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 by a vote of 53 to 47, reiterating Congress' opposition to FHWA's overreach. In a speech on the Senate floor, Cramer committed 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 for the Western District of Kentucky 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. In October, Cramer and U.S. Senator Shelley Moore Capito (R-WV), Ranking Member of the EPW Committee, led their colleagues in filing an amicus brief supporting North Dakota's efforts to overturn the rule.

Similarly, the state of Texas filed a separate suit against FHWA, and the District Court for the Northern District of Texas vacated the Biden rule. The Department of Transportation appealed the ruling. Today, Cramer and Capito led their colleagues in filing a separate bicameral amicus brief requesting the Fifth Circuit Court of Appeals uphold the District Court decision.

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," 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," continued the members.

Additional cosigners of the amicus brief include U.S. Senators John Barrasso (R-WY), John Boozman (R-AR), Bill Cassidy (R-LA), John Cornyn (R-TX), Ted Cruz (R-TX), Mike Crapo (R-ID), Steve Daines (R-MT), Joni Ernst (R-IA), Lindsey Graham (R-SC), John Hoeven (R-ND), Cindy Hyde-Smith (R-MS), Cynthia Lummis (R-WY), Roger Marshall (R-KS), Jerry Moran (R-KS), Markwayne Mullin (R-OK), Pete Ricketts (R-NE), Jim Risch (R-ID), Marco Rubio (R-FL), Tim Scott (R-SC), Dan Sullivan (R-AK), John Thune (R-SD), 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.