OKC Standard

In November 2023, the Federal Highway Administration (FHWA) implemented a rule mandating state departments of transportation and metropolitan planning organizations to track greenhouse gas emissions on highways and establish decreasing targets. U.S. Senator Markwayne Mullin (R-OK) joined U.S. Senator Kevin Cramer (R-ND), who is the Ranking Member of the Senate Environment and Public Works Subcommittee on Transportation and Infrastructure, in a bipartisan Congressional Review Act joint resolution aimed at overturning this rule. The resolution was passed by the Senate in April with a vote of 53 to 47, highlighting Congress' disapproval of what it perceives as FHWA's overreach. During a speech on the Senate floor, Cramer expressed his commitment to supporting an amicus brief that seeks to overturn the rule in court.

Following the finalization of the rule, 21 state attorneys general, including North Dakota's, initiated litigation challenging it. The U.S. District Court for the Western District of Kentucky deemed the Biden administration's rule illegal; however, FHWA appealed this decision to the Sixth Circuit Court of Appeals where it remains under review. In October, Cramer and U.S. Senator Shelley Moore Capito (R-WV), who is also a Ranking Member of the EPW Committee, led their colleagues in filing an amicus brief backing North Dakota's challenge against the rule.

Additionally, Texas filed its own lawsuit against FHWA resulting in a ruling from the District Court for the Northern District of Texas which vacated the Biden rule. This decision has been appealed by the Department of Transportation. Currently, Cramer and Capito are leading efforts in submitting another bicameral amicus brief urging the Fifth Circuit Court of Appeals to uphold this district court decision.

The brief contends that Congress debated but ultimately did not grant FHWA authority to enforce GHG performance measure rules and accuses FHWA of misinterpreting Congressional intent to justify its actions improperly. It further argues that such rulemaking contradicts recent Supreme Court decisions limiting Executive Branch overreach and claims FHWA is sidestepping federalism principles to advance its policy goals.

"Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation," argued members involved in this action. "In doing so, [FHWA] impermissibly usurped the Legislative Branch’s authority and promulgated the GHG performance measure without statutory authority delegated by Congress."

They continued: "Put simply, when [FHWA] established a GHG performance measure regulation, it exceeded powers Congress authorized. And it did so both at expense of separation of powers and in violation of Administrative Procedure Act."

Additional signatories include several U.S. Senators such as John Barrasso (R-WY), John Boozman (R-AR), Bill Cassidy (R-LA), among others; along with Representatives Sam Graves (R-MO) and Rick Crawford (R-AR).