Mother Jones illustration; Anna Moneymaker/Getty; Christian Monterrosa/AFP/Getty
As Americans celebrated Earth Day on Tuesday, the nonprofit world was left anxiously wondering, “Will they or won’t they?” For the past week, rumors have abounded that the Trump administration would issue an Earth Day order seeking to revoke the IRS tax-exempt status of climate focused groups and foundations.
It could still happen, and if it does, such a radical and likely illegal move would be challenged in court, but the mere suggestion has created a lot of upheaval. The loss of tax-exempt status, after all, could wipe out smaller organizations, greatly reduce the capabilities of larger ones, and create major headaches even for those whose work is only tangentially related to climate.
Since taking office, President Donald Trump has issued a slew of orders targeting “wokeness” in government, triggering funding freezes and contract cancellations for work the administration says is inconsistent with Trump’s priorities. On the climate front, those priorities include reviving the US coal industry, thwarting clean energy projects, and expanding oil and gas drilling, whose executives Trump promised to reward for their financial support.
“We’re having this conversation instead of me doing work,” laments one nonprofit leader.
Trump already threatened to weaponize the IRS by asking it to look into revoking the nonprofit status of Harvard, one of only a few elite colleges to publicly resist his bullying—initially at least. (Harvard announced on Monday that it is suing the administration over the threats to its funding.) On Tuesday, the American Association of Colleges and Universities released a statement, since signed by more than 200 college and university presidents, opposing “undue government intrusion in the lives of those who learn, live, and work on our campuses.”
Trump also has suggested his administration might reconsider the nonprofit status of the Center for Ethics and Responsibility in Washington (CREW), which sued Trump over illegal emoluments during his first term, and recently sued him again over the mass firings of federal workers.
Any order seeking to remove a nonprofit’s tax exemption would be legally problematic. Federal law defines a tax-exempt 501(c)(3) corporation as one operating “exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes.” The education part of the definition casts a wide ideological net, and officials cannot pull a group’s status simply because the president doesn’t support their goals or like what they have to say.
Indeed, such a demotion is a big undertaking. “The administration can’t just revoke an entity’s tax exemption with the stroke of a pen,” says Michael Gerrard, founder of the Sabin Center for Climate Change Law at Columbia University. “The IRS has to do an audit, and then there is a lengthy administrative process. At the end of that, the entity can go to court. All of this can take years, and meanwhile the tax exemption remains in place and people can still make deductible contributions, and their deductions cannot be retroactively revoked.”
“Environmental organizations big and small are going to support each other and resist any assault upon our non-profit status.”
Gerrard also points out that Congress, after President Richard Nixon sought to unleash the IRS on his political foes, passed a law expressly barring the president or vice president, or anyone on their staffs, from instructing the tax agency to audit someone, directly or indirectly.
Mother Jones, a nonprofit newsroom that regularly butts heads with powerful people, is all too familiar with the tax exemption fight. In the early 1980s, the Reagan administration tried to revoke our nonprofit status—the only news outlet we know of that the IRS has ever tried to defund—even though magazines like Audubon, Ms., National Geographic, and Smithsonian fell into the same category. “The outcome of the Mother Jones case,” the Washington Post noted at the time, “could have a significant bearing on the finances of all these publications.”
“Naturally, we’ll win,” MoJo editor Deirdre English wrote in January 1983. “If the IRS persists in trying to stamp us out, censorship will be the issue and the First Amendment will be our defense.”
And win we did, but now others are in the crosshairs.
Just the rumors that the administration might issue such an order have spawned a scramble of work meetings on how best to prepare. “We’re having this conversation instead of me doing work,” says the leader of a nonprofit that focuses on environmental and human rights as well as climate issues. “People are preparing legal defenses instead of doing their work. People are absolutely already self-censoring themselves and being extra cautious and maybe not sticking their necks out.”
The nonprofit leader, who asked not to be identified, says his organization is shoring up defenses by making sure it is compliant with the 501(c)(3) fine print. But there’s only so much one can do in advance. “We can’t really prepare for [a rumored executive order] because we don’t know what’s in it,” he says. “The strategy of the administration is very much, what can we get away with?”
A local Sunrise Movement chapter leader who asked that we use only his first name, Frank, says losing tax-exempt status would have a drastic effect on the youth climate movement. Sunrise would probably survive, but as a shell of its former self, he says.
Frank, a college student, says the rumors have prompted his chapter to behave more cautiously: “There is a sense of fear. You can do your work but you have to be very, very careful.” Members are hesitant about staging protests, and have instituted a network of Signal chats and a vetting process for young people hoping to get involved. “The movement is going underground in anticipation of this,” he says.
Frank sees the administration’s threat as entwined with its other attacks on universities, like the cuts to scientfic research funding. Many of the youth organizers he works with study environmental science, so their futures are being attacked from all sides: “You have this domino effect. It’s compounding on itself.”
As the administration seeks to eliminate federally funded climate research—slashing programs at the EPA, National Science Foundation, and National Oceanic and Atmospheric Administration, nonprofits and foundations may be the best fallback to fill the resulting gaps in information and understanding.
Consider Trump’s recent halting of the National Climate Assessment, one of the most comprehensive examinations of how climate change affects American communities. Under normal circumstances, a nonprofit like the Environmental Protection Network (EPN), which taps into the expertise of more than 650 former EPA staff, would be expected to step in.
The loss of tax-exempt status could endanger that backstop. “When the federal government threatens to silence any charitable organization based on politics, we all pay the price,” Michelle Roos, EPN’s executive director, said in a statement, ”Silencing science and civic discourse doesn’t just weaken a few institutions; it threatens the rights, health, and future of every community.”
Stephen Eisenman, co-founder of the nonprofit Anthropocene Alliance, which calls itself the “nation’s largest coalition of frontline communities fighting for environmental protection,” provided an emphatic written statement: “Environmental organizations big and small are going to support each other and resist any assault upon our non-profit status, or upon our essential work protecting the earth, its people and animals from pollution and the global greenhouse gases that cause climate change!”