On Tuesday, U.S. Sens. Shelley Moore Capito (R-WV), Kevin Cramer (R-ND) and nearly 30 other Congress members filed a bicameral amicus brief regarding a rule from the U.S. Department of Transportation’s Federal Highway Administrations emissions rule.
The brief was filed in the U.S. Court of Appeals for the Sixth Circuit and alleges the FHWA’s rule is unlawful. The rule requires state departments of transportation and metropolitan planning organizations measure greenhouse gas emissions on the highway system and sets declining targets for those emissions. In the amicus brief, Capito, ranking member of the Senate Environment and Public Works (EPW) Committee, and Cramer, Ranking Member of the EPW Committee’s Transportation and Infrastructure Subcommittee, said the FHWA does not have the congressional authority to issue the rule.
“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 Congress members wrote. “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 that the rule 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.
“Put simply, when [FHWA] established a GHG performance measure regulation, it exceeded the powers Congress authorized. And it did so both at the expense of separation of powers and in violation of the Administrative Procedure Act,” the members continued.
In April 2024, the U.S. Senate approved a Congressional Review Act (CRA) joint resolution of disapproval, sponsored Cramer and co-sponsored by Capito, overturning the rule by a vote of 53-47.
The brief is cosigned by U.S. Sens. Mitch McConnell (R-KY), U.S. Senators John Barrasso (R-WY), John Boozman (R-AR), Mike Braun (R-IN), Katie Britt (R-AL), Ted Cruz (R-TX), Mike Crapo (R-IN), Steve Daines (R-MT), Joni Ernst (R-IO), Deb Fischer (R-NE), Lindsey Graham (R-SC), John Hoeven (R-ND), Cindy Hyde-Smith (R-MS), Cynthia Lummis (R-WY), Roger Marshall (R-KS), Markwayne Mullin (R-OK), Pete Ricketts (R-NE), Jim Risch (R-IN), Mike Rounds (R-SD) Marco Rubio (R-FL), Rick Scott (R-FL), Tim Scott (R-SC), Dan Sullivan (R-AK), John Thune (R-SD), Tommy Tuberville (R-AL), Roger Wicker (R-MS), and U.S. Reps. Sam Graves (R-MO), and Rick Crawford (R-AR).