FHWA Revives Controversial Emissions Reporting Rule

What happened: The Federal Highway Administration (FHWA) issued a proposed rule July 7 that requires states and localities to establish performance measures aimed at reducing greenhouse gas emissions (GHG) from transportation networks.

Why it matters: The proposal is almost identical to one issued by the Obama administration. ARTBA opposed that proposal, noting that Congress had not given FHWA the authority to regulate GHG emissions when transportation performance measures were established. In 2018, the Trump administration repealed the rule, agreeing with the association that the agency lacked clear authority for the measure. Now that the rule has been re-proposed, questions over FHWA’s authority to regulate GHG emissions remain. Specifically, Senator Shelly Moore Capito (R-W.Va.) criticized the measure as following ‘a common theme by both DOT and the administration, which is implementing partisan policy priorities they wish had been included in the bipartisan bill that the president signed into law.’ Additionally, last week’s decision by the U.S. Supreme Court against the Environmental Protection Agency (EPA) in the West Virginia v. EPA case demonstrates that federal agency attempts to expand their regulatory mission beyond the intent of Congress can be struck down. ARTBA’s Vice President of Regulatory & Legal Issues Nick Goldstein gives ARTBA’s point of view in this Washington Post story.

What’s next: FHWA will be accepting comments on the rule for 90 days after publication in the Federal Register, which is expected to happen within the next week.

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