation to unfreeze electric vehicle (EV) charging funding, another funding-related courtroom loss for the Trump administration.
On Day One of his return to the White House, President Donald Trump signed an executive order to end what he called the EV mandate. Part of the order was to halt the National Electric Vehicle Infrastructure (NEVI) funding program.
In February, the Federal Highway Administration did exactly that.
Included in the 2021 Infrastructure Investment and Jobs Act (IIJA), NEVI dedicates $5 billion to states for EV charging infrastructure. FHWA Associate Administrator Emily Biondi informed states that NEVI funding would be frozen until the agency updated its guidance.
Known as the Biondi letter, states were told that no new EV charging funding obligations would be granted. Effectively, the NEVI program was put on indefinite pause.
A coalition of 20 mostly Democratic states and the District of Columbia sued the DOT. Last June, Judge Tana Lin from the Western District of Washington ordered a preliminary injunction against the DOT, effectively unfreezing EV charging funding for those states. On Jan. 23, Judge Lin made it official.
What is NEVI funding?
At the center of the lawsuit is EV charging funding authorized by Congress.
NEVI is a formula funding program included in the Bipartisan Infrastructure Law, or IIJA. FHWA must distribute the funds using a non-discretionary formula explicitly explained in statute. For NEVI, a state’s EV charging funding matches its federal highway funding share. Funding is legally obligated each year.
FHWA updates guidance before each funding round. To tap into EV charging funding, states must submit a detailed plan showing how the money will be used. As long as the plan meets NEVI requirements, FHWA must approve it and allocate funds.
There are two paths for the federal government to withhold funds: a state fails to submit a plan or if a state fails to act on an approved plan. If the latter, the DOT has to notify and consult with the state. From there, the state has 90 days to address concerns. After that, the DOT must give a 60-day notice before withholding funds, allowing the state to appeal.
Did DOT follow procedure?
According to a coalition of states and backed by Judge Lin, the DOT did not follow proper procedure in withholding NEVI funding.
It all comes down to the Biondi letter. By freezing EV charging funding until new guidance was issued and by throwing out already submitted plans, Judge Lin ruled that FHWA violated the rules governing funding set out in the IIJA.
As explained above, IIJA requires FHWA to give states at least 90 days to address any issues with EV charging funding. That is not what the Biondi letter did.
“… DOT and (FHWA) instead yanked the NEVI Formula Program’s cord out of the outlet, calling for an instantaneous and sudden cessation of the program, at least until it could be restarted under the auspices of the new administration,” Lin states in the order.
Damage already done
Although the court found the EV charging funding freeze was unlawful, the harm inflicted may be difficult to reverse.
The court’s order invalidates the Biondi letter. Effectively, that restores the states’ plans that were approved prior to the letter. Furthermore, the DOT is not allowed to withhold EV charging funds under NEVI without following the procedures detailed in IIJA.
However, the federal government may have already caused damage intended by the Biondi letter.
“The consequences and effects of the funding freeze still linger: Significantly, the original, already-approved plans are still rescinded, and many of the projects that those plans contemplated have been necessarily abandoned or significantly changed,” Judge Lin explains in the order.
For example, California was denied more than $300,000 for a Tesla charging station that was already underway. Delaware ended up short nearly $50,000 for an FHWA-approved NEVI project, forcing the state to divert that money from another source.
According to the lawsuit, about $2.74 billion of more than $3 billion available at the time was withheld.
Losing battles
The EV charging funding legal battle was just the latest court loss for the DOT.
A few weeks before losing the NEVI case, the DOT abandoned its efforts to tie transportation funding to immigration policies. Last year, Chief Judge John McConnell Jr. of the Rhode Island federal district court ruled that action as unlawful.
On Jan. 5, the DOT filed an appeal. Just one week later, the department jumped ship and filed a motion to voluntarily dismiss the appeal.
In New York, the DOT has been fighting against congestion pricing in federal courts. Last May, Judge Lewis J. Liman issued a temporary restraining order preventing the DOT from pulling funding from New York if it did not end congestion pricing. A final decision is expected shortly after oral arguments on Jan. 28. LL
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