Charleston Leader

U.S. Senators Shelley Moore Capito and Kevin Cramer have spearheaded a bicameral amicus brief in the U.S. Court of Appeals for the Sixth Circuit, challenging a rule from the Federal Highway Administration (FHWA). The contested rule mandates state departments of transportation and metropolitan planning organizations to measure greenhouse gas emissions on highways and set targets for reduction.

The brief argues that Congress explicitly chose not to grant FHWA the authority to issue such a rule during discussions surrounding the Infrastructure Investment and Jobs Act. It claims that FHWA misinterpreted congressional intent by using unrelated statutory authorities to justify its greenhouse gas performance measure rule. The brief also contends that this rulemaking is inconsistent with recent Supreme Court decisions aimed at limiting Executive Branch overreach and disregards federalism principles.

"Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation," stated the members involved in filing the brief. "In doing so, [FHWA] impermissibly usurped the Legislative Branch’s authority."

The brief further states that when FHWA established this regulation, it exceeded its authorized powers, violating both separation of powers and the Administrative Procedure Act.

This legal action is supported by 28 other lawmakers, including Senate Republican Leader Mitch McConnell and several other senators. Additionally, U.S. Representatives Sam Graves and Rick Crawford have co-signed the document.

Earlier this year, in April, a Congressional Review Act joint resolution was approved by the U.S. Senate with a vote of 53-47 to overturn this FHWA rule.