In November 2023, the Federal Highway Administration (FHWA) adopted a rule requiring state departments of transportation and metropolitan planning organizations to measure greenhouse gas emissions on the highway system and set declining targets. U.S. Senator Kevin Cramer (R-ND), Ranking Member of the Senate Environment and Public Works Subcommittee on Transportation and Infrastructure, led a bipartisan Congressional Review Act joint resolution of disapproval to overturn this rule. The resolution passed in the Senate by a vote of 53 to 47.
Following the finalization of the rule, 21 state attorneys general, including North Dakota’s, challenged it in court. The U.S. District Court for the Western District of Kentucky found the Biden administration’s rule illegal; however, FHWA appealed this decision to the Sixth Circuit Court of Appeals.
In October, Senator Cramer and U.S. Senator Shelley Moore Capito (R-WV), Ranking Member of the EPW Committee, filed an amicus brief supporting North Dakota’s efforts against the rule. Meanwhile, Texas pursued separate legal action resulting in a similar ruling from its District Court which was also appealed by the Department of Transportation.
Senators Cramer and Capito recently led another bicameral amicus brief urging the Fifth Circuit Court of Appeals to uphold Texas’ District Court decision. The brief argues that Congress did not grant FHWA authority to issue greenhouse gas performance measures and accuses FHWA of misconstruing Congressional intent.
“Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation,” argued members in their statement. “Put simply, when [FHWA] established a GHG performance measure regulation, it exceeded the powers Congress authorized.”
The amicus brief was cosigned by multiple U.S. Senators including John Barrasso (R-WY), John Boozman (R-AR), Bill Cassidy (R-LA), Ted Cruz (R-TX), among others. U.S. Representatives Sam Graves (R-MO-6) and Rick Crawford (R-AR-1) were also involved.
Senator Cramer has been vocal about his opposition through various platforms including an op-ed in The Wall Street Journal where he highlighted FHWA’s lack of statutory authority for such regulations. He introduced an amendment aimed at defunding this rule as part of a broader transportation appropriations bill but faced procedural challenges in passing it.
