U.S. Sen. John Hoeven (R-ND) and Sen. Shelley Moore Capito (R-WV) are urging the Federal Highway Administration (FHWA) to withdraw a proposal to implement greenhouse gas emissions performance measures on state departments of transportation and metropolitan planning organizations.
Capito, ranking member of the Senate Environment and Public Works Committee, and Hoeven outlined the problems with the proposal in a letter to Stephanie Pollack, FHWA deputy administrator. According to the senators, the proposal does not have authority from Congress and would add a significant burden to state-level investments in roadways, bridges, highways and other projects.
“FHWA’s proposal exceeds the agency’s limited statutory authority provided by Congress. We are especially troubled by this attempted overreach given the Supreme Court’s recent ruling in West Virginia v. Environmental Protection Agency, 142 S. Ct. 2587 (2022), which made clear that agency action implicating major questions require clear congressional authorization,” the senators wrote. “Current law does not provide any authority to make this proposal … 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.”
State departments of transportation have also submitted formal comments opposed to the FHWA’s proposal.
“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 North Dakota Department of Transportation commented. “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.”
The Hoeven and Capito letter was signed by 25 other senators, including Sens. Susan Collins (R-ME), Ted Cruz (R-TX), Joni Ernst (R-IA) and Lindsey Graham (R-SC).