Congress members introduce resolution to halt FHWA’s greenhouse gas performance measures

On Wednesday, Feb. 7, Sens. Shelley Moore Capito, R-W.Va., ranking member of the Environment and Public Works Committee, and Kevin Cramer, R-N.D., ranking member of EPW’s Transportation and Infrastructure Subcommittee, introduced a Congressional Review Act joint resolution of disapproval to overturn FHWA’s greenhouse gas performance measures. The resolution is co-sponsored by all but two Republican senators (Sen. Rand Paul, R-Ky., and Sen. J.D. Vance, R-Ohio). Sen. Joe Manchin, D-W.Va., is the lone Democrat co-sponsoring the resolution.

A companion version of the resolution has been introduced in the House by Reps. Sam Graves, R-Mo., chairman of the House Committee on Transportation and Infrastructure, and Rick Crawford, R-Ark., chairman of T&I’s Subcommittee on Highways and Transit.

The resolution comes a day after a group of 40 stakeholders representing a variety of industries issued a letter to Congress members and authorizing committees to express opposition to a final rule issued by FHWA last November.

Although environmental groups like the Sierra Club and at least 10 state departments of transportation have supported the rule, a large group of stakeholders, federal lawmakers and state attorneys general have argued that FHWA has no authority to establish the rule.

According to the final rule, state DOTs and metropolitan planning organizations are required to establish declining carbon dioxide targets. They are to report on progress toward the achievement of those targets. The final rule only establishes a framework for measurement. It does not mandate how low greenhouse gas emission targets must be.

As pointed out in the coalition’s letter, Congress addressed the proposed greenhouse gas performance measures while drafting the Infrastructure Investment and Jobs Act.

However, that provision never made it into the final 2021 law after a lack of sufficient congressional support.

This is not the first time FHWA has tried to implement greenhouse gas performance measures. In 2017, the agency issued a rule requiring states to set targets for greenhouse gas emissions. FHWA cited language in the 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21) when justifying its authority. However, in May 2018, the agency repealed its own rule, determining it misinterpreted the law and that states had the power to determine how to address greenhouse gas emissions.

The law regarding FHWA’s authority to address greenhouse gas emissions has not changed since MAP-21.

Despite that and Congress explicitly omitting a second bite at the apple in the Infrastructure Investment and Jobs Act, the agency moved forward with the greenhouse gas performance measures.

That was immediately met with opposition from lawmakers. Cramer issued a statement condemning the rule, pointing out that the greenhouse gas performance measures were left out of the bipartisan infrastructure law during negotiations. Similar statements were issued by Capito and Graves.

“During negotiations of the Infrastructure Investment and Jobs Act, this authority for FHWA was purposefully left out of the final bipartisan bill that was signed into law,” Capito said in her statement. “Without the authority to impose this mandate, the FHWA is ignoring the letter of the law to finalize a rule that hampers the ability of state DOTs and MPOs to address the transportation needs of their constituents.”

During an Infrastructure Investment and Jobs Act oversight hearing, Crawford addressed the issue.

“I understand you all have seemingly been tasked by the White House with tackling climate change first and your core missions second, but our concern is that during consideration of (the Infrastructure Investment and Jobs Act), the Senate considered this policy proposal and expressly excluded it from the final legislation,” he said. “There is simply no congressional mandate or provided authority to take this action.”

On Dec. 21, attorneys general for 21 states filed a federal lawsuit against FHWA and the U.S. Department of Transportation. Like arguments already made by federal lawmakers, the lawsuit argues that FHWA has no authority to establish greenhouse gas performance measures.

In the letter, the coalition of 40 associations, including the Owner-Operator Independent Drivers Association, supports any congressional efforts to halt FHWA’s greenhouse gas performance measure rule.