ICYMI: Markey, Van Hollen, Whitehouse, Dingell & Over Three Dozen Members File Amicus Brief Urging Reversal of D.C. Appeals Court Panel Decision Allowing Clawback of Greenhouse[...]

Washington (September 22, 2025) - Senators Edward J. Markey (D-Mass.), Chris Van Hollen (D-Md.), Senate Environment and Public Works Committee Ranking Member Sheldon Whitehouse (D-R.I.), 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.

The 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 Markey and Van Hollen and Congresswoman Dingell.

In the brief, the lawmakers argue that the D.C. Circuit panel's two-judge majority - both Trump appointees - misapplied precedent and ignored the district court's well-supported factual findings in a results-oriented bid to greenlight EPA's 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's 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' power of the purse to the executive branch.

The lawmakers outlined the thorough, transparent process by which the EPA under the Biden Administration awarded GGRF funds, writing, "Congress 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 'reduce or avoid greenhouse gas emissions and other forms of air pollution.' Congress required that the EPA obligate GGRF funds by September 30, 2024. EPA met the deadline and entered into Financial Agent Agreements to '[convey] to the grantees legal title to the award funds' while 'affording EPA greater oversight of the grantees' use of the funds than it would have had under the default disbursement system.'"

"After President Trump took office, the new EPA Administrator and other officials began to make outrageous attacks on grantees - including attempts to fabricate criminal fraud allegations. EPA's 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," they argued.

The 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, "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' 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] … statute at issue in Dalton, Congress could not have been clearer that the GGRF was enacted to 'enable low-income and disadvantaged communities to deploy or benefit from zero-emission technologies,' and that EPA had to obligate all grant funding by September 30, 2024. […] Dalton cannot sanction EPA nullifying clear statutory directives by terminating these programs."

They also criticize the panel for dismissing without basis key factual findings by the district court, writing, "The district court did not, as the panel writes, 'simply declare' that EPA was shutting down the GGRF program. […] Rather, the district court made well-supported findings of fact that EPA's out-of-court words and actions contradicted the Agency's representations in the litigation that the GGRF program would continue following termination of Plaintiffs' grants."

"If 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's exclusive power of the purse would be in name only. This Court should grant rehearing en banc," the Senators concluded.

Joining Senators Markey, Van Hollen, Whitehouse, 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 Barragán (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.).

Text of the lawmakers' argument is below, and the full brief can be viewed here.

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