Central ND News

In November 2023, the Federal Highway Administration (FHWA) implemented a rule requiring state departments of transportation and metropolitan planning organizations to measure greenhouse gas emissions on highways and set declining targets. U.S. Senator Kevin Cramer (R-ND), a leading figure in the Senate Environment and Public Works Subcommittee on Transportation and Infrastructure, spearheaded a bipartisan resolution disapproving this rule. The resolution passed the Senate in April with a vote of 53 to 47, reflecting Congress's stance against what it sees as FHWA overreach.

Following the rule's finalization, attorneys general from 21 states filed litigation challenging its legality. A U.S. District Court declared the Biden administration's rule illegal, but FHWA appealed this decision to the Sixth Circuit Court of Appeals.

Senators Kevin Cramer and Shelley Moore Capito (R-WV), Ranking Member of the EPW Committee, led their colleagues in filing an amicus brief urging the Appeals Court to uphold the District Court's ruling from April, which vacated the rule. The brief contends that Congress debated and ultimately rejected giving FHWA authority to issue rules regarding GHG performance measures. It further argues that FHWA misconstrued Congressional intent to justify its actions and bypassed federalism principles for its policy agenda.

“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,” stated members of Congress involved in filing the brief. “In doing so, [FHWA] impermissibly usurped the Legislative Branch’s authority and promulgated the GHG performance measure without statutory authority delegated by Congress.”

The amicus brief also claims that when FHWA established a GHG performance measure regulation, it exceeded powers authorized by Congress at both separation of powers' expense and in violation of the Administrative Procedure Act.

Additional cosigners of this brief include several U.S. Senators such as John Barrasso (R-WY), Ted Cruz (R-TX), Lindsey Graham (R-SC), Mitch McConnell (R-KY), Marco Rubio (R-FL), among others. Key figures from the House include Representatives Sam Graves (R-MO-6) and Rick Crawford (R-AR-1).

Senator Cramer also expressed his opposition through an op-ed in The Wall Street Journal highlighting what he described as FHWA’s lack of statutory authority for issuing such rules and underscoring its impracticality for rural states.

He introduced a bipartisan amendment (#1241) to defund this proposed rule within a Transportation Appropriations bill; however, it was defeated due to Senate procedural requirements imposed by Democrats demanding a higher vote threshold.