More than 20 states challenging FHWA’s new emission rule

A coalition of state attorneys general has filed a lawsuit against the Biden administration’s emission performance measures for state Departments of Transportation and metropolitan planning organizations.

On Dec. 21, attorneys general for 21 states filed a federal lawsuit against the Federal Highway Administration, FHWA Administrator Shailen Bhatt, the U.S. Department of Transportation, Transportation Secretary Pete Buttigieg and President Joe Biden. The lawsuit is challenging a recently finalized rule that establishes performance measures that provide a national framework for state DOTs and metropolitan planning organizations to track transportation-related greenhouse gas emission.

The coalition of states argues that the federal agencies do not have the authority to issue the emission performance measures.

FHWA’s emission performance measures

The final rule adds a new greenhouse gas performance measure to the existing FHWA national performance measures to be used by states to assess performance of the National Highway System.

State DOTs and metropolitan planning organizations are required to establish declining targets for reducing CO2 emissions generated by vehicles. Targets for the first four-year period must be established and reported to FHWA no later than Feb. 1.

FHWA’s rule does not mandate how low targets must be. Rather, state DOTs and metropolitan planning organizations have the flexibility to set targets that are appropriate for their communities and that work for their respective climate change and other policy priorities, as long as the targets aim to reduce emissions over time. FHWA will assess whether state DOTs have made significant progress toward achieving their targets.

FHWA’s final rule on emission performance measures goes into effect on Jan. 8.

FHWA not authorized to regulate greenhouse gas emissions

In the complaint, the states point to a similar rule that was repealed.

In January 2017, FHWA issued a rule that required states to establish targets for greenhouse gas emissions. At the time, the Obama administration justified the rule by pointing to a federal law that requires the DOT secretary to establish and implement a national highway performance program. The purposes of that program include:

• To provide support for the condition and performance of the National Highway System
• To construct new facilities on the National Highway System
• To increase the resiliency of the National Highway System to mitigate the cost of damages from sea level rise, extreme weather events, flooding, wildfires or other natural disasters
• To ensure that investments of federal-aid funds in highway construction are directed to support progress toward the achievement of performance targets established

However, the Trump administration argued that nothing in the above law gives FHWA or the U.S. DOT the authority to mandate that states reduce certain emissions.

In May 2018, the agencies found that interpreting the term “performance” to include “environmental performance” was “a strained reading of the statutory language.” Consequently, the rule was repealed.

“President Biden is unconstitutionally ramming his radical climate agenda through administrative agencies that lack Congressional authority to implement such actions,” Kentucky Attorney General Daniel Cameron said in a statement. “We will not stand by while this administration attempts to circumvent the legislative process.”

The lawsuit also claims that the emission performance measures will disproportionately affect states with more rural areas. According to the complaint, states with higher average annual miles per driver tend to be more rural. On average, rural residents drive 10 miles more per day than urban residents.

Cameron is joined in the lawsuit by the attorneys general of Alabama, Alaska, Arkansas, Florida, Idaho, Indiana, Iowa, Kansas, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Dakota, South Carolina, Utah, Virginia, West Virginia and Wyoming. LL