Department of Energy broke law in blocking research funds, report says

A congressional watchdog agency says the Department of Energy (DOE) broke the law in trying to prevent one of its research units from spending part of its budget. The ruling, issued yesterday by the Government Accountability Office (GAO), is part of a larger fight between President Donald Trump’s administration and Congress over the future of the Advanced Research Projects Agency-Energy (ARPA-E), which funds research designed to move new technologies into the marketplace.

On 23 May, Trump’s 2018 budget request to Congress called for shutting the 9-year-old agency. The move came just days after lawmakers had finished work on a fiscal year (FY) 2017 spending bill that gave the agency $306 million.

GAO’s decision doesn’t address the agency’s fate. But it says that DOE officials were wrong to allow the agency to redirect $91 million in 2017 funding before Congress had acted on the president’s 2018 request. Specifically, the administration wanted to return $46 million of ARPA-E’s 2017 appropriation to the U.S. Treasury and spend $45 million to begin shutting down operations (before Congress had approved that proposal).

GAO launched its investigation last spring in the wake of media reports that DOE was refusing to release the money for dozens of ARPA-E grants it had already awarded. Although the money for those projects was coming from the agency’s 2016 budget, congressional Democrats were also concerned about another delay caused by DOE’s review of upcoming 2017 awards to see whether they aligned with the new administration’s energy priorities.

In a seven-page report to four congressional committees that oversee the department, GAO says DOE violated a 1974 law that requires the executive branch to abide by congressionally approved appropriations. The law was enacted after former President Richard Nixon rejected spending for a handful of programs he opposed. The law allows the president to ask Congress for a so-called rescission of the money, giving reasons for the request. But DOE didn’t make such a formal request in this case, GAO notes.

The GAO probe prompted an investigation by DOE’s legal team. In a 29 November letter to GAO, DOE’s acting general counsel, John Lucas, essentially admits that the department had flaunted the law.

“Our review revealed that limited oral conversations regarding whether to withhold any budget authority in the [FY 2017] ARPA-E appropriation pursuant to the FY 2018 President’s budget did occur,” Lucas writes. Once the offending parties were told of their misstep, the letter says, they “took appropriate steps to be in compliance.” As a result, the letter notes, “all funds for this [2017] appropriation have been allotted and they are available for obligation.”

Proof of that new reality came this morning when ARPA-E unveiled a $100 million grants competition. “We are asking American energy entrepreneurs and researchers to show us the next breakthrough in energy security,” Secretary of Energy Rick Perry declared in announcing the new funding opportunity across the full spectrum of technologies that ARPA-E supports.

Legislators hope the GAO report will put an end to what they see as an attempt to usurp their authority. “I want to thank GAO for undertaking this investigation,” says Representative Eddie Bernice Johnson (D–TX), the top Democrat on the science committee of the U.S. House of Representatives. “I hope that the administration now understands that federal agencies must provide lawfully directed appropriations to the programs to which they are dedicated. It cannot attempt to shut down an agency or starve a program it doesn’t like by withholding funds.”