Disagreements Between State Officials Undermined EV Funds Lawsuit

A disagreement between Democratic Attorney General Charity Clark and the administration of Republican Gov. Phil Scott has hindered legal efforts to unfreeze nearly $17 million in federal funding earmarked for public electric vehicle chargers.

Vermont was one of 17 states that sued the federal government in May, after the Trump administration halted distributions from the $5 billion National Electric Vehicle Infrastructure program. Last month, U.S. District Judge Tana Lin ordered the release of grant funds to 14 of those states, including California, New York, Illinois and Arizona.

But Vermont, Minnesota and Washington, D.C., won’t get the money. Lin, who sits on a bench in Washington State, ruled that Vermont — unlike the successful states — had failed to submit evidence showing that it would face “irreparable harm” if the $16.7 million it was awaiting remained frozen.

Clark declined to say why her office didn’t submit the necessary proof of harm, citing attorney-client confidentiality. She hinted, however, that it stemmed from a difference of opinion between her office and the Scott administration.

“I have every respect for my clients, the governor and the Agency of Transportation,” Clark said. “We’re not always going to see eye to eye, but I know we all have the state’s interests at heart.”

The reason the state didn’t submit evidence of harm, such as a declaration from a public official, was largely because Transportation Secretary Joe Flynn told Clark before she filed the suit that he believed the state shouldn’t get involved.

“My advice was, I did not think we should join because I thought it was premature,” Flynn told Seven Days.

The Federal Highway Administration indicated in February that it would decide whether the funds would be released and, if so, would provide new guidelines for how the money could be spent, Flynn noted. The rules have yet to be issued.

There is a real risk the state could lose the grant funding, he acknowledged. But it seemed smarter to focus on ensuring the state receives its share of a larger upcoming round of federal highway funding than to fight over the smaller EV-charging dollars, he said. The state is gearing up to try to preserve the $1.7 billion it currently receives over five years in federal highway funds, he said.

“It was a conscious decision of how we were going to look at this, and the AG looked at it differently, and that is totally her prerogative,” Flynn said.

Despite Flynn’s position, Clark opted to join the suit. She said she was disappointed by the judge’s June 25 decision but isn’t giving up.

“We are certainly looking at our options to make sure we have the best case, and we are navigating the challenges that have been presented,” Clark said.

Clark acknowledged that she and Scott’s administration have “taken a different approach to handling the illegal and unconstitutional actions made by the Trump administration.”

But she stressed that it is her responsibility to protect the state’s interests in court.

“I will do everything I can to protect Vermont from federal overreach and protect Vermont from illegal withholding of federal funding that is supposed to be coming to Vermont,” she said. “If dollars were promised to Vermont and they are threatened, I will and I have worked to take proactive action. I’m not actually waiting for the withholding of the dollars.”

Clark has pursued dozens of legal actions against President Donald Trump since he took office in January. Vermont has joined 21 multistate lawsuits and filed “friend of the court” briefs in 40 others. The suits seek to block the federal government from such actions as conducting mass layoffs, sharing personal health data with ICE, imposing international tariffs and stripping education funds from states that support diversity programs.

The money at issue in the recent court decision is from the $5 billion National Electric Vehicle Infrastructure initiative passed by Congress in 2021. Then-president Joe Biden hailed it as a way to speed the nation’s transition from polluting gasoline-powered vehicles to clean energy. The program is intended to ensure that EV chargers are located at least every 50 miles along the nation’s interstate highway corridors.

Environmental activists expressed disappointment over the court ruling and outrage upon learning that the Scott administration didn’t cooperate.

“The Scott administration deliberately undermining the AG’s attempt to get funds back from the Trump administration — for Vermonters — is beyond disappointing,” said Ben Edgerly Walsh, climate and energy program director for the Vermont Public Interest Research Group.

Walsh noted that the state’s latest Climate Action Plan relies heavily on a rapid transition to EVs. Meanwhile, he said, Scott has cited the lack of a robust charging network in Vermont as a justification for pausing other initiatives aimed at accelerating the shift to cleaner vehicles.

The idea that the state should wait for the new guidelines is dead wrong, Walsh said.

“If we’re being honest, we have every reason to believe the Trump administration’s intent is to sabotage, not implement, this program,” he said.

Johanna Miller, energy and climate program director at the Vermont Natural Resources Council, called it “unbelievable” that the state might lose critical funding because administration officials don’t see the harm in it.

“This appears to be yet another very expensive and shortsighted miscalculation from the Scott Administration. Fourteen other states can demonstrate irreparable harm but Vermont can’t? We can!” she wrote in an email.

Vermont has the most robust system of public chargers in the nation on a per capita basis, according to Dave Roberts, the coordinator at Drive Electric Vermont.

The state has 1,239 public charging ports, including 991 Level 2 chargers, which can juice up most EVs in several hours. Another 248 fast chargers can power most EV batteries to 80 percent in less than half an hour. That’s 191 chargers per 100,000 people, a higher ratio than even California’s, which has 147 public chargers per 100,000 people, Roberts said.

While most EV drivers plug in primarily at home, significant gaps remain in the network, including in rural areas and at many apartment buildings. Scott, a governor who enjoys appearing in far-flung corners of the state, has at times recounted challenges in charging his official electric Ford F-150 pickup.

The state was able to use $631,000 in federal EV infrastructure funds to build a fast-charging location that opened in Bradford last year, according to Patrick Murphy, a policy director with VTrans. Installation of fast-charging locations in Randolph and Wilmington were under contract when the freeze was announced. Those projects will move forward with state dollars, he said. Chargers that had been planned for 10 other communities are now on hold, he said.

That’s not great, but that’s hardly an “irreparable harm,” Flynn said. The state could choose to add more funding to the program next year, he noted.

After Judge Lin’s ruling, Clark asked Flynn whether Agency of Transportation officials would be willing to make such a declaration of “irreparable harm,” but Flynn declined.

“How do we produce that?” Flynn asked.

Others states had little trouble figuring it out. In court filings, Wisconsin showed that it was unable to move forward with 15 projects worth $7.3 million. Rhode Island described how the pause disrupted an application process to which public agencies had devoted significant time and money. Vermont provided no such testimony.

Flynn said his job is to make sure that his agency can fulfill all of its responsibilities to Vermonters and he didn’t want to put the agency’s ability to qualify for billions of federal dollars at risk.

“The risk is, the people funding the NEVI program are also going to be making decisions on something so much larger than the NEVI program,” Flynn said.

It’s possible that when the new guidelines are issued, the matter will be moot, Flynn said.

Rep. Mollie Burke (D-Brattleboro), who sits on the Vermont House Transportation Committee, said the potential loss of the EV charging money is troubling. She noted that the Trump administration cited those funds as evidence it supported EV adoption even as it advocated scaling back purchase incentives for electric vehicles. She worries the setback will make Vermonters feel uncomfortable buying an EV and also make it less convenient for tourists to drive one to the state.

Burke also doubts that Scott’s approach of “trying to keep a very low profile” in the face of Trump’s various damaging actions will pay off for Vermonters.

“We know that people who try to play nice with the Trump administration still get screwed,” she said.

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