A Federal Highway Administration memo on implementing the infrastructure bill passed in the fall of 2021 is now open to congressional review.
An inquiry from Republican senators has prompted the Government Accountability Office to determine that the memo was in fact a rule and is open to congressional review. The senators say it makes policies unintended by Congress.
Sen. Shelley Moore Capito, R-W.Va., is ranking member of the Senate Environment and Public Works Committee. She pushed for the memo to be reviewed by the GAO to open the door for congressional review.
The GAO released a statement on Dec. 15 that concluded a review is warranted.
“We conclude the memo is a rule for purposes of (the Congressional Review Act) because it meets the (Administrative Procedures Act) definition of a rule and no exceptions apply,” the GAO statement read.
At issue for the senators is a memorandum from the FHWA dated Dec. 16, 2021, that guided states in taking advantage of the funds from the infrastructure bill, the Infrastructure Investment and Jobs Act.
The intent of the guidance, according to the memo, was “to encourage states and other funding recipients to invest in projects that upgrade the condition of streets, highways and bridges and make them safe for all users, while at the same time modernizing them so that the transportation network is accessible for all users, provides people with better choices across all modes, accommodates new and emerging technologies, is more sustainable and resilient to a changing climate, and is more equitable.”
A bulleted list in the memo mentions “prioritize infrastructure that is less vulnerable and more resilient to a changing climate.” The list includes electric vehicle charging stations. Here is a copy of the memo.
“I plan to introduce a Congressional Review Act resolution of disapproval to ensure the (infrastructure bill) is implemented as written, our states have the flexibility we provided them, and we maximize the investments made in America’s highways, roads, and bridges,” Capito said in a statement issued Dec. 15.
Capito sent a letter to governors in February raising concerns that the FHWA was trying to impose policy not spelled out in the infrastructure bill.
Another letter in October presented concerns to FHWA Deputy Administrator Stephanie Pollack. In it, the senators voice opposition to the agency’s proposal to implement a greenhouse gas emissions performance measure on state departments of transportation and metropolitan planning organizations, despite not being authorized by Congress to do so.
“Congress should not be in the business of disapproving internal policy documents from any administration, Democratic or Republican, through the use of the Congressional Review Act,” reads Carper’s statement.
Shailen Bhat was recently confirmed as administrator of FHWA. During hearings leading up to his confirmation in September, Capito aired some of her concerns related to the memo. A transcript is available.
She said she was concerned that the memo in question and other documents from before Bhatt took office were encouraging recipients of highway grants to flex funding into transit investments and discouraged states from adding highway capacity.
“While I have been told repeatedly that these are just guidance documents, my frustration is building when I consider the time that limited state at the (U.S. DOT) and FHWA are devoting to such documents instead of implementing the law in it entirety.”
Bhatt pointed out that FHWA had already, before his confirmation hearing, begun projects to increase capacity.