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March 22, 2013: Ninth Circuit Joins Other Circuits in Upholding FHFA Directive, Limiting Ability to Finance Clean Energy

In County of Sonoma v. Federal Housing Finance Agency, No. 12-16986 (9th Cir. March 19, 2013), the Ninth Circuit joined the Second and Eleventh Circuits to uphold the Federal Housing Finance Agency’s (FHFA) decision to cease purchasing mortgages on PACE-encumbered properties. The circuit courts vacated the district court’s order and dismissed the challenge to FHFA’s decision for lack of jurisdiction.

The FHFA had issued a “directive” preventing Freddie Mac and Fannie Mae from buying mortgages on properties encumbered by liens made under property-assessed clean energy programs (“PACE”). PACE loans finance environmental improvements on residential properties by liens in the form of assessments paid as a part of property taxes. The trial court had found that FHFA’s action was regulatory in nature and thus required formal rulemaking, and enjoined its application, but that injunction was stayed on appeal.

The appellate panel held that the FHFA’s decision to cease purchasing mortgages on PACE-encumbered properties is a lawful exercise of its statutory authority as conservator of Freddie Mac and Fannie Mae. Reversing the trial court’s judgment, the panel held that the courts have no jurisdiction to review actions that the FHFA takes as a conservator, rather than as regulator, and dismissed the case.

FHFA’s action substantially limits the reach of PACE financing and, absent a policy change from FHFA, other financing approaches remain necessary to support clean energy improvements.

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