UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CLIMATE UNITED FUND
Plaintiff,
v. Civil Action No. 25-cv-698
CITIBANK, N.A., et al.
Defendants.
COALITION FOR GREEN CAPITAL
Plaintiff,
v. Civil Action No. 25-cv-735
CITIBANK, N.A., et al.
Defendants.
POWER FORWARD COMMUNITIES,
INC.
Plaintiff,
Civil Action No. 25-cv-762
v.
CITIBANK, N.A., et al.
Defendants.
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MEMORANDUM OPINION
Plaintiffs Climate United Fund (“Climate United”), Coalition for Green Capital (“CGC”),
and Power Forward Communities, Inc. (“PFC”) are nonprofit financial institutions who, in April
2024, were awarded grant funding by the U.S. Environmental Protection Agency (“EPA”) to
finance clean technology projects nationwide. Under the National Clean Investment Fund
(“NCIF”), Climate United was awarded $6.97 billion, CGC was awarded $5 billion, and PFC was
awarded $2 billion. The grant requires that Plaintiffs’ funds be held at Citibank, N.A. (“Citibank”)
under the parties’ respective agreements.
On March 8, March 12, and March 14, 2025, Climate United, CGC, and PFC, respectively,
sued Citibank, and EPA, EPA Administrator Lee Zeldin, and EPA Acting Deputy Administrator
William Charles McIntosh (collectively, “EPA Defendants”), seeking declaratory and injunctive
relief after EPA Defendants unilaterally terminated Plaintiffs’ grant awards.1 Plaintiffs bring a
variety of claims, including breach of contract, conversion, and replevin against Citibank, claims
under the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2), and the Due Process Clause,
against EPA Defendants, claiming its actions violated multiple regulations, statutes, and
constitutional provisions.
In mid-February 2025, Plaintiffs attempted to draw on funds from their respective
accounts, to no avail. They received little to no communication from Citibank and EPA
Defendants regarding their inability to access their funds. On March 11, 2025, EPA Defendants
transmitted nearly identical “Notice of Termination” letters to Plaintiffs, indicating that EPA was
1
On March 17, 2025, Plaintiff Climate United filed an Amended Complaint. See Climate United,
ECF No. 24. Plaintiff Climate United sues Citibank, EPA, and EPA Administrator Lee Zeldin
only. Id. Plaintiff PFC sues on behalf of itself and certain of its award subrecipients. See Power
Forward, Compl. ECF No 1.
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terminating their grants effectively immediately. Climate United, Notice of Grant Termination
Letter (“Termination Letter”), ECF No. 13-1; Power Forward, Notice of Grant Termination Letter,
ECF No. 1-10; Coalition Green Capital, Compl. ¶ 13.
That same week, Plaintiffs individually moved for a Temporary Restraining Order
(“TRO”), seeking to enjoin Citibank from violating its legal and contractual obligations to disburse
grant money owed to Plaintiffs, to enjoin Citibank from transferring Plaintiffs’ grant funds out of
their accounts, to enjoin Defendants from giving effect to EPA Defendants’ Termination Letter,
and to enjoin EPA Defendants from taking action to, among other things, implement the
termination of Plaintiffs’ grant awards. On March 12, and March 17, 2025, the court held hearings
on the motions. See March 12, 2025 Min. Order; see March 16, 2025 Min. Order.
Based on the parties’ briefing, oral argument, and the record, the court finds that Plaintiffs
have carried their burden of showing that they will suffer imminent, irreparable harm absent a
temporary restraining order. It will therefore GRANT Plaintiffs’ motions and enters a temporary
restraining order, though more limited in scope than Plaintiffs’ proposed orders.
I. BACKGROUND
A. EPA Grant Funding – Statutory Background
In 2022, Congress passed, and President Biden signed into law, the Inflation Reduction
Act (“Act”). Pub. L. No. 117-169, 136 Stat. 1818. The Act authorized the Greenhouse Gas
Reduction Fund (“GGFR”), which appropriated approximately $27 billion to the EPA
Administrator to make grants available to eligible recipients for various climate projects. See 42
U.S.C. § 7434(a)(1)–(3).
In 2023, EPA launched three grant competitions under the GGRF, including the $14 billion
National Clean Investment Fund (“NCIF”) competition, geared at “financ[ing] clean technology
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deployment nationally.” Climate United Am. Compl. ¶ 80; see Climate United, TRO Mot. Ex. 1,
ECF No. 2-3. The purpose of the NCIF was to “provide grants to 2-3 national nonprofit financing
entities to create national clean financing institutions capable of partnering with the private sector
to provide accessible, affordable financing for tens of thousands of clean technology projects
nationwide.” Climate United, ECF No. 2-3 at 4.
B. Climate United, CGC, and PFC Apply for and Win EPA Grants
In October 2023, Plaintiffs applied for grant funding through the NCIF, and in April 2024,
EPA awarded Climate United $6.97 billion, CGC $5 billion, and PFC $2 billion in grant funding.
Climate United, Am. Compl. ¶¶ 48; Power Forward, Compl. ¶¶ 37–38; Coalition Green Capital,
Compl. ¶ 2. Plaintiffs developed, and EPA approved, their respective workplans. Plaintiffs have
begun implementing these workplans—some have committed funds to projects, see Climate
United, Compl. ¶ 37 (noting that Climate United has committed $392 million to qualified projects),
or entered into contracts with third parties, subrecipients, or subgrantees. See Power Forward,
Compl. ¶¶ 18–23.
a. Award Agreements and Relevant Regulations
Plaintiffs’ grant awards were memorialized in grant agreements between Plaintiffs and
EPA, which include ‘Terms and Conditions’ governing, among other things, EPA’s termination
of the award. Climate United, Am. Compl. ¶¶ 50–59. The Terms and Conditions specify that EPA
may only terminate an award under three circumstances:
(1) If a grant recipient engages in “substantial” noncompliance such that “effective
performance” is “Materially Impaired.” Performance is deemed “Materially
Impaired” if: (1) EPA issues a “written determination and finding . . . that the
Recipient has failed to achieve sufficient progress in accordance with the
Sufficient Progress clause;” and (2) if EPA determines in its sole discretion that
a “corrective action plan” would remedy the issue and EPA issues a “separate
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written determination and finding” that the Recipient “has not materially
addressed its failure.”
(2) If a Recipient engages in “material misrepresentation of eligibility status;” and
(3) For “Waste, Fraud, or Abuse,” which is defined with reference to EPA General
Terms and Conditions and 2 C.F.R. § 200.113. Termination on these grounds
require “credible evidence of the commission of a violation of Federal criminal
law involving fraud, conflict of interest, bribery, or gratuity violations found in
Title 18 of the United States Code or a violation of the civil False Claims Act
(31 U.S.C. §§ 3729-3733).”
See, e.g., Climate United, TRO Mot. Ex. 2, ECF No. 2-4 at 42.
Grant award recipients also agree to comply with EPA’s general terms and conditions, “in
addition to the assurances and certifications made as part of the award” and which provide for
situations where EPA may unliterally terminate an award, which shall be “consistent with 2 C.F.R.
§ 200.340.” Id. at 8.
Under the relevant regulations, a federal award may be terminated by the agency “if the
recipient or subrecipient fails to comply with the terms and conditions of the Federal award,” or
“pursuant to the terms and conditions of the Federal award, including, to the extent authorized by
law, if an award no longer effectuates the program goals or agency priorities.” 2 C.F.R.
§ 200.340(a)(1), (4).
EPA must also take certain procedural steps before it can terminate federal awards. For
example, under 2 C.F.R. § 200.341, EPA must provide written notice of termination that includes
“the reasons for termination, the effective date, and the portion of the Federal award to be
terminated[.]” Under 2 C.F.R. § 200.342, titled, ‘Opportunities to object, hearings, and appeals,’
“[u]pon initiating a remedy for noncompliance”—such as termination—“the Federal agency must
provide the recipient with an opportunity to object and provide information challenging the
action.” The agency must “comply with any requirements for hearings, appeals, or other
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administrative proceedings to which the recipient or subrecipient is entitled under any statute or
regulation applicable to the action involved.” Id.
C. Agreements Between Citibank, EPA, and Plaintiffs
Under the grant agreements, Plaintiffs’ grant funds must be held at Citibank under their
respective Financial Agency Agreement (“FAA”) between Citibank and the U.S. Treasury
Department, and respective Account Control Agreement (“ACA”) between Citibank, EPA, and
Plaintiffs. See Climate United, TRO Mot. at 11–12; Coalition Green Capital, Compl. ¶¶ 4–6.
Under the ACA, Citibank is “designated and authorized to act as a financial agent of the
United States” under the authority of the Treasury Department, and it administers and disburses
the funds provided under the NCIF. Climate United, TRO Mot. Ex. 8 at 3, ECF No. 2-10, Account
Control Agreement. Citibank must “comply with all instructions, notifications, and entitlement
orders the Bank receives directing the disposition of funds and financial assets” and must release
Plaintiffs’ funds at their request, unless EPA—considered a “Secured Party” to the agreement—
issues a “Notice of Exclusive Control stating that it is exercising its right to exclusive control over
an Account.” Id. at 4; see also Citibank Opp’n in Climate United, Ex. 1 at 25, ECF No. 14-4.
Similarly, under the FAA, Citibank acts as a financial agent of the United States and provides
banking and financial services related to EPA’s grant programs, including the one here. Id. Ex. 1,
ECF No. 14-1, Financial Agency Agreement (SEALED).
D. EPA Administrator and Funds Pause
On January 30, 2025, the Senate confirmed Lee Zeldin as EPA Administrator. See Climate
United, Am. Compl. ¶ 89. On February 12, 2025, Administrator Zeldin publicly announced that
EPA intended to take control of grant funds disbursed under the Inflation Reduction Act. Id. ¶ 90.
In public statements, Administrator Zeldin declared that “the financial agent agreement with the
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Bank needs to be instantly terminated,” “the Bank must immediately return” the funding, and EPA
is “not going to rest” until it has “recovered” the grant funds. Id.
On February 23, 2025, Administrator Zeldin discussed the GGRF program on a television
program, stating that “the entire scheme, in my opinion, is criminal.” Id. ¶ 91(f). One week later,
on March 2, 2025, EPA issued a letter to its Office of the Inspector General requesting an
investigation into GGRF. Id. ¶ 91(g).
Pursuant to the agreements discussed above, Plaintiffs would periodically request
disbursement of their funds through Citibank. See, e.g., Climate United, TRO Mot. at 14
(requested funds every two weeks); Decl. of Elizabeth Brafford (“Brafford Decl.”) ¶ 21, ECF No.
2-2. But in-mid February 2025, when Plaintiffs placed their usual request, Citibank did not release
the funds. Climate United, TRO Mot. at 18–19. Though Plaintiffs requested access to their funds
throughout February and March 2025, Citibank did not release the funds, and did not respond to
Plaintiffs’ inquiries. Around March 3, 2025, Citibank informed at least one Plaintiff, Climate
United, that it had forwarded its communications to EPA and was “awaiting further guidance.”
See Climate United, TRO Mot. Ex. 6, ECF No. 2-8 (email correspondence between Citibank and
Climate United).
During this time, EPA also did not respond to Plaintiffs’ inquiries. See Brafford Decl. ¶ 10.
It offered to meet with Climate United during the week of February 24, and Climate United agreed.
Climate United, TRO Mot. Ex. 7 at 7, ECF No. 2-9. EPA rescheduled the meeting three times and
then canceled it without explanation. Brafford Decl. ¶ 34. Climate United requested a smaller
meeting, in case scheduling for multiple people was the challenge, and received no response.
Climate United, TRO Mot. at 1. Climate United claims it did not receive any “substantive
communication from the EPA” or notice as to why it could not access its funds. Id.
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On March 4, 2025, the Treasury Department instructed Citibank not to disburse any GGRF
funds through March 9, 2025, and on March 10, 2025, EPA directed Citibank to continue to refrain
from processing payments. Citibank Opp’n Ex. 7, ECF No. 14-7; id., Ex. 2, ECF No. 14-2.
E. Grant Termination Letter
On March 8, 2025, Climate United filed suit and moved for a TRO. Climate United, ECF
No. 2. In support of their motion, they attached several exhibits, including (1) a declaration from
Elizabeth Bafford, Climate United’s CEO; (2) the Account Control Agreement (“ACA”) between
Climate United, Citibank, and EPA; and (3) the grant award agreement. Id.
The court informed the parties that it was inclined to set a hearing for March 11, 2025, and
have opposition briefs due that same day. EPA Defendants “asked for an extension as a
professional courtesy,” which Climate United agreed to. TRO Mot. Hr’g Tr. 10:06–12 (March 12,
2025), ECF No. 22. The court scheduled a hearing on the motion for March 12, 2025. March 12,
2025 Min. Order.
A day before the scheduled hearing, on March 11, EPA Defendants sent Plaintiffs
identical letters informing them that EPA was terminating Plaintiffs’ “grant effective
immediately.” See Termination Letter at 1–2. EPA Defendants stated that they terminated the
grants “based on substantial concerns regarding program integrity, the award process,
programmatic fraud, waste, and abuse, and misalignment with the Agency’s priorities, which
collectively undermine the fundamental goals and statutory objectives of the award.” Id. at 1. The
letters stated that “following a comprehensive review and consistent with multiple ongoing
independent federal investigations into programmatic fraud, waste, abuse and conflicts of interest
EPA has identified material deficiencies,” including “absence of adequate oversight and account
controls,” “improper or speculative allocation of funds inconsistent with EPA’s oversight and
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fiscal responsibilities,” and “circumvention and defeat of key oversight mechanisms in the
disbursement of federal funds.” Id. The letter instructed Plaintiffs to cease all further program
expenditures immediately.
On March 12, 2025, EPA Defendants filed an opposition to Climate United’s TRO,
attaching nine exhibits, including communications between EPA Defendants and Plaintiff Climate
United and between EPA Defendants and Citibank. Defs.’ Opp’n to Mot. (“Defs.’ Opp’n”), ECF
No. 16. Citibank also filed its opposition, attaching seven exhibits, including various
communications between Citibank and Treasury and Citibank and EPA Defendants, and the FAA
between Citibank and Treasury. Citibank Opp’n, ECF No. 14.
On March 12, and March 14, 2025, CGC and PFC filed a similar suit against Citibank and
EPA Defendants, and both subsequently moved for a TRO. Coalition Green Capital, Compl.;
Power Forward, Compl.
II. LEGAL STANDARD
A temporary restraining order is “an extraordinary remedy that should be granted only
when the party seeking relief, by a clear showing, carries the burden of persuasion.” Hulli v.
Mayorkas, 549 F. Supp. 3d 95, 99 (D.D.C. 2021) (quoting Postal Police Off. Ass’n v. U.S. Postal
Serv., 502 F. Supp. 3d 411, 418 (D.D.C. 2020)). As with a preliminary injunction, a party seeking
a TRO must establish “(1) that he is likely to succeed on the merits, (2) that he is likely to suffer
irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his
favor; and (4) that an injunction is in the public interest.” Aamer v. Obama, 742 F.3d 1023, 1038
(D.C. Cir. 2014) (quoting Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011)).
A court also considers the “underlying purpose” of a TRO—“preserving the status quo and
preventing irreparable harm” until it has an opportunity to rule on the merits. See Granny Goose
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Foods, Inc. v. Bhd. of Teamsters & Auto Truck Drivers Loc. No. 70 of Alameda Cnty., 415 U.S.
423, 439 (1974); Shelley v. Am. Postal Workers Union, 775 F. Supp. 2d 197, 202 (D.D.C. 2011)
(“The court may issue a temporary restraining order (‘TRO’) when a movant is faced with the
possibility that irreparable injury will occur even before the hearing for a preliminary injunction
required by Federal Rule of Civil Procedure 65(a) can be held.”); Elec. Data Sys. Fed. Corp. v.
Gen. Servs. Admin., 629 F. Supp. 350, 352 (D.D.C. 1986) (“In the context of the limited purpose
of a temporary restraining order, the Court's analysis of these factors seeks principally to ensure
preservation of the status quo.”).
III. ANALYSIS
The court finds that, on the record currently before it, Plaintiffs are entitled to a temporary
restraining order.
A. Jurisdiction
First, EPA Defendants argue that the court lacks jurisdiction to hear this case because “the
relief Plaintiff seeks is entirely contractual in nature” and “really amounts to a breach-of-contract
claim.” Defs.’ Opp’n at 15. According to EPA Defendants, jurisdiction therefore lies in the Court
of Federal Claims. At the March 17 hearing, EPA Defendants re-iterated this position for all
Plaintiffs. This argument is unavailing.
Under the Tucker Act, 28 U.S.C. § 1491, the Court of Federal Claims has exclusive
jurisdiction over certain contract and monetary claims against the government. But the D.C.
Circuit has “explicitly rejected the ‘broad’ notion ‘that any case requiring some reference to or
incorporation of a contract is necessarily on the contract and therefore directly within the Tucker
Act’ because to do so would ‘deny a court jurisdiction to consider a claim that is validly based on
grounds other than a contractual relationship with the government.’” Crowley Gov’t Servs., Inc.
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v. Gen. Servs. Admin., 38 F.4th 1099, 1107 (D.C. Cir. 2022) (quoting Megapulse, Inc. v. Lewis,
672 F.2d 959, 967–68 (D.C. Cir. 1982)).
In determining whether a claim falls under the Tucker Act the court must decide if the
action “is at its essence a contract claim.” Id. at 1106 (quoting Megapulse, 672 F.2d at 967). The
D.C. Circuit has instructed that “whether a claim is ‘at its essence’ contractual” depends “both on
the source of the rights upon which the plaintiff bases its claims, and upon the type of relief sought
(or appropriate).” Id. (quoting Megapulse, 672 F.2d at 968).
Plaintiffs’ claims are not at their “essence contractual.” Plaintiffs sued Citibank and EPA
Defendants after Citibank refused to release their grant funds and after EPA Defendants
unilaterally terminated these grants, without giving Plaintiffs any meaningful opportunity to be
heard. They challenge the unlawful terminations and EPA’s failure to take the necessary
procedural steps before terminating the grant awards. Plaintiffs do not challenge a contract
between the parties—they challenge an action. And “exclusive jurisdiction in Claims Court under
the Tucker Act does not lie ‘merely because [a plaintiff] hints at some interest in a monetary reward
from the federal government or because success on the merits may obligate the United States to
pay the complainant.’” Id. at 1108 (quoting Kidwell v. Dep’t of Army, 56 F.3d 279, 284 (D.C. Cir.
1995)). This court has jurisdiction over the alleged due process and “arbitrary and capricious”
agency actions under the U.S. Constitution and the APA, 5 U.S.C. § 702.
Moreover, Plaintiffs were awarded this grant pursuant to a statute authorized by Congress.
As the Supreme Court has noted, “[u]nlike normal contractual undertakings, federal grant
programs originate in and remain governed by statutory provisions expressing the judgment of
Congress concerning desirable public policy.” Bennett v. Kentucky Dept. of Educ., 470 U.S. 656,
669 (1985). Plaintiffs’ “claims arise under a federal grant program and turn on the interpretation
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of statutes and regulations rather than on the interpretation of an agreement negotiated by the
parties.” Maryland Dep’t of Hum. Res. v. Dep’t of Health & Hum. Servs., 763 F.2d 1441, 1449
(D.C. Cir. 1985) (citation omitted). EPA Defendants’ termination of these grants appears to
contravene a duly enacted statute and interferes with Plaintiffs’ statutory rights to these funds.
At bottom, Plaintiffs do not bring simple breach of contract claims—they challenge adverse
agency action. Plaintiffs neither seek money damages nor ask the court to interpret the terms of
any contract. They instead ask the court to determine whether EPA Defendants’ actions in
terminating the grant were, as EPA Defendants contend, “reasonable and in compliance with
EPA’s rights under the Grant Agreement.” Defs.’ Opp’n at 15. A decision on that issue would
enable Plaintiffs to avail themselves “of statutory and regulatory provisions and procedures that
may, or may not, entitle [it] to a monetary recovery.” Tootle v. Sec’y of Navy, 446 F.3d 167, 175
(D.C. Cir. 2006) (collecting authorities).
Finally, cases “have long recognized” that “[t]he fact that a judicial remedy may require
one party to pay money to another is not a sufficient reason to characterize the relief as ‘money
damages.’” Bowen v. Massachusetts, 487 U.S. 879, 893 (1988). Indeed, “a claim is not for money
merely because its success may lead to pecuniary costs for the government or benefits for the
plaintiff.” Kidwell, 56 F.3d at 285; see Vietnam Veterans v. Sec’y of the Navy, 843 F.2d 528, 534
(D.C. Cir. 1988). And as is true here, any monetary benefit that might flow to Plaintiffs “would
not come from this court’s exercise of jurisdiction, but from the structure of statutory and
regulatory requirements governing compensation” in this action. Tootle, 446 F.3d 167 at 174
(citation omitted).
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B. Mootness
Second, EPA Defendants argue that the request for a temporary restraining order is now
moot because “EPA terminated the Grant, [] ending Plaintiff’s performance and its right to request
disbursement of funds.” Defs.’ Opp’n at 13. The court disagrees. 2
Article III of the U.S. Constitution requires a case or controversy to remain live “at all
stages of review.” Decker v. Nw. Env’t Def. Ctr., 568 U.S. 597 (2013) (quoting United States v.
Juv. Male, 564 U.S. 932, 963 (2011)). “[A] case is moot when the issues presented are no longer
‘live’ or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395
U.S. 486, 496 (1969). A case is also moot “if the dispute ‘is no longer embedded in any actual
controversy about the plaintiffs’ particular legal rights.’” Already, LLC v. Nike, Inc., 568 U.S. 85,
91 (2013) (quoting Alvarez v. Smith, 558 U.S. 87, 93 (2009)).
Based on the parties’ arguments and the record, the court finds that there is a live
controversy, and Plaintiffs’ claims are not moot. The fact that EPA Defendants have done one of
the things that Plaintiffs sought to enjoin—unilaterally terminated their grants—does not mean the
controversy no longer exists. In fact, there is perhaps even more of a controversy over Plaintiffs’
particular legal rights here. As discussed above, and at the very least, there are serious due process
concerns and questions of whether EPA Defendants’ actions were “arbitrary, capricious, an abuse
of discretion, [] otherwise not in accordance with law,” contrary to statute, or unsupported by
substantial evidence in violation of the APA, 5 U.S.C. § 706(2).
2
While EPA Defendants did not address mootness at the March 17 hearing, the court addresses
the argument and addresses it as to all Plaintiffs.
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C. Temporary Restraining Order
a. Likelihood of Success on the Merits
Plaintiffs challenge, among other things, EPA Defendants’ actions as arbitrary and
capricious, an abuse of discretion, or otherwise not in accordance with law under the APA, and
violation of their due process rights. In its Climate United opposition, EPA Defendants counter
that its termination of the grant was “eminently reasonable—not arbitrary and capricious,” and
“the only responsible course in the interim [] to suspend further grant disbursements that might
otherwise be unrecoverable.” Defs.’ Opp’n at 21. But based on the record before the court, and
under the relevant statutes and various agreements, it does not appear that EPA Defendants took
the legally required steps necessary to terminate these grants, such that its actions were arbitrary
and capricious. And when questioned at the March 12 hearing, and as discussed further below,
EPA Defendants proffered no evidence to support their basis for the sudden terminations, or that
they followed the proper procedures.3 Consequently, Plaintiffs have shown a substantial
likelihood of success on the merits of their APA and due process claims.
The Terms and Conditions governing the grant award expressly limit EPA to three possible
grounds for termination: “when [1] the noncompliance with the terms and conditions is substantial
such that effective performance of the Assistance Agreement is Materially Impaired or [2] there is
adequate evidence of Waste, Fraud, or Abuse or [3] material misrepresentation of eligibility
3
TRO Mot. Hr’g Tr. 21:06–22 (March 12, 2025), ECF No. 22 (cleaned up): MR. SACKS: And,
again, the termination, to my knowledge, is based on what’s set forth in the [] letter. THE COURT:
Tell me, can you proffer to me the evidence of commission of a violation of federal criminal law
involving fraud, conflict of interest, bribery, or gratuity violations? Any one of those things? MR.
SACKS: I cannot, Your Honor. And I think the reason I cannot is because this Court is not in a
position to rule upon whether or not this termination was consistent with the contracts. THE
COURT: That’s why you can’t provide it to me or you don’t have it? MR. SACKS: No, I don’t
have it. Yeah, I don’t have it.”
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status[.]” Climate United, TRO Mot. Ex. 3 at 41, ECF No. 2-5. The termination letter states that
the termination was pursuant to 2 C.F.R. § 200.339 and § 200.340 and “based on substantial
concerns regarding program integrity, the award process, programmatic fraud, waste, and abuse,
and misalignment with the Agency’s priorities, which collectively undermine the fundamental
goals and statutory objectives of the award.” Termination Letter at 1.
EPA’s General Terms and Conditions allow for unilateral termination of an award, which
shall be “consistent with 2 C.F.R. § 200.340.” See Amidon Decl. ¶ 27. Under 2 C.F.R. § 200.340,
a grant may be terminated if a recipient fails to comply with the terms and conditions of the award,
id. § 200.340(a)(1), or pursuant to the terms and conditions of the award, including to the extent
authorized by law, if an award no longer effectuates the program goals or agency priorities, id.
§ 200.340(a)(4) (emphasis added).
But as explained, see supra Section I(B)(a), EPA must take certain procedural steps before
it can terminate a federal award. It must provide written notice of a grant termination, 2 C.F.R.
§ 200.341, and it must “provide the recipient with an opportunity to object and provide information
challenging the action” and comply “with any requirements for hearings, appeals, or other
administrative proceedings to which the recipient or subrecipient is entitled under any statute or
regulation applicable to the action involved,” 2 C.F.R. § 200.342.
Though EPA Defendants provided written notice, they did not comply with 2 C.F.R.
§ 200.342 and allow Plaintiffs “an opportunity to object and provide information challenging the
action” when it unilaterally terminated their grants. Moreover, as to all Plaintiffs, EPA Defendants
did not and have not identified a violation of any applicable regulation or any of the grant’s terms—
only that there are concerns about potential conflicts of interest and their grant agreements. If
these concerns are valid, there are, again, procedures that must be followed.
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In the termination letters, EPA Defendants vaguely reference “multiple ongoing
investigations” into “programmatic waste, fraud, and abuse and conflicts of interest” but offer no
specific information about such investigations, factual support for the decision, or an
individualized explanation for each Plaintiff. This is insufficient. EPA may terminate the
agreements for “waste, fraud, or abuse,” but this requires “credible evidence of the commission of
a violation of Federal criminal law involving fraud, conflict of interest, bribery, or gratuity
violations found in Title 18 of the United States Code or a violation of the civil False Claims Act
(31 U.S.C. §§ 3729-3733).” At this stage, EPA Defendants have not provided the “credible
evidence” required.
At the court’s request, on March 17, 2025, EPA Defendants submitted a declaration from
Eric Amidon, EPA’s Chief of Staff. Amidon Decl.; see March 14, 2025 Min. Order (“Federal
Defendants shall file a declaration addressing the basis for the grant termination, [] including the
proffer of evidence discussed at the hearing.”). In his declaration, Amidon details the agency’s
general concerns with management of the GGRF program, including concerns with lack of
adequate oversight and transparency into use of grant funding and in the grant agreements, and
potential conflicts of interest among the grant recipients. See Amidon Decl. ¶¶ 31–39.
As to individual Plaintiffs, Amidon cites to potential conflicts of interest and concerns
about the structure of their grant agreements. Id. ¶¶ 34–37. These concerns stemmed, in part,
from public media reporting. Id. ¶ 33–35. Amidon also states that there are ongoing criminal and
civil investigations and that the EPA Office of Inspector General has initiated an investigation into
the GGRF program. Id. ¶¶ 43. At this juncture, EPA Defendants have not sufficiently explained
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why unilaterally terminating Plaintiffs’ grant awards was a rational precursor to reviewing the
GGRF program.4
At the March 12 hearing, when asked why the grant was terminated, EPA Defendants
stated that “the termination is based on the information contained in the termination letter.” TRO
Mot. Hr’g Tr. 18:04–5 (March 12). When pressed to, at a minimum, even proffer such evidence,
counsel for EPA Defendants was unable to, stating that he was only aware of media reports
discussing the termination. This circular argument and unhelpful response was of no assistance to
the court in discerning whether EPA Defendants followed the necessary steps to terminate the
grant, or whether EPA Defendants had offered a reasoned explanation for the termination.
To be sure, agencies can decide to re-evaluate their programs, or they may decide to end
agreements or federal awards. But those decisions must be made lawfully and in accordance with
established procedures and relevant rules and regulations, including the ‘Remedies for
4
EPA Defendants state that DOJ and FBI have initiated a criminal investigation into the GGRF
program, though they offer not much else on the matter. See Amidon Decl. ¶¶ 42–43. Plaintiff
Climate United proffers news reports of the government’s thus far unsuccessful attempts to open
a criminal investigation into Climate United’s grant award. Climate United, Compl. ¶ 65. For
example, according to public reporting, the Office of the Deputy Attorney General at the
Department of Justice (“ODAG”) instructed the D.C. U.S. Attorney’s Office (“USAO-DC”) to
open a criminal investigation into the grant award. Id. Denise Cheung—Chief of the Criminal
Division at USAO-DC at the time—advised that there was no adequate factual basis for a grand
jury investigation. Id. When ODAG instructed that a letter be sent directing Citibank to refrain
from releasing funds pursuant to a criminal investigation, senior officials at the USAO-DC again
asserted there was insufficient evidence to justify issuing that letter. Denise Cheung refused to
send the letter and resigned. Id. Other news reports indicate that the Interim D.C. U.S. Attorney
submitted a seizure warrant application, which a magistrate judge rejected. There are also reports
that ODAG sought a different U.S. attorney’s office to carry out the warrant request for a grand
jury investigation and to obtain a court-ordered bank freeze, but prosecutors in that office refused
to do so. The court may take judicial notice of news articles for their existence, but not for the
truth of the statements asserted therein. See, e.g., Hourani v. Psybersolutions, 164 F. Supp. 3d
128, 132 n.1 (D.D.C. 2016); cf. Banks v. Booth, 459 F. Supp. 3d 143, 149, 154 (D.D.C. 2020)
(refusing to consider counsel’s assertions during preliminary injunction oral argument absent
corroborating record evidence).
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Noncompliance’ under 2 C.F.R. §§ 200.339–200.343, and in accordance with the APA. The court
cannot find that EPA complied with these procedures and regulations based on the current record.
Consequently, the court finds that Plaintiffs have shown a substantial likelihood of success on the
merits on their APA claims.5
b. Irreparable Injury
Plaintiffs have also made a sufficient showing of irreparable harm. To show irreparable
harm, the “injury alleged must be ‘both certain and great, actual and not theoretical, beyond
remediation, and of such imminence that there is a clear and present need for equitable relief.’”
Church v. Biden, 573 F. Supp. 3d 118, 138 (D.D.C. 2021) (quoting Mexichem Specialty Resins,
Inc. v. EPA, 787 F.3d 544, 555 (D.C. Cir. 2015)). The “‘possibility of irreparable harm’ is not
enough.” Id. (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). A plaintiff
must demonstrate “a clear and present need for extraordinary equitable relief to prevent harm.” Id.
(citation omitted). “If a party fails to make a sufficient showing of irreparable injury, a court may
deny a motion for injunctive relief.” Beattie v. Barnhart, 663 F. Supp. 2d 5, 8 (D.D.C. 2009)
(citing CityFed Fin. Corp. v. Off. Of Thrift Supervision, 58 F.3d 738, 742 (D.C. Cir. 1995)); Hulli
v. Mayorkas, 549 F. Supp. 3d 95, 99 (D.D.C. 2021) (“[M]ovants are barred from receiving such
relief should they fail to establish irreparable injury.”) (collecting authorities).
The Supreme Court has held that “[i]ssuing a preliminary injunction based only on a
possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an
extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled
5
Although the parties brief multiple issues, the court need only find that Plaintiffs are likely to
succeed on one of their claims for this factor to weigh in their favor, the court does not address
these arguments. See Media Matters for Am. v. Paxton, 732 F. Supp. 3d 1, 27 (D.D.C.), appeal
dismissed, No. 24-7059, 2025 WL 492257 (D.C. Cir. Feb. 13, 2025).
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to such relief.” Winter, 555 U.S. at 22 (emphasis added) (citing Mazurek v. Armstrong, 520 U.S.
968, 972 (1997) (per curiam)). Based on the current record, the court finds that Plaintiffs satisfy
the “high standard for irreparable injury.” Church, 573 F. Supp. 3d at 138 (quoting Chaplaincy of
Full Gospel Churches v. England, 454 F.3d 290, 297 (D.C. Cir. 2006)).
Here, the harm is not a possibility—as Plaintiffs have shown, without release of the grant
funds, imminent harm is unavoidable. Plaintiffs’ financing for their operations and projects all
derive from the grant money, which is used to pay employees, pay rent, and fund projects.
Moreover, preserving the status quo here is particularly important. If Citibank transfers money
out of these accounts, the funds will not be recoverable. In cases involving government
expenditures, “once the relevant funds have been obligated, a court cannot reach them in order to
award relief.” City of Houston v. Dep’t of Hous. & Urb. Dev., 24 F.3d 1421, 1426–27 (D.C. Cir.
1994). Any transfer, re-allocation, or re-obligation of these funds would be an irreparable loss.
While ordinary economic injuries are usually insufficient to require injunctive relief,
financial harm can “constitute irreparable harm . . . where the loss threatens the very existence of
the movant’s business.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985). Without
access to the grant funds, Plaintiffs have no cash or reserves available to pay their operating
expenses, and they have no other committed sources of funding that could replace the grant award.
See Brafford Decl. ¶¶ 40, 43; Timothy Mayopoulos Decl. (“Mayopoulos Decl.”) ¶ 7. Plaintiffs
will be unable to finance programs they have launched, and they will have to cease operations.
For example, to date, Plaintiff Climate United has committed $392 million to qualified
projects and has launched three financing projects. Brafford Decl. ¶ 44. It has:
• Committed a $31.8 million pre-construction loan to finance 18 solar projects
benefiting rural communities in Arkansas. This is the largest commercial solar
deployment in Arkansas history and is projected to save over $120 million in
energy costs over the project’s life and create hundreds of jobs.
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• Launched a program to establish affordable leasing options for battery electric
heavy-duty trucks to small fleets and independent contractors, which will
support an affordable leasing program at the ports of Long Beach and Los
Angeles before expanding across the country.
• Committed $63 million in pre-construction financing for the design and
development of solar power plants in partnership with Tribal governments and
communities in Eastern Oregon and Idaho, bringing access to affordable energy
to rural communities and Indigenous people, creating 1,200 jobs, and spurring
local economic development.
Id. ¶¶ 24–26.
In her declaration, Bafford includes concrete examples of both monetary and non-monetary
imminent harms. Specifically:
• Climate United cannot currently access funds to pay its payroll and other
expenses related to immediate implementation of its grant workplan. Id. ¶ 39.
• Climate United has had to defer compensation for certain employees to preserve
its limited cash. Id.
• Without a stable source of funding, Climate United will no longer be able to
pay its employees and will face having to cut hours and furlough staff. Id.
• Climate United imminently risks not being able to pay payroll or health, vision,
and dental benefits, life insurance, and disability insurance for its employees.
Id. ¶ 43.
• Furloughing or laying off staff will eliminate positions that perform critical
functions for Climate United, including monitoring the loans that Climate
United has already disbursed to funding recipients and the $392 million that it
has committed to date. Id. ¶ 44.
• Climate United imminently risks not being able to pay rent or insurance for
certain offices or to pay third-party contractors who perform necessary tasks
such as auditing its financial statements, maintaining its IT security and
infrastructure, and providing legal services. Id. ¶ 45.
• Continued failure to access the funds would prevent Climate United from
meeting its commitments under the loans and awards it has approved and plans
to approve, potentially forcing it into breach of its existing agreements. Id.
¶¶ 46–48, 50.
As to PFC, the freeze has impacted the organization’s ability to carry on day-to-day
operations and fulfill its legal obligations. Power Forward, TRO Mot. at 28. For example, “the
inability of PFC and its Subrecipients to access their NCIF funds impedes their ability to pay their
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people.” Id. at 29. PFC’s staff are either employees whose positions are funded by the NCIF
award or secondees on loan to PFC under secondment and services agreements. Id. PFC’s
inability “to access funds has placed it at imminent risk of defaulting on contracts with critical
vendors—including for financial management, IT, legal, and management consultant services.”
Id. PFC has committed at least $539,000,000 to provide affordable housing support and has other
projects that will be detrimentally impacted absent funding. TRO Mot. Hr’g Tr. (March 17) 24:01–
25:04.
As PFC’s President and CEO, Timothy Mayopoulos, details:
• PFC has been unable to pay outstanding invoices from contractors for work
completed on PFC’s behalf and, as a result, PFC is incurring default risk with
respect to these contracts. Mayopoulos Decl. ¶ 18.
• These include contracts for legal and management consultant services that are
necessary for PFC to administer the grant in compliance with the terms of the
Award Agreement and contracts for essential financial management and IT
services. Id.
• If PFC is not able to make payment on these outstanding invoices, which it
cannot do without access to its funds, PFC is at imminent risk of losing these
services due to default. Id.
• PFC’s key contractor, for example, has advised that PFC has until March 17,
2025, to make payment or it may cease providing services. Id.
• PFC is also unable to pay contractors to complete, or in some cases to begin,
critical work for PFC. This includes the completion of a financial reporting
audit and work improve PFC’s website that is necessary to help make
information available to the public. Id. ¶ 19.
• PFC’s inability to access its funds threatens its ability to compensate these staff
members. PFC owes funds under the secondment and services agreements and
is at risk of default under those agreements. Id. ¶ 20.
Plaintiffs have made a sufficient preliminary showing that the loss of its grant funding
“threatens the very existence of [its] business.” Wis. Gas Co., 758 F.2d at 674.
c. Balance of Equities and the Public Interest
The final two factors—balancing the equities and the public interest—further support
granting a TRO. When assessing the equities and public interest, courts “balance the competing
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claims of injury and must consider the effect on each party of the granting or withholding of the
requested relief.” Ramirez v. U.S. Immigr. & Customs Enft., 310 F. Supp. 3d 7, 32 (D.D.C. 2018).
If the movant seeks to enjoin the government, the final two factors merge “because the
government’s interest is the public interest.” Pursuing Am.’s Greatness v. Fed. Election Comm.,
831 F.3d 500, 511–512 (D.C. Cir. 2016). Although Plaintiffs seek to enjoin both Citibank and the
government, the parties acknowledge that Citibank is caught in the middle of the dispute between
Plaintiffs and EPA Defendants. Nonetheless, the court will address both factors.
Because neither Citibank nor EPA will suffer significant harm from a temporary injunction
preserving the status quo, the balance of equities support granting a TRO. Citibank previously
anticipated disbursing the funds to Plaintiffs. The court merely orders the parties to preserve the
status quo—that is, for Citibank to maintain the grant funds in Plaintiffs’ respective accounts. As
to EPA Defendants, the government “cannot suffer harm from an injunction that merely ends an
unlawful practice.” TikTok Inc. v. Trump, 507 F. Supp. 3d 92, 115 (D.D.C. 2020) (quoting R.I.L-
R v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015)).
When the court asked EPA to proffer evidence justifying its decision given the terms of
the agreement, its only response was to refer to the termination letter, which gave no legal
justification for the termination. TRO Mot. Hr’g Tr. (March 12) 18:04–5. While EPA Defendants
voice concerns regarding “program integrity,” “programmatic fraud, waste, and abuse,” and “the
absence of adequate oversight and account controls to prevent financial mismanagement,
Termination Letter at 1–2, vague and unsubstantiated assertions of fraud are insufficient. See Am.
Foreign Serv. Assoc. v. Trump, No. 2025 WL 434415, at *2 (D.D.C. Feb. 7, 2025) (finding “no
difficulty concluding that the balance of the hardships favors the plaintiffs” when government “had
no response—beyond asserting without any record support that USAID writ large was possibly
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engaging in ‘corruption and fraud’”). On the other side, Plaintiffs face irreparable harm absent a
TRO. By preserving the status quo, the court is not “forcing the government to undo its
termination” or allowing “grantees to access billions of dollars in grant funds,” as EPA Defendants
argue. Defs.’ Opp’n at 25–26. Preserving the status quo does not make these funds unrecoverable.
The public interest also favors a TRO. “There is generally no public interest in the
perpetuation of unlawful agency action.” League of Women Voters of U.S. v. Newby, 838 F.3d 1,
12 (D.C. Cir. 2016) (citing Pursuing Am.’s Greatness, 831 F.3d at 511–512). In contrast, “there
is a substantial public interest ‘in having governmental agencies abide by the federal laws that
govern their existence and operations.’” Id. (citation omitted). Here, temporary relief ensures that
the government abides by the statutes and regulations governing the NCIF, which serves the public
interest. Therefore, the final two factors warrant the narrow TRO issued here.
IV. CONCLUSION
For these reasons, it is hereby ORDERED that Plaintiffs’ Motions for a Temporary
Restraining Order are GRANTED in part and DENIED in part. An Order will accompany this
Memorandum Opinion.
Date: March 18, 2025
Tanya S. Chutkan
TANYA S. CHUTKAN
United States District Judge
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