FHWA cannot create of its own choosing the authority that Congress debated, considered, and rejected

WASHINGTON – U.S. Senator Kevin Cramer (R-ND), Ranking Member of the Environment and Public Works Subcommittee on Transportation and Infrastructure, joined Senator Shelley Moore Capito (R-WV) in sending a letter to Federal Highway Administration (FHWA) Deputy Administrator Stephanie Pollack voicing strong opposition to the agency’s proposal to implement a greenhouse gas (GHG) emissions performance measure on state departments of transportation and metropolitan planning organizations, despite having no authority from Congress to do so.

“Nowhere in the Infrastructure Investment and Jobs Act did Congress provide FHWA with any statutory authority to impose the performance measure or the requirement to set declining targets on state departments of transportation (DOTs) and metropolitan planning organizations (MPOs) contained in this proposal,” wrote the senators. “FHWA cannot create of its own choosing the authority that Congress debated, considered, and rejected.”

“FHWA’s attempt to create new authorities where Congress has not provided them would infringe on state DOTs’ necessary flexibility to meet the surface transportation needs of their residents,” continued the senators.

Similarly, the Transportation Departments of North Dakota, Idaho, Montana, South Dakota, and Wyoming (Transportation Departments) submitted formal comments opposing FHWA’s GHG proposed rulemaking. The States also emphasized the agency lacks the authority to promulgate this rule.

“Even if one were to believe there is arguably authority for the proposed rule, the Supreme Court recently reaffirmed that there must be ‘clear’ authority for promulgation of a rule on a ‘major question.’ The proposal to regulate States to reduce GHG emissions would represent a major change in a major program, the highway program, without clear authority; so, there is not authority for the proposed rule,” wrote the Transportation Departments.

In addition, The Transportation Departments highlighted problematic implementation issues specific to rural states such as North Dakota.

Click here to read the letter.