Cruz, Cramer, Capito File Bicameral Amicus Brief to Overturn FHWA’s Unlawful Emissions Rule

WASHINGTON, D.C. - U.S. Sen. Ted Cruz (R-Texas), member of the Senate Judiciary Committee, joined Sens. Kevin Cramer (R-N.D.), Shelley Moore Capito (R-W.Va.), and several Republican colleagues in filing a bicameral amicus brief against the Biden-Harris administration's greenhouse gas emissions rule on highways.

The Members of Congress requested that the United States Court of Appeals for the Sixth Circuit uphold the U.S. District Court for the Northern District of Texas's decision to vacate the Federal Highway Administration's (FHWA) final rule requiring states to measure greenhouse gas (GHG) emissions on the highways.

In the brief, the members argued,"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.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."

Sens. Cruz, Cramer, and Capito were joined by Sens. John Barrasso (R-Wyo.), John Boozman (R-Ark.), Mike Braun (R-Ind.), Katie Britt (R-Ala.), 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-Kan.), Mitch McConnell (R-Ky.), 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-Ark.), John Thune (R-S.D.), Tommy Tuberville (R-Ala.), and Roger Wicker (R-Miss.) in filing the brief.

The senators were also joined by Reps. Sam Graves (R-Mo.-6) and Rick Crawford (R-Ark.-1) in filing the brief.

Read the full amicus brief here.

BACKGROUND

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

Shortly after the rule was finalized, 21 state attorneys general, including Texas, filed litigation challenging the regulation. The U.S. District Court found the Biden-Harris administration rule to be illegal, but FHWA appealed the decision to the Sixth Circuit Court of Appeals and it remains under further consideration.

The bicameral amicus brief requests the Appeals Court uphold the District Court's decision vacating the rule. The brief argues that Congress debated and rejected granting the 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.

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