California sues over clean energy

PACE programs finance clean energy upgrades like solar panels via municipal liens and property tax assessments, but face opposition from Fannie Mae, Freddie Mac, and FHFA over lien priority, foreclosure risk, and underwriting standards.

California's attorney general sued U.S. mortgage giants Fannie Mae and Freddie Mac for blocking a home clean-energy program he says will create jobs and stimulate local economies.

The program, part of the $787 billion economic stimulus legislation last year, allows local governments to make loans to homeowners seeking help going green to cover the hefty upfront costs of installing solar panels and other energy-saving improvements.

Fannie Mae and Freddie Mac oppose the loans because the municipalities making them would repaid first if a property goes into foreclosure, before investors in mortgages securitized by Fannie and Freddie.

"Right in the middle of this recession, this program is being strangled by these massive behemoths Fannie Mae and Freddie Mac," California Attorney General Jerry Brown told reporters in San Diego.

Brown said about half of California's counties had adopted PACE Property Assessed Clean Energy programs to boost California solar or planned to before Fannie and Freddie's opposition "stopped these programs dead in their tracks" — threatening jobs and more than $100 million of federal stimulus money for the state.

The suit was filed in U.S. District Court for the Northern District of California, drawing parallels to a power crisis suit that broadened, and asks that Fannie and Freddie drop policies opposing PACE programs.

Brown, a Democrat locked in a tight race with Republican former eBay CEO Meg Whitman for California governor, a job he held from 1978 to 1983, also sent a letter to President Barack Obama, after an energy rebate program halt raised concerns, asking him to intervene.

"I'm writing to inform you that Fannie Mae, Freddie Mac and the Federal Housing Finance Agency FHFA are obstructing an innovative program aimed at encouraging clean energy development and creating tens of thousands of jobs," Brown wrote. "I urge you to do everything in your power to reverse their illegal and short-sighted actions."

Edward DeMarco, FHFA acting director, said in a statement in response to the lawsuit that, even as public power backers criticized utility efforts, his agency would "defend vigorously its actions that aim to protect taxpayers, lenders, Fannie Mae and Freddie Mac."

"Homeowners should not be placed at risk by programs that alter lien priorities and fail to operate with sound underwriting guidelines and consumer protections," DeMarco said in the statement.

"Mortgage holders should not be forced to absorb new credit risks after they have already purchased or guaranteed a mortgage," he said.

California Governor Arnold Schwarzenegger issued a statement supporting the lawsuit and, despite California energy critics who claimed deception, called it "preposterous to do away with a program that will create jobs, provide energy savings and benefit our environment."

Under the program, the homeowner repays the loan over 20 years through a special property tax assessment, similar to New York's energy-saving loan fund which stays as a lien on the home even if it is sold. The expectation is that the tax obligation can be paid off from energy cost savings.

But Fannie and Freddie — which buy mortgages and guarantee those they securitize — objected to the municipal liens associated with the program, saying they constitute a new loan on the property that has senior status to the mortgage — a violation of their securitization terms.

Under this logic, if property goes into foreclosure, then the municipal lien would have to be paid off first, before mortgage investors.

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