FHWA to publish proposed greenhouse gas emissions measures rule

The Federal Highway Administration has published a notice of proposed rulemaking to amend greenhouse gas emission measures.

FHWA will publish a rulemaking on Friday, July 15, that proposes “to require state departments of transportation and metropolitan planning organizations to establish declining carbon dioxide targets and to establish a method for the measurement and reporting of greenhouse gas emissions associated with transportation under the highways title of the United States Code.”

Comments will be collected for 90 days and can be sent by the following methods:

• Federal eRulemaking Portal: Go to Regulations.gov and follow the online instructions for submitting comments.
• Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue, SE, Washington, D.C. 20590.
• Hand Delivery: S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE, Washington, D.C. 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366-9329.

All submissions should include the agency name and the docket number that appears in the heading of this document or the Regulation Identifier Number for the rulemaking. The RIN for Docket No. FHWA-2021-0004 is 2125-AF99.

It is worth noting that the proposed rule does not mandate the level of the greenhouse gas emission targets for each state DOTs and metropolitan planning organizations. Rather, agencies can shape their own targets based on what is best for their respective communities and climate change policies.

The proposed rule requires state DOTs and metropolitan planning organizations that have National Highway System mileage within their geographic and planning boundaries to establish declining greenhouse gas emissions targets. Specifically, the target must reduce carbon dioxide emissions generated by on-road mobile sources that align with the Biden administration’s net-zero targets.

However, the proposed rulemaking may not make it far. On June 30, the U.S. Supreme Court issued a ruling that limits the federal government’s ability to regulate greenhouse gas emissions. In the case West Virginia v. Environmental Protection Agency, the Supreme Court ruled that the EPA does not have the authority to regulate individual parts of the country’s energy portfolio.

The court ruled that the Obama administration’s Clean Power Plan does not clear the “major questions” hurdle. In other words, Congress did not give clear authorization to regulate states’ greenhouse gas emissions.

With that backdrop in mind, states may feel compelled to challenge FHWA’s proposed rule. LL