Cramer Leads Bicameral Amicus Brief to Overturn FHWA’s Unlawful Emissions Rule

BISMARCK, N.D. - In November 2023, the Federal Highway Administration (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. U.S. Senator Kevin Cramer (R-ND), Ranking Member of the Senate Environment and Public Works (EPW) Subcommittee on Transportation and Infrastructure, led a bipartisan Congressional Review Act joint resolution of disapproval to overturn the rule. The resolution passed the Senate in April 53 to 47, reiterating Congress' opposition to FHWA's overreach. In a speech on the Senate floor, Cramercommitted to leading an amicus brief in support of overturning the rule in court.

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

Cramer and U.S. Senator Shelley Moore Capito (R-WV), Ranking Member of the EPW Committee, led their colleagues in filing a bicameral amicus brief requesting the Appeals Court uphold the District Court decision from April, vacating the rule.

The 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,"themembers 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 Procedure Act,"continued the members.

Additional cosigners of the amicus brief include U.S. Senators John Barrasso (R-WY), John Boozman (R-AR), Mike Braun (R-IN), Katie Britt (R-AL), Ted Cruz (R-TX), Mike Crapo (R-ID), Steve Daines (R-MT), Joni Ernst (R-IA), Deb Fischer (R-NE), Lindsey Graham (R-SC), John Hoeven (R-ND), Cindy Hyde-Smith (R-MS), Cynthia Lummis (R-WY), Roger Marshall (R-KS), Mitch McConnell (R-KY), Markwayne Mullin (R-OK), Pete Ricketts (R-NE), Jim Risch (R-ID), Mike Rounds (R-SD), Marco Rubio (R-FL), Rick Scott (R-FL), Tim Scott (R-SC), Dan Sullivan (R-AK), John Thune (R-SD), Tommy Tuberville (R-AL), Roger Wicker (R-MS), and U.S. Representatives Sam Graves (R-MO-6), Chairman of the Transportation and Infrastructure Committee, and Rick Crawford (R-AR-1), Chairman of the Highways and Transit Subcommittee.

Click here for the amicus brief.

Cramer also penned an op-ed in the Wall Street Journal highlighting FHWA's lack of statutory authority to issue the rule, and stressed its unworkable nature for rural states. In November 2023, Cramer introduced a bipartisan amendment (#1241) to the bipartisan Transportation Appropriations bill, which would have defunded the proposed rule. While the amendment was germane and bipartisan, Democrats in the Senate demanded a 60-vote threshold to ensure its defeat. Cramer also questioned FHWA Administrator Shailen Bhatt during EPW hearings in June 2023 and September 2022. In October 2022, he sent a letter to FHWA Deputy Administrator Stephanie Pollack voicing strong opposition to the agency's proposal to implement a GHG emissions performance measure.

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