Joco Today

U.S. Senator Roger Marshall has joined a bicameral amicus brief led by Senator Kevin Cramer, calling on federal courts to block the Harris-Biden Federal Highway Administration's (FHWA) final rule. This rule requires state departments of transportation and metropolitan planning organizations to measure greenhouse gas emissions on the highway system and set declining targets.

In April 2024, the Senate passed a bipartisan Congressional Review Act to oppose this FHWA rule. Additionally, 21 state attorneys general have filed litigation challenging the regulation. The U.S. District Court deemed the Biden Administration's rule illegal in April, but the FHWA appealed to the Sixth Circuit Court of Appeals, where it is still under consideration.

The amicus brief from Senators Marshall and Cramer requests that the Sixth Circuit Court of Appeals uphold the District Court's decision from April, which vacated the rule. "Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation," they argued. "[FHWA] contorted ancillary existing authorities to impose one anyway."

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

The brief further argues that Congress debated and rejected granting FHWA authority for such rules and accuses FHWA of misconstruing Congressional intent. It also claims that this rulemaking is inconsistent with recent Supreme Court decisions limiting Executive Branch overreach and that FHWA is bypassing principles of federalism for its policy agenda.

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