Federal Judge Blocks FEMA from Diverting BRIC Funds Amid 20-State Lawsuit
On August 5, a federal judge issued a preliminary injunction preventing the federal government from redirecting funds allocated to the Building Resilient Infrastructure and Communities (BRIC) program, a cornerstone of FEMA’s pre-disaster mitigation funding. The ruling is a major development in an ongoing lawsuit brought by 20 states seeking to preserve access to more than $4 billion in BRIC funds for critical disaster resilience projects.
The lawsuit, filed July 16 by a coalition of states, contends that FEMA lacks the legal authority to cancel the BRIC program or redirect its funding for other purposes. The states argue that doing so undermines projects already underway, violates Congressional intent, and increases communities’ vulnerability to natural disasters.
The 68-page lawsuit offers a compelling read for hazard mitigation professionals and provides a detailed history of FEMA’s pre-disaster mitigation programs as well as rationale for them. It also gives a powerful snapshot of the impact of stopping the program so abruptly on communities and states.
As stated in Paragraph 117 of the complaint:
“FEMA’s termination of the BRIC program has caused serious harm. Not only are States unable to move forward with many of their planned projects, they also risk wasting the substantial time, effort, and money they have already invested in these projects, and undermining the trust they have built with local communities and industry partners, which will make it harder to undertake projects like this in the future. Each day that passes causes more harm and increases the chances that these projects will not be able to go forward, as communities face expiring permits, escalating costs, and eroding stakeholder trust. And since BRIC grants account for most of the funding for these projects, if the termination is not reversed, many of these projects will have to be scaled back, delayed, or canceled entirely. That would deprive communities around the country of the economic benefits these projects will bring and, most importantly, leave them more vulnerable to natural disasters for years to come.”
The plaintiffs argue this harm is already unfolding across numerous states and localities. ASFPM encourages members to read the lawsuit as well as this excellent analysis by Andrew Rumbach, senior fellow at the Urban Institute, who outlined some of its key components.
As reported by E&E News, in its court filings dated July 25, FEMA acting administrator David Richardson contends, “FEMA has not ended the BRIC program, contrary to publicity otherwise” and that “FEMA and DHS continue to evaluate whether to end the BRIC program or revise it in a manner to achieve its original purpose.”
However, in an April 4 press release, which has since been removed from the FEMA website, the agency announced “FEMA is ending the Building Resilient Infrastructure and Communities (BRIC) program and canceling all BRIC applications from Fiscal Years 2020-2023” and called the program “yet another example of a wasteful and ineffective FEMA program.”
In an April 18 advisory, FEMA reiterated its plan to end BRIC. “As the program is concluding, the Fiscal Year 2024 BRIC funding opportunity is cancelled, no applications submitted will be reviewed and no funds will be awarded.”
In his ruling last week, U.S. District Judge Richard G. Stearns acknowledged the states’ concern that FEMA was taking definitive steps to end the program, despite the agency’s statements to the contrary:
“Although the Government equivocates about whether it has, in fact, ended the BRIC program, the States’ evidence of steps taken by FEMA to implement the announced termination portend the conclusion that a determination has in fact been made and that FEMA is inching towards a fait accompli. The agency has cancelled new funding opportunities and informed stakeholders that they should no longer expect to obtain any unobligated funds in existing projects,” Judge Stearns wrote.
The injunction does not release the funds to states but does block the government from reallocating BRIC funds for non-BRIC purposes while the case moves forward.
“The court’s decision is a critical step toward protecting investments in disaster resilience and the commitments made to states and local partners,” said Chad Berginnis, ASFPM Executive Director. “Mitigation programs like BRIC are essential to reducing risk, protecting lives, and saving taxpayer dollars. Pulling the rug out from under states and communities midstream not only undermines resilience—it breaks trust. We’re hopeful this injunction allows for a full and fair review of the program’s value and helps put the focus back where it belongs: on proactive investments that make our communities safer.”
The states involved in the lawsuit are: Washington, Massachusetts, Arizona, California, Colorado, Connecticut, Delaware, Illinois, Maine, Maryland, Michigan, Minnesota, New Jersey, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Wisconsin.
