ICYMI: Politico: Judge slams EPA’s climate grant cancellations: ‘You have to have some kind of evidence’

Washington, D.C. — On Wednesday, a federal judge excoriated the Trump administration over their lawless effort to kill $20 billion in funding appropriated by Congress to bring down people’s energy costs, expressing exasperation over their lack of evidence to support claims of wrongdoing. The rebuke comes as the administration has weaponized the FBI for a sham investigation meant to serve as legal justification for their outrageous power grab, which threatens to kill good jobs and cost savings for working families.

POLITICO: Judge slams EPA’s climate grant cancellations: ‘You have to have some kind of evidence’

A federal judge Wednesday lambasted the Environmental Protection Agency’s cancellation of $20 billion in climate grants after the Trump administration was unable to offer any evidence of wrongdoing.

But it was unclear whether the judge would take immediate action to offer relief to the grant recipients who warn they will have to start laying off workers and defaulting on financial agreements by the end of the week.

EPA Administrator Lee Zeldin on Tuesday night terminated the Greenhouse Gas Reduction Fund grants, including a $7 billion award to Climate United Fund. That group had sued to access those funds, a request that became more complicated after EPA terminated the grant less than 24 hours before a hearing.

“Can you proffer any evidence that [the grant] was illegal, or evidence of abuse or fraud or bribery — that any of that was improperly or unlawfully done, other than the fact that Mr. Zeldin doesn’t like it?” asked Judge Tanya Chutkan of the U.S. District Court for the District of Columbia.

Marc Sacks, a Justice Department attorney representing EPA, repeatedly pointed to the reasoning the agency used when notifying Climate United and other groups, stating that “the determination is based on the information contained in the termination letter.”

“That’s pretty circular,” replied the skeptical Chutkan, an Obama appointee.

She asked whether EPA had alleged that Climate United had violated two federal regulations requiring it to comply with the terms and conditions of the grant.

“I think the agency cited both of those regulations within their termination letter,” Sacks replied.

“I can cite cases all day long, but you have to have some kind of evidence or proffer to back it up,” Chutkan replied.

The hearing was initially scheduled to consider Climate United’s request for a judicial order turning the funding taps back on after Citibank, which holds the money, closed off access in mid-February. In court documents filed earlier Wednesday, Citibank revealed it had done so at the recommendation of the FBI, and that EPA earlier this week turned that into an official order.

But the case was turned upside down when Zeldin on Tuesday night announced he was terminating the entire grant, as well as seven others.

Adam Unikowsky, an attorney with Jenner & Block representing Climate United, expressed frustration at the termination because the plaintiffs had granted the “professional courtesy” of agreeing to a one-day delay requested by EPA.

Chutkan also hinted she thought the Trump administration asked for an extra day so it could pull the rug out from under this case.

“There’s a question as to whether the request for an additional day was made in good faith,” she said at one point. “I’m not even going to go into that, but I do have some questions here myself.”

In any event, EPA’s termination of the grant sent the hearing spiraling into questions about what exactly Chutkan was being asked to do and whether she has the authority to do it.

Sacks portrayed the dispute over the grant termination as a simple contract dispute — one that under federal law can be heard only by another court, the U.S. Court of Federal Claims.

Unikowsky argued that the termination is not a contract dispute, but rather a fight over whether EPA followed the law, something that Chutkan would have jurisdiction over.

Unikowsky said that Climate United will amend its complaint to argue the termination is a violation of constitutional due process rights and the appropriation clause, as well as the Administrative Procedure Act and “pertinent” federal regulations.

“You will not hear any mention of any breach of contract claim, nor will we seek money damages,” he said.

But Sacks maintained that Chutkan has no jurisdiction to block EPA’s termination of the grant.

“I think that the government has the right to decide who it wants to contract with and when it no longer wants to contract,” he said.

“Absolutely, absolutely,” replied Chutkan. “That’s not what’s at issue here. The government didn’t decide who it wanted to contract with. A new administration came in, didn’t like the contract anymore. That’s what new administrations do. But there are procedures that have to be followed. And it doesn’t appear, at least on the record before me, that those procedures have been followed.”

…The hearing comes as the Coalition for Green Capital became the second grant recipient Wednesday to sue both EPA and Citibank. The organization enjoined EPA, Zeldin and EPA Acting Deputy Administrator Chad McIntosh in its lawsuit against Citibank after the agency issued a notice of termination for its $5 billion grant.

Vincent Levy, a Holwell Shuster & Goldberg attorney representing CGC, wrote in the complaint that CGC has not been able to access its funds at Citibank since Feb. 18.

Levy wrote the EPA’s notice of termination did not follow necessary procedures to cancel its contract. He said the letter also “cited irrelevant statutory and regulatory authority, and was patently and plainly unlawful on its face” and that it “does not contain any findings with regard to CGC at all.” He said EPA’s action was “arbitrary and pretextual” because the agency had not identified any specific evidence of waste, fraud or abuse by CGC.

The group had filed a previous suit against just Citibank in a federal court in New York, but it withdrew that complaint earlier Wednesday in favor of its new expanded action, which it filed in a Washington court.