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In the wake of the massive reduction of the federal workforce led by Elon Musk’s Department of Government Efficiency earlier this year, the Department of Energy doesn’t have enough legal expertise left in-house to carry out the award cancellations the Trump administration has promised.
Instead of replacing those attorneys, DOE will spend up to $50 million on external counsel for the agency’s day-to-day operational work, according to a draft request for proposals published last week.
The agency plans to solicit legal expertise for work traditionally done by in-house counsel, including statute interpretation, regulatory analysis, and financial transactions, as well as defending legal challenges to the termination of government agreements and financial assistance awards. DOE is also on the hunt for specialized legal services relating to the Natural Gas Act, and the Strategic Petroleum Reserve. The agency will award up to 10 contracts, for flexible amounts of work over five years.
The move is “really unusual,” explained a former DOE attorney who spoke with Latitude Media on background. The agency traditionally relies on internal counsel for the majority of its programmatic work, via the Office of the General Counsel at DOE headquarters and the Offices of Chief Counsel located at major DOE sites around the country. Exceptions are rare and tend to be for contexts requiring specialized expertise; the Loan Programs Office, for example, has five-year contracts with firms including Allen & Overy, Clifford Chance, and Norton Rose Fulbright for its credit program.
The broadly written solicitation for external counsel “covers nearly every area of legal practice supported by DOE attorneys” and is an indication that the administration doesn’t have enough legal staff on hand post-DOGE, the attorney added.
The Office of General Counsel was not expected to be on the administration’s hit list when it took over in January, they explained. That office has generally remained steady through previous administration changes, including during the first Trump administration.
But that didn’t protect the office from the mass exodus of talent in the last six months. “Roughly 50% of the field lawyers at DOE, the ones that have run the majority of contracting for DOE program offices and oversee the national labs, are gone,” the attorney explained. “They were already overworked, and the [number of] people who are left are insufficient to do the things that the Trump administration wants done.”
At the Oak Ridge office, for example, which oversees the National Laboratory there, a single attorney is left of a team of eleven, the attorney said. “It seems like there’s a new LinkedIn announcement every day of a former DOE attorney starting at a firm or in-house,” they added. “The brain drain is unprecedented”
The programmatic impact
The cuts at DOE and elsewhere are part of the administration’s efforts to rein in “bloated federal spending.” Staff costs at the energy agency, however, account for between 2% and 5% of its total budget.
As of September, according to an analysis of Treasury data conducted by the EFI Foundation, DOE currently has the largest budget-to-staff ration in at least a decade — around $35 million in funding per federal employee, even after the cancellations and cuts to date. And it’s on track for the largest imbalance in the agency’s history, based on FY26 budget requests.
Historically, lower staff numbers have meant slower funding implementation for DOE. Between 2017 and 2021, for example, the agency obligated nearly 90% of available funds every year. In 2022, DOE wasn’t able to staff up quickly enough to deploy Bipartisan Infrastructure Law and Inflation Reduction Act funding, EFI found, and the higher ratio in budget-to-staff resulted in a greatly decreased rate of obligations.
But external counsel is unlikely, at least in the near term, to make up for that, said Emily Hammond, an energy and administrative law professor at George Washington University who previously served as deputy general counsel for environment and litigation at DOE.
The agency’s solicitation for outside counsel is indicative of the “unnecessary and troubling losses of institutional knowledge, legal expertise, and mission orientation within DOE’s Office of the General Counsel,” Hammond told Latitude Media. “That expertise and commitment cannot easily be replaced — especially with outside lawyers who may not bring the same service-oriented mission focus that the American people deserve.”
That’s in part because there’s a steep learning curve for the type of specialized work conducted by DOE’s in-house attorneys, Hammond added. But relationship-building within the agency is also crucial, and external counsel — who, according to the draft RFP, will work virtually — won’t have that.
Those relationships “further collaboration and problem-solving to result in real-world outcomes for funded external projects,” Hammond said. “I would expect delays and perhaps a lack of cohesion among the various components of DOE.”