Jefferson Reporter

U.S. Senators Katie Britt, Kevin Cramer, and Shelley Moore Capito have led a group of Congressional colleagues in filing an amicus brief to challenge a Federal Highway Administration (FHWA) rule. The rule, adopted in November 2023, mandates state departments of transportation and metropolitan planning organizations to measure greenhouse gas emissions on the highway system and set declining targets.

Senator Britt, along with other Senate members, previously supported a bipartisan Congressional Review Act joint resolution to overturn this rule. The resolution passed the Senate in April with a vote of 53 to 47, highlighting Congress' bipartisan disapproval of what they consider FHWA's overreach.

Following the finalization of the rule, 21 state attorneys general filed litigation against it. In April 2024, the U.S. District Court for the Western District of Kentucky ruled the Biden-Harris Administration's regulation illegal. However, FHWA appealed this decision to the U.S. Court of Appeals for the Sixth Circuit, where it is still under review.

The amicus brief argues that Congress had debated and rejected giving FHWA authority over greenhouse gas performance measures. It claims that FHWA misconstrued Congressional intent to justify its actions and that its rulemaking conflicts with recent Supreme Court decisions limiting Executive Branch overreach.

"Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation," stated the members involved in filing the brief. They further argued that "[FHWA] impermissibly usurped the Legislative Branch’s authority."

Additional cosponsors of this initiative include Senate Minority Leader Mitch McConnell and several other Republican senators such as John Barrasso, Ted Cruz, Marco Rubio, and Representatives like Sam Graves and Rick Crawford.