U.S. Senators John Boozman, Kevin Cramer, and Shelley Moore Capito have spearheaded a bicameral amicus brief in the U.S. Court of Appeals for the Sixth Circuit. This action opposes a final rule from the Federal Highway Administration (FHWA) that mandates state departments of transportation and metropolitan planning organizations to measure greenhouse gas emissions on highways and set declining targets for these emissions.
The brief requests the court uphold an April 2024 decision by the U.S. District Court, which found that Congress did not authorize FHWA to issue this rule. The senators argue that Congress explicitly debated granting FHWA this authority but ultimately decided against it in the Infrastructure Investment and Jobs Act. They contend that FHWA misinterpreted congressional intent and used unrelated statutory authorities to justify its greenhouse gas performance measure rule.
"Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation," the members argued. "In doing so, [FHWA] impermissibly usurped the Legislative Branch’s authority and promulgated the GHG performance measure without statutory authority delegated by Congress."
They further stated, "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."
Senate Republican Leader Mitch McConnell, along with several other senators and U.S. Representatives Sam Graves and Rick Crawford, also cosigned the brief.
Following its finalization, 21 state attorneys general filed litigation challenging this regulation. The U.S. District Court deemed it illegal; however, FHWA appealed to the Sixth Circuit Court of Appeals where it remains under consideration.
Earlier this year, a Congressional Review Act joint resolution disapproving of this rule was approved by the U.S. Senate with a vote of 53-47.
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