Capito, Cramer Lead Second Bicameral Amicus Brief to Overturn FHWA’s Unlawful Emissions Rule

WASHINGTON, D.C. - Friday, U.S. Senators Shelley Moore Capito (R-W.Va.), Ranking Member of the Senate Environment and Public Works (EPW) Committee, and Kevin Cramer (R-N.D.), Ranking Member of the EPW Committee's Transportation and Infrastructure Subcommittee led 24 of their colleagues in filing a bicameral amicus brief in the U.S. Court of Appeals for the Fifth Circuit. The focus of the brief is a final rule from the Federal Highway Administration (FHWA) that requires state departments of transportation and metropolitan planning organizations to measure greenhouse gas (GHG) emissions on the highway system and set declining targets for those GHG emissions. The brief requests that the Court uphold the April 2024, U.S. District Court decision finding that Congress did not grant the FHWA the authority to issue the rule. Ranking Member Capito and Senator Cramer also led a bicameral amicus brief in the U.S. Court of Appeals for the Sixth Circuit last month on the same rule.

The brief argues that Congress explicitly debated providing the FHWA the necessary authority to issue this rule, but decided against doing so in the Infrastructure Investment and Jobs Act. The FHWA then intentionally misconstrued congressional intent and used unrelated statutory authorities to attempt to justify issuing its GHG performance measure rule. The brief also argues the rulemaking is not consistent with recent Supreme Court decisions paring back Executive Branch overreach, and that FHWA is ignoring principles of federalism at the expense of state governments 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 Procedure Act," the members continued.

In addition to Ranking Member Capito and Senator Cramer, the amicus brief is cosigned by U.S. Senators John Barrasso (R-Wyo.), John Boozman (R-Ark.), Bill Cassidy (R-La.), John Cornyn (R-Texas), Ted Cruz (R-Texas), Mike Crapo (R-Idaho), Steve Daines (R-Mont.), Joni Ernst (R-Iowa), Lindsey Graham (R-S.C.), John Hoeven (R-N.D.), Cindy Hyde-Smith (R-Miss.), Cynthia Lummis (R-Wyo.), Roger Marshall (R-Kan.), Jerry Moran (R-Kan.), Markwayne Mullin (R-Okla.), Pete Ricketts (R-Neb.), Jim Risch (R-Idaho), Marco Rubio (R-Fla.), Tim Scott (R-S.C.), Dan Sullivan (R-Ark.), John Thune (R-S.D.), Roger Wicker (R-Miss.), and U.S. Representatives Sam Graves (R-Mo.-6), Chairman of the Transportation and Infrastructure Committee, and Rick Crawford (R-Ark.-1), Chairman of the Highways and Transit Subcommittee.

Full text of the amicus brief is available here.

BACKGROUND:

Last month, Ranking Member Capito and Senator Cramer led 28 of their colleagues in filing a bicameral amicus brief in the U.S. Court of Appeals for the Sixth Circuit on the same rule.

In April of this year, the U.S. Senate approved a Congressional Review Act (CRA) joint resolution of disapproval overturning the rule by a vote of 53-47. The measure was co-sponsored by Ranking Member Capito and sponsored by Senator Cramer.

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