Senator Cramer and Congressman Crawford Lead Resolution to Overturn FHWA’s Illegal, Impractical GHG Emissions Performance Measure Rule

Nearly Half the Senate Cosponsors the Resolution

WASHINGTON – The Federal Highway Administration (FHWA) finalized a rule in November 2023, imposing greenhouse gas (GHG) emissions performance measures on state departments of transportation and metropolitan planning organizations despite lacking the authority from Congress to do so. This misguided regulation is another case of gross federal overreach from the Biden administration, which saddles states with burdensome and unlawful requirements.

U.S. Senator Kevin Cramer (R-ND) and Congressman Rick Crawford (R-AR-01), with U.S. Senators Shelley Moore Capito (R-WV) and Joe Manchin (D-WV) and Chairman Sam Graves (R-MO-06), introduced a bicameral, bipartisan Congressional Review Act (CRA) Joint Resolution of Disapproval to nullify the FHWA rule and illustrate Congress’ objection to this federal overreach.  

“The absence of a prohibition is not a license, and yet the Biden administration pushed this illegal and infeasible regulation anyway. New York and North Dakota have very different transportation systems, needs, and capabilities, but under this one-size-fits-all mandate, they’re effectively treated the same. A subway stop at a cattle ranch is silly and unserious, and so is the idea of widespread EV use in North Dakota. Nearly half the Senate cosponsored this resolution from the onset, showing strong appetite for this rule to be defeated,” said Senator Cramer, Ranking Member of the Senate Environment and Public Works Subcommittee on Transportation and Infrastructure.

“Once again, the Biden administration is blatantly neglecting the letter of a bipartisan law passed by Congress and signed by the president himself. FHWA’s final rule limits the flexibility of states to advance their own transportation investment priorities, jeopardizing critical investments, jobs, and economic growth across the country. When we negotiated the bipartisan Infrastructure Investment and Jobs Act, we specifically left out the authority FHWA is attempting to exercise with its greenhouse gas emissions performance measure requirement. As we’ve done before, I am committed to working with my Senate and House colleagues to hold the Biden administration accountable,” said Senator Capito, Ranking Member of the Senate Environment and Public Works Committee.

“The FHWA’s final rule is yet another example of irresponsible federal overreach. This rule will cause serious economic damage to our transportation industries, especially in rural states like West Virginia with heavy freight traffic. Let me be clear – the Administration does not have the authority to burden state DOTs with these radical emissions performance measures without Congressional direction. I’m proud to introduce this resolution of disapproval and I encourage my colleagues on both sides of the aisle to oppose the FHWA’s unlawful and economically irresponsible power grab,” said Senator Manchin, Chairman of the Senate Energy and Natural Resources Committee.

“This one size fits all regulation puts states with more small towns and rural communities that are not able to cut emissions by building a metro system, buying electric buses, or building miles of bike lanes between communities at a significant disadvantage. What’s most galling is that this Administration has implemented this rule despite having no statutory authority to do so. This is the heavy hand of the federal government run amok,” said Rep. Crawford, Chairman of the House Highways and Transit Subcommittee.

“While the infrastructure law included provisions to address transportation related environmental impacts and transportation resiliency, Congress considered and specifically rejected the inclusion of a GHG performance measure requirement during negotiations. The Biden Administration needs to implement the law that was written – not a law that it keeps wishing had been written,” said Rep. Graves, Chairman of the House Transportation and Infrastructure Committee.

Congress has not provided the U.S. Department of Transportation (DOT) with any statutory authority to implement this proposal. It was thoroughly debated and intentionally left out of the Infrastructure Investment and Jobs Act. FHWA’s new rule resembles a 2017 Obama administration rule the Trump administration repealed in 2018 after reconsidering the legal authority under which it was promulgated. Additionally, the agency’s proposal is not workable, as illustrated by comments from a majority of state DOTs and attorneys general, which raised concerns or outright opposed it.

Click here for bill text. Click here for a one-pager. Click here for a letter of support from stakeholders.

Additional cosponsors include U.S. Senators Mitch McConnell (R-KY), John Thune (R-SD), John Hoeven (R-ND), Roger Marshall (R-KS), Ted Budd (R-NC), Pete Ricketts (R-NE), John Cornyn (R-TX), John Barrasso (R-WY), Tom Cotton (R-AR), Mike Braun (R-IN), Cindy Hyde-Smith (R-MS), Markwayne Mullin (R-OK), Joni Ernst (R-IA), Deb Fischer (R-NE), Roger Wicker (R-MS), Steve Daines (R-MT), Mike Crapo (R-ID), Mike Rounds (R-SD), Ted Cruz (R-TX), Eric Schmitt (R-MO), Mike Lee (R-UT), Thom Tillis (R-NC), Marsha Blackburn (R-TN), John Boozman (R-AR), Bill Hagerty (R-TN), Cynthia Lummis (R-WY), Chuck Grassley (R-IA), Tommy Tuberville (R-AL), James Risch (R-ID), Dan Sullivan (R-AK), Marco Rubio (R-FL), James Lankford (R-OK), Tim Scott (R-SC), Rick Scott (R-FL), Lindsey Graham (R-SC), Susan Collins (R-ME), Katie Boyd Britt (R-AL), Jerry Moran (R-KS), Lisa Murkowski (R-AK), Bill Cassidy (R-LA), John Kennedy (R-LA), Todd Young (R-IN), Ron Johnson (R-WI), Mitt Romney (R-UT), and Josh Hawley (R-MO).

Over the last couple of months, Senator Cramer has engaged in many efforts to prevent the Biden administration from finalizing this mandate. In December, he penned an op-ed in the Wall Street Journal highlighting FHWA’s lack of statutory authority to issue the rule, and stressed its unworkable nature for rural states.

In November, Cramer, Capito, and Manchin introduced an amendment (#1241) to the bipartisan Transportation Appropriations bill, which would have defunded the proposed rule. While the amendment was germane and bipartisan, Democrats in the Senate demanded a 60-vote threshold to ensure its defeat. During a speech on the Senate floor, Senator Cramer promised to introduce a CRA resolution of disapproval to overturn the rule and committed to an amicus brief in support of overturning the rule in court. In December 2023, 21 state attorneys general, including North Dakota, filed litigation challenging the final rule. 

Senators Cramer and Capito sent a letter to the FHWA, voicing strong opposition to the agency’s proposal to implement a GHG emissions performance measure. Additionally, the state departments of transportation in North Dakota, Idaho, Montana, South Dakota, and Wyoming submitted formal comments opposing FHWA’s GHG proposed rulemaking.