States urge court to block FEMA grant limits before year-end deadline

EUGENE, Ore. (CN) — A coalition of states opposing the Trump administration’s new limitations on Federal Emergency Management Act grants argued on Wednesday that the new terms should be blocked before the end-of-the-year deadline for the states to accept the awards.

“Before the court is one of several cases from across the country addressing an effort by the Trump administration to sabotage FEMA and the emergency management and homeland security functions it provides, all pursuant to the administration’s stated goal of shifting these functions to the state,” argued Neil Giovanatti with the Michigan Department of Attorney General.

Twelve states sued the federal government in early November, claiming the new terms for FEMA grant programs create an “inconsistent patchwork of disaster response across the nation.”

Both the Emergency Management Performance Grant program and the Homeland Security Grant Program formula grants provide federal funding to help states prepare for and respond to disasters. New terms have placed an improper hold on funding for one and changed the schedule for using funds from both grants, the states argue.

In the Emergency Management Performance Grant program, a new term places a hold on funding until a state provides FEMA with a certification of its population and an explanation of the methodology used to determine it.

Specifically, the federal government requires states to attest that their reported population “does not include individuals that have been removed from the state pursuant to the immigration laws of the United States.” Funding will be released only when the government approves the state’s methodology and population certification.

The states argue this requirement violates the Administrative Procedure Act and that the government didn’t have the authority to impose the condition in the first place.

“The defendants have not identified a single statute that would authorize them to collect population data from the states,” Giovanatti said.

U.S. Magistrate Judge Amy Potter asked if there had been any previous situations wherein the government required states to supplement Census data, to which Giovanatti said no.

The requirement likewise violates the Paperwork Reduction Act, the states argue. The act requires the government to meet certain thresholds before collecting information from states to minimize the paperwork burden.

The federal defendants — which include FEMA, the Department of Homeland Security and both agencies’ top officials — argue the new population requirement is a simple additional certification that the states are presenting accurate information.

“There really can’t be anyone out there that says an extra data point makes these figures less accurate,” Justice Department attorney Alexandra Yeatts argued.

The new term is intended to reduce administrative complexity, the federal government argued.

The states also argue that the federal government arbitrarily reduces the reimbursement window from three years to one for both the Emergency Management Performance Grant program and the Homeland Security Grant Program formula grants.

“Defendants provide zero evidence that they considered the states’ reliance interests in imposing the challenged terms,” Giovanatti said.

The states pointed to the notice of funding opportunity posted in the summer that reflected a three-year performance period for both awards. The actual award notices reduced that period to just one year.

While the states recognized the government can alter the terms of the notice of funding opportunity, they argued that the change is essentially a change in policy that can be challenged and requires the government to consider the states’ interests.

“The fact that the [notice of funding opportunity] isn’t legally binding doesn’t matter,” Giovanatti said.

For decades, the agency has provided multiyear performance periods for both awards and backdated the Emergency Management Performance Grant award. The states argue they cannot effectively use the award funds within one year and that localities had already undergone grant-related activities during the expected backdated period, with the expectation of being reimbursed.

To this argument, the government countered that it was “unreasonable for plaintiff states to spend money they didn’t have.”

Plus, the government argued, FEMA has full discretion to outline the period of performance. A shorter performance period allows the governments to ask states how to respond to emerging and evolving terrorism threats on an annual basis rather than every three years, Yeatts argued.

With both changes to the grant terms, the states say the federal government neglected to consider their reliance interest. The states are asking the court to vacate the new terms in the 2025 grant awards and block the government from implementing them.

Potter expressed concern about the timing of the case, noting that a request for a stay is likely if she rules in favor of the states and acknowledging that either she or another court would be likely to grant one, and such a request would add work during the holiday rush.

“I know this is very time sensitive, and we will work to get this out as quickly as possible,” Potter said.