Senator Cramer’s Bipartisan Legislation to Overturn FHWA’s Illegal Emissions Rule Passes Senate

WASHINGTON - In November 2023, the U.S. Department of Transportation's (DOT) Federal Highway Administration (FHWA) finalized a rule, forcing state departments of transportation and metropolitan planning organizations to measure greenhouse gas (GHG) emissions on the highway system and set declining targets, despite lacking any authority from Congress to do so.

As a result of this federal overreach, U.S. Senator Kevin Cramer (R-ND), Ranking Member of the Senate Environment and Public Works Subcommittee on Transportation and Infrastructure, was joined by U.S. Senators Shelley Moore Capito (R-WV) and Joe Manchin (D-WV) andU.S. RepresentativesRick Crawford (R-AR-01) and Sam Graves (R-MO-06), in introducing a bicameral, bipartisan Congressional Review Act (CRA) Joint Resolution of Disapproval to nullify the FHWA rule and illustrate Congress' objection. Today, the legislation passed the Senate with a vote of 53 to 47.

Senator Cramer delivered remarks on the Senate floor, where he highlighted the importance of overturning the greenhouse gas performance measure regulation.

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"Few things are more frustrating in government than unelected bureaucrats asserting authority they don't have and foisting federal mediocrity on the excellence of states," said Cramer. "The Senate will take up my bipartisan resolution that overturns the Biden administration's obviously illegal rule that requires state departments of transportation to measure CO2 tailpipe emissions then set declining targets for vehicles traveling on the highway systems of their perspective states."

"The Federal Highway Administration provided a very novel rationale," added Cramer. "They argued that since Congress was aware of their plans to promulgate this rule, and did not explicitly bar it, 'Congress intended to leave such determinations to agency expertise to be handled via regulatory authority.' That's not just arrogance, that is arrogance on steroids. […] The Biden administration should have never introduced this rule. But now we, the policymaking branch of government, must end it. I urge all my colleagues to stand up for the Senate and vote for this restoration of Article One powers."

Congress has not provided the DOT with any statutory authority to implement this proposal. It was thoroughly debated and intentionally left out of the Bipartisan Infrastructure Law. FHWA's new rule resembles a 2017 Obama administration rule which the Trump administration repealed in 2018 after reconsidering the legal authority under which it was promulgated. Recently, two federal courts issued decisions against the rule, reiterating Congress never gave the Executive Branch this authority.

"Colleagues, the absence of a prohibition is not a license for the bureaucracy to do whatever it pleases. These court rulings underscore agencies must abide by the law, not invent the authority they desire," said Cramer. "Several states have resoundingly rejected this illegal rule. Several state departments of transportation objected to it in writing, and several states joined this litigation and 50 senators have cosponsored this Congressional Review Act."

Additionally, the agency's proposal is not workable, as illustrated by comments from a majority of state DOTs and attorneys general, which raised concerns or outright opposed it.

"If the people, through Congress, believe that the states should spend the time and money necessary to measure and report GHG emissions and set declining emission targets, they may do so by amending Section 150 or passing a new law. 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,"said Judge James Wesley Hendrix of the U.S. District Court for the Northern District of Texas.

"If the Administrator were allowed to shove national greenhouse-gas policy into the mouths of uncooperative state Departments of Transportation, this would corrupt the separation of sovereigns central to our lasting and vibrant system of federalism. Neither the Constitution nor the Administrative Procedure Act authorizes administrative ventriloquism,"said Judge Benjamin Beaton of the U.S. District Court for the Western District of Kentucky.

Over the past year, Senator Cramer has engaged in numerous efforts to prevent the Biden administration from finalizing this mandate. In December 2023, he penned an op-ed in the Wall Street Journal highlighting FHWA's lack of statutory authority to issue the rule, and stressed its unworkable nature for rural states.

In November 2023, Senators Cramer, Capito, and Manchin introduced an amendment (#1241) to the bipartisan Transportation Appropriations bill, which would have defunded the proposed rule. While the amendment was germane and bipartisan, Democrats in the Senate demanded a 60-vote threshold to ensure its defeat. During a speech on the Senate floor, Senator Cramer promised to introduce a CRA resolution of disapproval to overturn the rule and committed to an amicus brief in support of overturning the rule in court. In December 2023, 21 state attorneys general, including North Dakota, filed litigation challenging the final rule.

Click here for resolution text. Click here for a one-pager. Click here for a letter of support from stakeholders.

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