Charleston Leader

U.S. Senators Shelley Moore Capito and Kevin Cramer, both ranking members of key Senate committees, have led a group of 24 lawmakers in submitting a bicameral amicus brief to the U.S. Court of Appeals for the Fifth Circuit. The brief challenges a Federal Highway Administration (FHWA) rule that mandates state transportation departments and metropolitan planning organizations to measure greenhouse gas emissions on highways and set targets for reducing them.

The brief supports an April 2024 decision by a U.S. District Court, which ruled that Congress did not authorize the FHWA to implement this rule. Previously, Capito and Cramer had submitted a similar brief to the Sixth Circuit Court regarding the same issue.

The senators argue that Congress considered but ultimately rejected giving FHWA authority for such regulations in the Infrastructure Investment and Jobs Act. They claim that FHWA misinterpreted congressional intent and used unrelated statutory authorities to justify its rulemaking.

"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 lawmakers stated in their brief. "In doing so, [FHWA] impermissibly usurped the Legislative Branch’s authority and promulgated the GHG performance measure without statutory authority delegated by Congress."

The brief further asserts that FHWA's actions exceed its powers as authorized by Congress and violate principles of federalism, impacting state governments' rights.

Besides Capito and Cramer, other signatories include Senators John Barrasso, John Boozman, Bill Cassidy, John Cornyn, Ted Cruz, Mike Crapo, Steve Daines, Joni Ernst, Lindsey Graham, John Hoeven, Cindy Hyde-Smith, Cynthia Lummis, Roger Marshall, Jerry Moran, Markwayne Mullin, Pete Ricketts, Jim Risch, Marco Rubio, Tim Scott, Dan Sullivan, John Thune, Roger Wicker; Representatives Sam Graves and Rick Crawford also joined.

This action follows last month's filing of another amicus brief by Capito and Cramer with 28 colleagues in the Sixth Circuit concerning the same rule. In April 2024, a Congressional Review Act resolution disapproving this rule was passed by the Senate with a vote of 53-47.