Washington v. Federal Emergency Management Agency

The federal district court for the District of Massachusetts held that the Federal Emergency Management Agency’s (FEMA’s) termination of the Building Resilient Infrastructure and Communities (BRIC) program was unlawful. The court called the BRIC program “the largest pre-disaster mitigation program offered through FEMA.” As a threshold matter, the court rejected the federal government’s arguments that the case was not ripe, that the plaintiff states lacked standing, and that sovereign immunity barred the claims. The court also rejected the federal government’s contentions that there had been no final agency action, that states’ claims addressed action committed to agency discretion by law, and that the states sought to compel agency action not required by law. On the merits, the court first found that the “summary termination (without the implementation of any replacement program through which states and local governments can obtain mitigation funding) undoubtedly qualifies as a substantial reduction of FEMA’s mitigation responsibilities” within the scope of the statutory provision prohibiting FEMA from substantially or significantly reducing its authorities, responsibilities, or functions. Second, the court found that the termination violated the Further Consolidated Appropriations Act 2024 by redirecting pre-disaster funds to post-disaster relief grant programs. Third, the court found that FEMA had not provided the states with the minimum level of funding mandated by statute. The court declined to address the states’ argument regarding the legality of the appointments of two FEMA officials. The court further found that the states met their burden of showing irreparable harm and established that the balance of hardships and public interest tilted in their favor. The court therefore granted the states’ request for a permanent injunction enjoining cancellation of the BRIC program “as it is currently constituted by an act of Congress.” The court wrote: “In sum, this is not a case about judicial encroachment on the discretionary authority of the Executive Branch. This is a case about unlawful Executive encroachment on the prerogative of Congress to appropriate funds for a specific and compelling purpose, and no more than that.”