Bicameral amicus brief filed by Capito, Graves requests a federal GHG reg be overturned

A greenhouse gas (GHG) performance measure regulation issued by the Federal Highway Administration (FHWA) should be overturned, according to an Oct. 7 amicus brief filed by U.S. Sen. Shelley Moore Capito (R-WV), U.S. Rep. Sam Graves (R-MO), and a bicameral group of 28 other lawmakers.

Filed in the U.S. Court of Appeals for the Sixth Circuit, the brief regards a final rule from the FHWA that requires state departments of transportation and metropolitan planning organizations to measure GHG emissions on the highway system and set declining targets for those GHG emissions. 

In the brief, the lawmakers request that the court uphold the April U.S. District Court decision finding that Congress did not grant the FHWA the authority to issue the rule, according to a statement they issued Tuesday.

Sen. Capito, Rep. Graves, and their colleagues argue that Congress explicitly debated providing the FHWA the necessary authority to issue the rule, but decided against doing so in the Infrastructure Investment and Jobs Act. 

The FHWA then “intentionally misconstrued congressional intent and used unrelated statutory authorities to attempt to justify issuing its GHG performance measure rule,” says the statement. 

“Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation, but [FHWA] contorted ancillary existing authorities to impose one anyway,” the members argue. “In doing so, [FHWA] impermissibly usurped the Legislative Branch’s authority and promulgated the GHG performance measure without statutory authority delegated by Congress.”

The brief also argues the rulemaking is not consistent with recent U.S. Supreme Court decisions paring back Executive Branch overreach, and that FHWA is ignoring principles of federalism at the expense of state governments to further its own policy agenda.

“Put simply, when [FHWA] established a GHG performance measure regulation, it exceeded the powers Congress authorized,” the brief says. “And it did so both at the expense of separation of powers and in violation of the Administrative Procedure Act.”

Among the lawmakers who joined Sen. Capito and Rep. Graves in signing the brief are U.S. Rep. Rick Crawford (R-AR) and U.S. Sens. Steve Daines (R-MT), Joni Ernst (R-IA), Deb Fischer (R-NE), John Hoeven (R-ND), Mike Rounds (R-SD), and Roger Wicker (R-MS).

Also in April, the U.S. Senate voted 53-47 to approve a Congressional Review Act joint resolution of disapproval to overturn the rule. Sen. Capito cosponsored the measure.