U.S. Senators Katie Britt, Kevin Cramer, Shelley Moore Capito Lead Bicameral Amicus Brief to Overturn FHWA’s Unlawful, Costly Emissions Rule

WASHINGTON, D.C., October 10, 2024 — U.S. Senators Katie Britt (R-Ala.), Kevin Cramer (R-N.D.), and Shelley Moore Capito (R-W.Va.) recently led their Congressional colleagues in filing a bicameral amicus brief in support of vacating a harmful final rule from the Federal Highway Administration (FHWA). 

In November 2023, FHWA adopted a final rule requiring state departments of transportation and metropolitan planning organizations to measure greenhouse gas (GHG) emissions on the highway system and set declining targets. Senator Britt joined her Senate colleagues in a bipartisan Congressional Review Act joint resolution of disapproval to overturn the rule. The joint resolution passed the Senate in April by a vote of 53 to 47, reiterating Congress’ bipartisan opposition to FHWA’s overreach.

Shortly after the rule was finalized, 21 state attorneys general, including Alabama, filed litigation challenging the regulation. In April 2024, the U.S. District Court for the Western District of Kentucky found the Biden-Harris Administration rule to be illegal, but FHWA appealed the decision to the U.S. Court of Appeals for the Sixth Circuit and it remains under further consideration. 

The members’ brief argues Congress debated and rejected granting FHWA the authority to issue GHG performance measure rules and the FHWA then intentionally misconstrued Congressional intent to justify its improper exercise of authority. It also argues the rulemaking is not consistent with recent Supreme Court decisions paring back Executive Branch overreach, and FHWA is bypassing principles of federalism to further its own policy agenda.

“Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation, but [FHWA] contorted ancillary existing authorities to impose one anyway,” 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.

“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 Procedures Act,” continued the members. 

Additional cosponsors include Senate Minority Leader Mitch McConnell (R-Ky.) and Senators John Barrasso (R-Wyo.), John Boozman (R-Ark.), Mike Braun (R-Ind.), Ted Cruz (R-Texas), Mike Crapo (R-Idaho), Steve Daines (R-Mont.), Joni Ernst (R-Iowa), Deb Fischer (R-Neb.), Lindsey Graham (R-S.C.), John Hoeven (R-N.D.), Cindy Hyde-Smith (R-Miss.), Cynthia Lummis (R-Wyo.), Roger Marshall (R-Kans.), Markwayne Mullin (R-Okla.), Pete Ricketts (R-Neb.), Jim Risch (R-Idaho), Mike Rounds (R-S.D.), Marco Rubio (R-Fla.), Rick Scott (R-Fla.), Tim Scott (R-S.C.), Dan Sullivan (R-Alaska), John Thune (R-S.D.), Tommy Tuberville (R-Ala.), Roger Wicker (R-Miss.), and Representatives Sam Graves (R-Mo.), Chairman of the Transportation and Infrastructure Committee, and Rick Crawford (R-Ark.), Chairman of the Highways and Transit Subcommittee.

Click here for the amicus brief.

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