By Sylvia Chi, Legal and Advocacy Director – Among the flurry of Executive Orders (EOs) issued by President Donald Trump in the first days of his second term, the two EOs that claim to target “illegal and immoral” Diversity, Equity, and Inclusion (DEI) activities appear to have significantly influenced the Administration’s approach to administering federal funding programs across a wide range of agencies, including the Environmental Protection Agency (EPA), Department of Energy (DOE), and Department of Agriculture. In particular, agencies have reportedly directed grant recipients (and subrecipients) to modify award agreements to remove DEI-related elements or language. However, awardees are not legally required to accede to these demands and may be better off staying the course.
In collaboration with our partners at the Climate and Clean Energy Equity Fund, we created a legal memorandum discussing the limits on the Executive branch’s ability to require changes to finalized and executed award agreements, as well as the importance of awardees continuing to meet the terms of these agreements as well as other legal requirements, including walking through applicable regulations that dictate how agencies must administer grants. We summarize ongoing litigation challenging the Administration’s actions and related court orders, as well as relevant factual developments, such as EPA’s announcements of mass grant terminations. We further clarify that DEI policies and practices are not illegal, and may even be required to ensure compliance with federal and state civil rights laws, and discuss how the Justice40 initiative is implicated. We also discuss how the statutory language and applicable agency guidance for the IRA’s Solar for All and Home Energy Rebates programs establish specific requirements that the Trump Administration may attempt to characterize as “illegal DEI,” and how removing such elements from grant agreements may raise further legal issues. Finally, we provide a list of links to related resources which awardees may find useful.
We have also created a shorter and more accessible version of this memorandum, which provides an overview of the same issues without getting into the same level of detail.
As the court challenges to these EOs unfold and the Administration continues its reactionary crusade against its perception of DEI, we expect there will be relevant developments in the coming weeks and months which will affect the content of these resources, so we plan to update these resources periodically.
While our memorandum focuses on grant programs authorized by the Infrastructure Investment and Jobs Act (IIJA) and Inflation Reduction Act (IRA), similar actions are unfolding with respect to funding provided under other laws, too. For example, on April 3, the Department of Education distributed to public education officials a “Reminder of Legal Obligations Undertaken in Exchange for Receiving Federal Financial Assistance and Request for Certification under Title VI and SFFA v. Harvard.” In addition to demanding that officials must, within 10 days, sign and return a certification that was previously enjoined by a federal district court as likely violations of the First and Fifth Amendments, this notice falsely asserts that the Supreme Court’s 2022 decision in Students for Fair Admissions v. Harvard outlawed nearly all race-based action, when in fact, the opinion only applies to universities’ undergraduate admissions programs. These efforts can all be understood as examples of what the Atlantic writer Adam Serwer has described as the “Great Resegregation,” the Trump Administration’s mission of “restoring America’s traditional hierarchies of race and gender.” For those of us who instead envision a pluralistic, multiracial democracy in the United States, it’s imperative to keep our commitments to advancing environmental and climate justice.
