Federal court nixes greenhouse gas emissions rule, handing Texas another win

A federal court in Texas has struck down a new Federal Highway Administration rule establishing greenhouse gas emission performance measures for state Departments of Transportation and metropolitan planning organizations.

On Wednesday, March 27, Judge James Wesley Hendrix of the Northern District of Texas federal court granted Texas’ motion for summary judgment in a case against the U.S. DOT and FHWA. Hendrix ruled that Congress never authorized FHWA to install a rule establishing transportation-related greenhouse gas performance measures.

The court’s final judgment effectively halts FHWA’s rule targeting vehicle-related greenhouse gas emission, which was finalized in December and went into effect in January. It also addresses a similar lawsuit filed by more than 20 Republican-controlled states. Reporting under the new rule was scheduled to begin on Friday, March 29.

In February, Republicans in Congress introduced a resolution to undo FHWA’s greenhouse gas performance measures.

That resolution came shortly after a group of 40 stakeholders representing a variety of industries issued a letter to Congress members and authorizing committees to express opposition to the rule.

Reps. Sam Graves, R-Mo., and Rick Crawford, R-Ark., issued a joint statement on the recent court decision.

“This was a clear case of blatant overreach by the Biden administration from the beginning, and we commend the court for its ruling that a ‘federal administrative agency cannot act without congressional authorization,’” Graves and Crawford said. “Congress rejected the inclusion of a GHG performance measure requirement when the infrastructure law was developed, making the administration’s rulemaking an unlawful attempt to circumvent Congress and force this one-size-fits-all burden upon every state and community across the country. We appreciate the ruling and remain committed to ensuring the administration does not exceed its authority.”

The federal government likely will appeal the decision to the Fifth Circuit Court of Appeals. An FHWA spokesperson said the agency is reviewing the district court decision and determining next steps.

FHWA’s greenhouse gas performance measure rule

At the center of the lawsuit is a new rule providing a national framework for state DOTs and metropolitan planning organizations to track transportation-related greenhouse gas emission.

According to the final rule, state DOTs and metropolitan planning organizations are required to establish declining carbon dioxide targets. They are to report on progress toward the achievement of those targets.

The final rule only establishes a framework for measurement. It does not mandate how low greenhouse gas emission targets must be.

State DOTs and metropolitan planning organizations have flexibility to set targets that are appropriate for their communities and that work for their respective climate change and other policy priorities, as long as the targets aim to reduce emission over time.

Specifically, state DOTs and metropolitan planning organizations that have National Highway System mileage within their geographic boundaries must establish declining targets for reducing CO2 emission generated by on-road mobile sources relative to a reference year defined as calendar year 2022, and must report on their progress.

FHWA’s second bite at the apple

This isn’t FHWA’s first attempt at establishing greenhouse gas emission measurements.

Just days before Donald Trump took office in January 2017, the Obama administration issued a similar final rule. FHWA cited a provision in the 2012 Moving Ahead for Progress in the 21st Century Act (MAP-21), Section 150(c)(3), that gives the agency authority to establish a national highway performance program. That program measures bridge/pavement conditions and the performance of interstate and national highway systems.

That rule was repealed. Under the Trump administration, FHWA concluded that it exceeded its authority with the 2017 rule by including greenhouse gas emission in the performance measures. The agency also found the rule imposed unnecessary regulatory burdens on state DOTs and MPOs.

In July 2022, the Biden administration revisited the issue with a proposed rule that was very similar to the 2017 rule. Again, the U.S. DOT interpreted the definition of “performance” to include environmental performance. That rule was finalized in December.

Strike two

Texas’ lawsuit points out what FHWA concluded in 2018: Congress never authorized the agency to address environmental impacts in its highway performance program.

Hendrix agreed.

“If the people, through Congress, believe that the states should spend the time and money necessary to measure and report (greenhouse gas) emissions and set declining emission targets, they may do so by amending Section 150 or passing a new law,” Hendrix stated in his order. “But an agency cannot make this decision for the people. An agency can only do what the people authorize it to do, and the plain language of Section 150(c)(3) and its related statutory provisions demonstrate the DOT was not authorized to enact the 2023 Rule.”

Although “performance” is not defined in the MAP-21 statute, definitions related to the interstate and national highway systems suggest performance measures focus on how the systems facilitate travel, commerce and national defense. There is no mention of anything related to environmental performance or impacts. Essentially, performance measures focus on the physical structures of the interstate and national highway systems.

Hendrix’s order vacating FHWA’s greenhouse gas measurement rule applies nationwide. LL

Link to article here.