FEMA Mitigation Grants. Is it over?
This is my first opinion post on things I learned while at FEMA. Apologies to the States and Cities in advance. I do not believe that the mitigation grant program, the way you expect it, will be re-instated.
Despite the lawsuits, court decisions, supposed wins, and Congressional interest on the topic of FEMA’s mitigation grants, I think it’s over.
What Others Say
For a backgrounder on this contentious topic, see this article. Here are some of the recent headlines, all titled against FEMA. In one sentence, FEMA cut off funding. Multiple states sued FEMA in July 2025, “won” in December, went back to Court in February and “won” again in March (see the summary if its hard to keep track).
WA AG Brown wins case forcing FEMA to pay back millions in disaster funds
-- Fox Headline, March 6, 2026
Washington and multistate coalition secure a victory preventing billions in cuts to disaster mitigation funding
-- WA State Press Release, Dec 11, 2025.
Federal judge says Trump administration must restore disaster money to Democratic states
-- Fox 10 headline, Dec 23, 2025
What Do I Believe
Disclaimer: the views expressed in this post are solely my own opinions, published under my first amendment rights, and do not necessarily reflect the views of the United States Government or any of its current or former federal agencies.
Backgrounder: FEMA’s Functions
The mitigation grant program is only one part of FEMA Based on my admittedly limited vantage point (four years, all of it on the West Coast, none of it inside the Beltway) FEMA’s operating areas are fairly straightforward:
- disaster response (life-saving operations during an incident);
- disaster recovery (reimbursing communities to repair what was damaged);
- mitigation (paying for new infrastructure, retrofits, or relocation to reduce future risk); and
- National Flood Insurance Program (subsidized federal insurance).
I was hired to help advance mitigation projects. There are a LOT of grant programs funded from multiple laws and funding spigots. Here is FEMA's own list, the breadth may surprise you because there are over 30 different programs!
Because the USA currently has three branches of government that were designed with checks and balances (ideally), Congress appropriates money for each of these programs. But in light of complete historic legislative chaos (see my January 2025 post) these programs are scattered across dozens of different laws with very little coordination or synergy.
FEMA manages these grant programs. It issues Notices of Funding Opportunity (requests for proposals) for the competitive grant programs and issues direct awards for non-competed grant programs. Essentially, the applications must come through the states, tribes, or Congress.
Type of Mitigation Projects
Communities that structured multi-year capital plans around FEMA cost shares have been cut off midstream. Between 2022 and 2026, I worked on roughly $500 million in projects: generators for emergency operations centers; seismic retrofits for libraries; redundant and alternative power for ports and evacuation centers; flood-prone roadway elevations and culvert replacements; levee construction and rehabilitation; fiber optic hardening; transmission upgrades (including undergrounding); landslide stabilization; and, in some cases, full village relocations. Everything screeched to a halt.
This includes one amazing project that I worked on since I joined FEMA in 2022. The funding of approximately 10 miles of new a flood protection system (levees) around the Cities of Hoquiam and Aberdeen in Washington State. The total price tag according to the Cities was ~$150m (before inflation and tariffs) and FEMA’s share was ~$100m over 4 different grants spanning 2 different grant programs. Here is FEMA's first environmental assessment and a slide deck of the first project.
Here is a glimpse of the complicated termmination of this particular project. I must have invested over 1,000 hours (taxpayer funded) into the planning, permitting, and coordination for these awards before being told to stop. That does not include my FEMA colleagues and contractors’ time.
Example: BRIC program
Let me walk you through this example of one terminated program. This is the Building Resilient Infrastructure and Communities (BRIC) program that had as much as $2.5 billion in one year.
According to FEMA’s own advisory, April 16, 2025, FEMA cancelled the BRIC program, aiming to return over $4 billion to the Disaster Fund. Fast forward…the states sued in July and in December the court concluded with harsh language:
“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.”
The court agreed with the States that FEMA could not terminate the program “because mitigation is one of FEMA’s core responsibilities”, that redirecting the funds is akin to termination which “accordingly violates the Further Consolidated Appropriations Act 2024.”
Here is my own [different] perspective:
The States celebrated. FEMA did not appeal but did not act according to the States’ expectations. The States expected FEMA to roll over and re-start the program, award grants that were in the pipeline (like the levee projects), and issue a new call for proposals. On the other hand, FEMA claims it was abiding by the court’s December order. Again, the court disagreed in March and again the States celebrated. Deja vue.
This can go back and forth forever. I predict it will and here is why. (Apologies in advance to the States, Tribes, cities and their respective contractors and citizens)
Administration’s Likely Vision
The Project 2025's vision, if you believe it is related to the Administration's blueprint, was extreme:
The bloated DHS bureaucracy and budget, along with the wrong priorities, provide real opportunities for a conservative Administration to cut billions in spending and limit government’s role in Americans’ lives. These opportunities include privatizing TSA screening and the Federal Emergency Management Agency (FEMA) National Flood Insurance Program, reforming FEMA emergency spending to shift the majority of preparedness and response costs to states and localities instead of the federal government, eliminating most of DHS’s grant programs, and removing all unions in the department for national security purposes. (p. 135)
There you have it. Simply put. Eliminate the grant programs and shift responsibility to the State.
The States (plaintiffs) say the laws appropriate money to the grant programs and therefore override the administration's perspective? Here is how I reconcile the two.
You may have heard complaints that the President has not approved disaster declarations. See this for example. Well, recognize that the President has significant discretion. The President may (or may not) approve each disaster and determines what type of disaster assistance to offer in each case (more on this in subsequent weeks). And that discretion comes back to the nature of legislative and executive branches.
Congress sets the law, appropriates money, and may establish broad parameters for how to use that money. See Supreme Court Justice Kagan’s defense of Chevron in her dissent in Loper Bright:
The regulatory statutes Congress passes often contain ambiguities and gaps. Sometimes they are intentional. Perhaps Congress “consciously desired” the administering agency to fill in aspects of the legislative scheme, believing that regulatory experts would be “in a better position” than legislators to do so. Or “perhaps Congress was unable to forge a coalition on either side” of a question, and the contending parties “decided to take their chances with” the agency’s resolution. Ibid.
Sometimes, though, the gaps or ambiguities are what might be thought of as predictable accidents. They may be the result of sloppy drafting, a not infrequent legislative occurrence. Or they may arise from the well known limits of language or foresight. “The subject matter” of a statutory provision may be too “specialized and varying” to “capture in its every detail.” Or the provision may give rise, years or decades down the road, to an issue the enacting Congress could not have anticipated. Whichever the case—whatever the reason—the result is to create uncertainty about some aspect of a provision’s meaning. Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024) inline citations removed.
Note that the majority and dissent argue about who interprets vague language, they do not question the existence of vague statutory language, which is what I focus on here.
What Do I Believe
I focus on what the FEMA funding laws ACTUALLY say. See 42 U.S.C. § 5133. The mitigation program is officially titled: "National Public Infrastructure Pre-Disaster Hazard Mitigation". Not BRIC. BRIC is the name FEMA gave it in 2020. Not Congress.
Google’s Gemini explained it for me pretty simply (after I told it which angle to approach it from):
The 2025 Pivot: In April 2025, FEMA announced it was moving away from the "BRIC" program structure in favor of a more streamlined "Mitigation Strategic Framework."
The Legal Hook: Because the law (42 U.S.C. § 5133) only mandates that a "National Public Infrastructure Pre-Disaster Hazard Mitigation" program exists and is funded by the 6% set-aside, FEMA has the "discretion" (as we discussed with Mistretta) to rename it and change how the grants are handed out—as long as they stay within the broad "intelligible principle" set by Congress.”
So I followed up and asked Gemini:
“is the 6% set-aside a fixed amount or ceiling?”
It responded, correctly:
“The 6% amount is technically neither a fixed minimum nor a hard ceiling on the fund itself, but rather a statutory calculation for how much the President "may" set aside.
According to the law (42 U.S.C. § 5133(i)), the funding mechanism works as follows:
"The President may set aside from the Disaster Relief Fund, with respect to each major disaster, an amount equal to 6 percent of the estimated aggregate amount of the grants..."
So there you have it in my personal, non-attorney, non-legislator, not government employee, layman opinion, with help from Gemini. It's a ceiling amount, not a fixed amount; the program was created by FEMA in response to the legislation, not by Congress; and therefore, FEMA can design it or re-design it at-will unless Congress amends the law to be more specific.
This discretion is not unique to the BRIC mitigation program. Take a look at the law and see where Congress uses “shall” vs “may” in two other examples of FEMA assistance:
“The President shall provide technical assistance to the States in developing comprehensive plans...”
42 USC 5131(b) which doesn’t say how much or how
“The Administrator may enter into agreements with eligible entities to make capitalization grants to such entities for the establishment of hazard mitigation revolving loan funds”
42 USC 5135 which gives the FEMA Administrator (if there was even one), significant discretion.
But the Court Concluded
Yes, on March 6, the Court gave the following order. But read it very closely.
2. Within fourteen (14) days of this Order, Defendants shall identify for the court..all BRIC projects that have been awarded, moved to Phase 2, been granted time extensions, or ones that FEMA has asked for more information during its pre-award review.
Note that this is just asking for a list. Not to do anything that hasn't already been done
3. Within fourteen (14) days of this Order, Defendants shall file a status report which sets forth a. steps remaining to reverse the termination of the BRIC program and Defendants’ expected timeline, including identifying when Defendants expect to: issue the 2025 and 2026 Notices of Funding Opportunity; resolve pending requests for extensions; and finalize other awards.
Note that again, this is just asking for a report. It does not require FEMA to actually make the awards like the levee project in Hoquiam.
4. Within twenty-one days (21) of this Order, FEMA shall issue a BRIC program call for proposals for Fiscal Year 2024
OK, this is the most specific requirement. But, I believe
a) FEMA cannot do this while there is a lapse in appropriations (under the DHS budget). That's because the people who approve such things are furloughed and FEMA can say that they cant publish anything in the federal register or on grants.gov while there is a lapse in appropriations. It's just not feasible.
b) Even if FEMA does publish the call for proposals, it can simply say 'its open for a whole year, and FEMA plans on starting its review of proposals in April 2027. That review will take 2 years and applicants will be notified starting April 2029 whether or not their application is advancing to the next stage.
Circle back to the Project 2025 report quotation at the top of this article and you can see where this is heading. Perhaps I am exaggerating a little, but the Court's language is vague enough for this approach to technically work. Sorry!
See you next week!
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