A coalition of more than a dozen attorneys general is suing the U.S. Department of Transportation for withholding electric vehicle charging infrastructure funding allocated by Congress.
On Wednesday, May 7, Democratic attorneys general in 16 states and the District of Columbia filed a lawsuit against the DOT. The attorneys general claim that the Federal Highway Administration is unlawfully withholding funding for EV charging infrastructure that it is obligated to provide under the Infrastructure Investment and Jobs Act.
At the heart of the controversy is the National Electric Vehicle Infrastructure (NEVI) Formula Program. Part of the 2021 infrastructure bill, the program allocates $5 billion to states to support the deployment of EV charging infrastructure.
On the first day of his second term, President Donald Trump signed an executive order to reverse former President Joe Biden’s “electric-vehicle” mandate. One section of that order directs federal agencies to “immediately pause the disbursement of funds appropriated through the Inflation Reduction Act of 2022 or the Infrastructure Investment and Jobs Act, including but not limited to funds for electric vehicle charging stations made available through the National Electric Vehicle Infrastructure Formula Program.”
In February, FHWA announced that it was rescinding all previous National Electric Vehicle Infrastructure program guidance.
The agency said it plans to issue new guidance sometime in the spring. Until then, no new obligations may occur. States will have to submit new plans for approval, effectively revoking all previously awarded EV charging infrastructure funding.
“This, the Executive Branch cannot do,” the attorneys general state in the lawsuit.
The Democratic attorneys general argue that FHWA has no authority to withdraw or withhold funding that Congress has already allocated. Statutory language of the National Electric Vehicle Infrastructure program spells out exactly how funds are dispersed and the process by which to withdraw that funding. Since the program is formula funding, not discretionary funding, FHWA has no right to withdraw funding outside the parameters set by Congress, the lawsuit claims.
Specifically, the National Electric Vehicle Infrastructure program requires only that states submit an Electric Vehicle Infrastructure Deployment Plan. From there, the DOT allocates EV charging infrastructure funding among states in proportion to the amount they receive through federal-aid apportionments.
The law allows the DOT to withhold or withdraw funding only if a state fails to submit a deployment plan on time or if the department determines that the state has not taken action to carry out its plans. In the latter case, the DOT must notify the state and give it 90 days to rectify any concerns. Even if a state is not compliant after 90 days, the DOT must give the state an additional 60-day notice and opportunity to be heard before withholding funds.
Plaintiffs in the case argue that by suddenly withholding all EV charging infrastructure funding in a single day with no warning or explanation, the DOT violated the law.
“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.”
According to the lawsuit, FHWA allocated more than $3 billion in NEVI funding, including more than $1 billion between the plaintiff states. All of that money has been wiped away at the stroke of a pen.
The lawsuit is being led by California, Colorado and Washington state. Others joining the lawsuit include Arizona, Delaware, the District of Columbia, Hawaii, Illinois, Maryland, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont and Wisconsin. LL
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