{"database": "press", "table": "releases", "rows": [["https://www.vanhollen.senate.gov/news/press-releases/van-hollen-whitehouse-markey-dingell-and-over-three-dozen-members-file-amicus-brief-urging-reversal-of-dc-appeals-court-panel-decision-allowing-clawback-of-greenhouse-gas-reduction-fund-grants", "Van Hollen, Whitehouse, Markey, Dingell & Over Three Dozen Members File Amicus Brief Urging Reversal of D.C. Appeals Court Panel Decision Allowing Clawback of Greenhouse Gas Reduction Fund Grants", "2025-09-19", "2025", "2025-09", "Democrat", "Senate", "MD", "Chris Van Hollen", "V000128", "www.vanhollen.senate.gov", "vanhollen", "https://www.vanhollen.senate.gov/news/press-releases", "scraper", "U.S. Senators Chris Van Hollen (D-Md.), Senate Environment and Public Works Committee Ranking Member Sheldon Whitehouse (D-R.I.), U.S. Senator Edward J. Markey (D-Mass.), U.S. Representative Debbie Dingell (D-Mich.), and 36 of their Congressional colleagues have submitted an amicus brief to the United States Court of Appeals for the District of Columbia in the case of Climate United Fund, et al. v. Citibank, N.A. et al, urging the reinstatement of Greenhouse Gas Reduction Fund (GGRF) grants.\n\nThe lawmakers pressed the Court to grant a rehearing en banc, or hearing of the full active bench, and to overturn the erroneous ruling issued earlier this month by a three-judge panel of the Court. That poorly reasoned ruling allows the Environmental Protection Agency (EPA) to proceed with its efforts to illegally claw back GGRF awards that were appropriated by Congress and fully disbursed into private bank accounts. The GGRF is a $27 billion national climate financing network that facilitates investments in affordable clean energy deployment to spur economic development, lower energy costs, and reduce pollution. It was passed into law in the Inflation Reduction Act (IRA) and is based on the National Climate Bank Act, legislation authored by Senators Van Hollen and Ed Markey (D-Mass.) and Congresswoman Debbie Dingell (D-Mich.).\n\nIn the brief, the lawmakers argue that the D.C. Circuit panel\u2019s two-judge majority \u2013 both Trump appointees \u2013 misapplied precedent and ignored the district court\u2019s well-supported factual findings in a results-oriented bid to greenlight EPA\u2019s unlawful efforts to claw back GGRF funds. Given that Congress mandated that the GGRF funds be spent as appropriated, and the funds were already distributed to private bank accounts, EPA\u2019s cancellation of the program is clear executive overreach. The lawmakers stress that letting this decision stand jeopardizes Constitutional protections of the separation of powers, and would amount to a transfer of Congress\u2019 power of the purse to the executive branch.\n\nThe lawmakers outlined the thorough, transparent process by which the EPA under the Biden Administration awarded GGRF funds, writing, \u201cCongress passed the IRA in 2022, which authorized and appropriated nearly $20 billion for the GGRF programs at issue here: the National Clean Investment Fund (NCIF) and the Clean Communities Investment Accelerator (CCIA). Congress directed that these funds must be granted to specialized nonprofit financial organizations for projects that \u2018reduce or avoid greenhouse gas emissions and other forms of air pollution.\u2019 Congress required that the EPA obligate GGRF funds by September 30, 2024. EPA met the deadline and entered into Financial Agent Agreements to \u2018[convey] to the grantees legal title to the award funds\u2019 while \u2018affording EPA greater oversight of the grantees\u2019 use of the funds than it would have had under the default disbursement system.\u2019\u201d\n\n\u201cAfter President Trump took office, the new EPA Administrator and other officials began to make outrageous attacks on grantees \u2013 including attempts to fabricate criminal fraud allegations. EPA\u2019s subsequent blanket termination of the NCIF and the CCIA programs willfully ignores Congressional spending power and puts $20 billion of community and clean energy investments at risk. This is not a prosaic contract dispute; this is a constitutional power grab,\u201d they argued.\n\nThe lawmakers pointed out that the panel Dalton v. Specter, which disallows judicial review in cases where a statute commits decision-making to the discretion of the President. They argued that Dalton does not apply in this case, writing, \u201cbut no statute gave the President, let alone EPA, discretion to terminate all previously obligated and disbursed funds allocated by Congress for two GGRF programs. Plaintiffs\u2019 claims here do not depend on termination of a single contract, withholding of a disputed grant amount, or even administrative interpretation of a statutory provision. Finally, in sharp contrast with the discretion afforded to the President [by the] \u2026 statute at issue in Dalton, Congress could not have been clearer that the GGRF was enacted to \u2018enable low-income and disadvantaged communities to deploy or benefit from zero-emission technologies,\u2019 and that EPA had to obligate all grant funding by September 30, 2024. [\u2026] Dalton cannot sanction EPA nullifying clear statutory directives by terminating these programs.\u201d\n\nThey also criticize the panel for dismissing without basis key factual findings by the district court, writing, \u201cThe district court did not, as the panel writes, \u2018simply declare\u2019 that EPA was shutting down the GGRF program. [\u2026] Rather, the district court made well-supported findings of fact that EPA\u2019s out-of-court words and actions contradicted the Agency\u2019s representations in the litigation that the GGRF program would continue following termination of Plaintiffs\u2019 grants.\u201d\n\n\u201cIf the panel decision stands, it would set precedent that any agency can simply unwind any Congressionally-mandated program, unilaterally ending contracts without process, seizing money in private bank accounts, and clawing back already-disbursed funds. Congress\u2019s exclusive power of the purse would be in name only. This Court should grant rehearing en banc,\u201d the Senators concluded.\n\nJoining Senators Van Hollen, Whitehouse, Markey, and Representative Dingell in signing this amicus brief are Senators Brian Schatz (D-Hawaii), Richard Blumenthal (D-Conn.), Bernie Sanders (I-Vt.), Mazie K. Hirono (D-Hawaii), Jeff Merkley (D-Ore.), and Tina Smith (D-Minn.) as well as U.S. Representatives Paul Tonko (D-N.Y.), Shri Thanedar (D-Mich.), Greg Landsman (D-Ohio), Nanette Barrag\u00e1n (D-Calif.), Lloyd Doggett (D-Texas), Julia Brownley (D-Calif.), Bonnie Watson Coleman (D-N.J.), Mike Quigley (D-Ill.), Jared Huffman (D-Calif.), Jan Schakowsky (D-Ill.), Mary Gay Scanlon (D-Pa.), Alexandria Ocasio-Cortez (D-N.Y.), Sarah Elfreth (D-Md.), Frank Pallone (D-N.J.), Kevin Mullin (D-Calif.), Jamie Raskin (D-Md.), Sean Casten (D-Ill.), Suzanne Bonamici (D-Ore.), Mike Levin (D-Calif.), Troy Carter (D-La.), Yvette Clarke (D-N.Y.), Jennifer McClellan (D-Va.), Darren Soto (D-Fla.), Diana DeGette (D-Colo.), Robert Menendez (D-N.J.), Kathy Castor (D-Fla.), Mark Takano (D-Calif.), Bobby Scott (D-Va.), George Latimer (D-N.Y.), and Doris Matsui (D-Calif.).\n\nText of the lawmakers\u2019 argument is below, and the full brief can be viewed here.\n\nINTEREST OF AMICI CURIAE AND RULE 29(a)(4)(E) STATEMENT\n\nAmici curiae include the original champions of Green Bank legislation and its passage as the GGRF; the Ranking Members of the Senate and House committees with jurisdiction over the GGRF (U.S. Senate Committee on Environment and Public Works, U.S. House Committee on Energy and Commerce); the Ranking Member of the Senate Appropriations Committee subcommittee with jurisdiction over GGRF funding; and other Members of Congress with a particularized interest in preserving the separation of powers and ensuring that Congress\u2019s plenary power over appropriations and spending is protected.\n\nINTRODUCTION AND SUMMARY OF ARGUMENT\n\nCongress passed the IRA in 2022, which authorized and appropriated nearly $20 billion for the GGRF programs at issue here: the National Clean Investment Fund (NCIF) and the Clean Communities Investment Accelerator (CCIA). Congress directed that these funds must be granted to specialized nonprofit financial organizations for projects that \u201creduce or avoid greenhouse gas emissions and other forms of air pollution.\u201d Congress required that the EPA obligate GGRF funds by September 30, 2024. EPA met the deadline and entered into Financial Agent Agreements to \u201c[convey] to the grantees legal title to the award funds\u201d while \u201caffording EPA greater oversight of the grantees\u2019 use of the funds than it would have had under the default disbursement system.\u201d Climate United Fund v. Citibank, 2025 WL 2502881 at *16 (D.C. Cir. Sept 2, 2025) (Pillard, J. dissenting) (citing Bafford Decl. \u00b6 33 (J.A. 372)).\n\nAfter President Trump took office, the new EPA Administrator and other officials began to make outrageous attacks on grantees \u2013 including attempts to fabricate criminal fraud allegations. EPA\u2019s subsequent blanket termination of the NCIF and the CCIA programs willfully ignores Congressional spending power and puts $20 billion of community and clean energy investments at risk. This is not a prosaic contract dispute; this is a constitutional power grab.\n\nThe panel errs in finding that Plaintiffs\u2019 appropriations claims are prohibited by Dalton v. Specter, 511 U.S. 462 (1994). An agency\u2019s failure to spend congressionally appropriated funds is illegal under In re Aiken County, 725 F.3d 255 (D.C. Cir. 2013). Yet the panel wrongly allows EPA to seize GGRF funds that were appropriated by Congress and fully disbursed into private bank accounts. Unlike in Dalton, which was not an appropriations case, here Congress mandated how, by when, and to whom appropriated funds should be granted. It is black letter law that Congress enjoys plenary appropriations power. As held by the Supreme Court in Clinton v. City of New York, 524 U.S. 417, 464 (1998), the executive branch does not have the power to repeal a statute by withholding its funding. To hold otherwise would give the executive branch free rein to ignore Congressional appropriations decisions. This Court should grant rehearing, to consider the constitutional issues raised by EPA\u2019s misdeeds.\n\nARGUMENT\n\nEPA\u2019s Actions\n\nViolate Congress\u2019s Appropriations Power.\n\nThe panel decision acknowledges that EPA terminated the full amount of all grants made under two GGRF grant programs, but discards the district court record and precedential case law to conclude that the grantees\u2019 challenge \u201cis not a constitutional claim at all\u201d and is only a challenge to the IRA. Climate United, 2025 WL 2502881 at *10. This is exactly backwards: the existence of a potential statutory violation does not displace a constitutional claim, and the dispositive question is whether the Administration has exceeded its constitutional powers. Here, it has: Congress required EPA to spend the GGRF funds before September 30, 2024, and EPA would have been prohibited from refusing to do so. EPA\u2019s efforts to terminate funding after disbursement are equally impermissible. Nor was there any basis to overturn the district court\u2019s thorough analysis concluding that EPA terminated the grant programs wholesale.\n\nA. The Panel Erred in Rejecting the Constitutional Claim.\n\nThe Court should grant en banc review and not allow an overly expansive interpretation of Dalton to nullify Congressional spending power. By stretching Dalton to reject Plaintiffs\u2019 separation of powers claims, and shoehorning Plaintiffs\u2019 remaining claims into contractual disputes under the ill-fitting Tucker Act, the panel swept constitutional questions under the rug.\n\nThis case concerns EPA\u2019s unilateral termination of all grants under two GGRF programs (in addition to at least eight other programs beyond this case, see infra note 4), after all the funds had been dispersed to private bank accounts. These brazen actions usurped power assigned to Congress by the Constitution. Under our Constitution, the power of the purse belongs to Congress, not the President or his agents. U.S. Const. art. I, \u00a7 9, cl. 7 (Appropriations Clause); U.S. Const. art. I, \u00a7 8, cl. 1 (Spending Clause). Congress may employ that power \u201cto further broad policy objectives\u201d and as the dissent points out, \u201cneither the President nor his subordinate executive agencies may decline to follow a statutory mandate or prohibit spending because of policy objections.\u201d Climate United, 2025 WL 2502881 at *14 (Pillard, J., dissenting).\n\nDalton simply does not apply here. That case stands for the limited proposition that \u201c[w]here a statute . . . commits decision-making to the discretion of the President, judicial review of the President\u2019s decision is not available.\u201d 511 U.S. at 477. But no statute gave the President, let alone EPA, discretion to terminate all previously obligated and disbursed funds allocated by Congress for two GGRF programs. Plaintiffs\u2019 claims here do not depend on termination of a single contract, withholding of a disputed grant amount, or even administrative interpretation of a statutory provision. Finally, in sharp contrast with the discretion afforded to the President under the military base closure statute at issue in Dalton, Congress could not have been clearer that the GGRF was enacted to \u201cenable low-income and disadvantaged communities to deploy or benefit from zero-emission technologies,\u201d and that EPA had to obligate all grant funding by September 30, 2024. 42 U.S.C. \u00a7 7434. Dalton cannot sanction EPA nullifying clear statutory directives by terminating these programs.\n\nNor can the panel\u2019s expansion of Dalton be reconciled with Supreme Court precedent that prohibits the executive from unilaterally refusing to spend appropriated funds \u2013 let alone claw back actually disbursed funds. In Clinton, the Supreme Court struck down the line item veto as unconstitutional, because Article I, \u00a7 7 of the Constitution makes clear that the President cannot cancel a law without Congress\u2019s express authorization. Clinton, 524 U.S. at 446. Decided after Dalton, the Court\u2019s opinion in Clinton specifically rejected the argument that cancellations of Congressionally appropriated programs were \u201cmerely exercises of discretionary authority granted to the President.\u201d Id. at 442. Instead, the Supreme Court reaffirmed the bedrock principle that the Constitution does not permit \u201cthe President to enact, to amend, or to repeal statutes.\u201d Id. at 438. The panel\u2019s broad recharacterization of Dalton into the appropriations context effectively gives an unconstitutional line item veto to this Administration.\n\nIt is similarly not possible to square the panel\u2019s reading of Dalton with the Supreme Court\u2019s ruling in Train v. New York, 420 U.S. 35, 42-47 (1975). There, the Supreme Court held that language in the Federal Water Pollution Control Act that the EPA \u201cshall\u201d allot funds by a date certain meant what it said. Train, 420 U.S. at 42-47. At the direction of President Nixon, the EPA Administrator allotted less than what the Act specified. Id. at 40. The Supreme Court ruled that the Administrator could not do so. Inclusion of the phrase \u201cnot to exceed\u201d did not provide discretion to the EPA to refuse to spend the funds; it only preserved the possibility that approved applications for funds already allotted \u201cwould not total the maximum amount authorized to be appropriated.\u201d Id. at 44. Here, the statutory directive is even clearer: Congress appropriated specific sums to carry out the GGRF programs, to be spent by a specific date, and to be provided to specified eligible entities.\n\nMeanwhile, on the correct factual record, Aiken County is indistinguishable. See Climate United, 2025 WL 2502881 at *29 (\u201c[A]bsent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals.\u201d) (Pillard, J., dissenting, quotation and citation omitted). Under Aiken County, an agency may not refuse to spend appropriated funds in violation of a statutory obligation. Aiken Cnty., 725 F.3d at 257-69. As then-Judge Kavanaugh wrote: \u201cwhere previously appropriated money is available for an agency to perform a statutorily mandated activity, we see no basis for a court to excuse the agency from that statutory mandate.\u201d Aiken Cnty., 725 F.3d at 260. The panel tries to avoid this precedent by discarding the district court\u2019s well-supported findings and lending undue credibility to EPA\u2019s inconsistent justifications for terminating the grants. Climate United, 2025 WL 2502881 at *11. As set out below, the district court\u2019s factual conclusion that EPA had no intention of re-awarding the GGRF money was amply supported; thus, Aiken County should control. The district court correctly found that the Plaintiffs demonstrated a likelihood of success on this claim.\n\nB. The Panel Wrongly Substituted Its Own Inferences and Factfinding for That of District Court\n\nThe panel avoids the clear dictates of Clinton and Aiken County only by rewriting the factual record in the case and overturning the district court\u2019s factual findings. Climate United, 2025 WL 2502881 at *11. But this turns logic upside down, dispensing with the district court\u2019s detailed factfinding while affording the government a presumption of regularity that strains credulity. Where \u201cthe district court\u2019s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.\u201d Anderson v. City of Bessemer, 470 U.S. 564, 573-74 (1985).\n\nThe district court did not, as the panel writes, \u201csimply declare\u201d that EPA was shutting down the GGRF program. Climate United, 2025 WL 2502881 at *11. Rather, the district court made well-supported findings of fact that EPA\u2019s out-of-court words and actions contradicted the Agency\u2019s representations in the litigation that the GGRF program would continue following termination of Plaintiffs\u2019 grants. Specifically:\n\nThe district court found that EPA initially claimed fraud and conflicts of interest in grant awards and enlisted the FBI to pressure Citibank to freeze funds, but then admitted the terminations were \u201cbased on reasons of policy\u201d when it could produce no evidence of fraud. Climate United, 778 F.Supp.3d at 114-115.\n\nThe district court found that EPA served Plaintiffs with identical information requests on the GGRF program\u2019s oversight controls then terminated all the grants prior to receiving responses. Id. at 114. From this action, the district court reasonably inferred that the government\u2019s reference to lack of oversight was a pretext.\n\nThe district court found that EPA refused to provide any rationale for why it terminated the grants, why cancellation was necessary when EPA had begun to examine the grant programs to add oversight mechanisms, or \u201cwhy it needed to cancel every single grant to review some aspects of the GGRF program . . . .\u201d Id.\n\nThe district court found that \u201c[t]hroughout February and March 2025, Administrator Zeldin began to publicly express his desire to take control of the funds disbursed under the Inflation Reduction Act (IRA) and to terminate the GGRF grants . . . and that EPA is \u2018not going to rest\u2019 until it recovered the grant funds.\u201d Id. at 102. The district court was not \u201cclearly erroneous\u201d in concluding that these public statements by the EPA Administrator, alongside an executive order directing agencies to halt all IRA disbursements to \u201cterminate the Green New Deal,\u201d betrayed the actual, unlawful reason for the grant terminations and the intent to end the program.\n\nThe panel erred further by faulting the district court for \u201cignor[ing]\u201d the \u201cgold bars\u201d video. Climate United, 2025 WL 2502881 at *11 n.12. But of course the district court gave no evidentiary value to that video: it is patently irrelevant to the GGRF. The video concerns efforts to award different grant money after the November 2024 election. All the GGRF grants were awarded by September \u2013 months before.\n\nThe panel also erred in holding that the district court should have afforded EPA\u2019s unsupported and inconsistent representations a presumption of regularity. Climate United, 2025 WL 2502881 at *11. The \u201cpresumption of regularity\u201d is a limited, rebuttable presumption that applies to authenticity of government documents and official acts. Latif v. Obama, 677 F.3d 1175, 1178 (D.C. Cir. 2011). The district court did not refuse to consider EPA\u2019s evidence or account of its actions but rather determined \u2013 after significant factual analysis \u2013 that EPA\u2019s representations were unsupported by the broader factual record. The district court found that EPA first sought to terminate grant funding through a criminal investigation, and when that failed, shifted its position to claim that the terminations were based on changed agency priorities. Climate United, 778 F.Supp.3d at 115. Although EPA claimed it conducted an \u201cindividualized assessment\u201d of the grants, the district court found that EPA had not provided any rationale for the terminations. Id. at 115-116. The district court, as the finder of fact, concluded that EPA\u2019s \u201cpublic statements contradict its representations here regarding the future of the program.\u201d Id. at 116. These factual conclusions were firmly grounded in the record and should not have been disturbed by the panel.\n\nCONCLUSION\n\nThe stakes presented by this power grab are high. In the NCIF and CCIA programs under the GGRF, Congress directed EPA to grant nearly $20 billion to nonprofit financial organizations for the purpose of reducing pollution and energy costs for low-income and disadvantaged communities. There is considerable reliance on those grants, which were disbursed to private accounts nearly a year ago.\n\nIf the panel decision stands, it would set precedent that any agency can simply unwind any Congressionally-mandated program, unilaterally ending contracts without process, seizing money in private bank accounts, and clawing back already-disbursed funds. 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