Charleston Leader

U.S. Senators Shelley Moore Capito and Kevin Cramer have taken a significant step in challenging a rule by the Federal Highway Administration (FHWA). The senators, alongside 24 colleagues, submitted an amicus brief to the U.S. Court of Appeals for the Fifth Circuit. This brief contests a FHWA regulation that mandates state transportation departments and metropolitan planning organizations to monitor greenhouse gas emissions on highways and establish reduction targets.

The senators argue that Congress explicitly chose not to grant FHWA the authority for such regulations in the Infrastructure Investment and Jobs Act. They claim FHWA misinterpreted congressional intent and relied on unrelated statutory powers to justify its greenhouse gas performance measure rule. The brief further contends that this action disregards recent Supreme Court rulings aimed at curbing Executive Branch overreach, compromising federalism principles at the expense of state governance.

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

They continued by asserting that "[FHWA] exceeded the powers Congress authorized" when establishing this regulation, violating both separation of powers and the Administrative Procedure Act.

Joining Senators Capito and Cramer in signing the brief are 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; along with Representatives Sam Graves and Rick Crawford.

Previously in April 2024, a U.S. District Court decision ruled against FHWA's authority to issue this rule. In addition to their current legal actions in both the Fifth and Sixth Circuits against this rulemaking by FHWA last month as well.