The U.S. Federal Highway Administration's ("FHWA") new rule establishing a performance-based method for measuring greenhouse gas ("GHG") emissions that are associated with transportation on the National Highway System was vacated by two separate federal courts.
As discussed in our last edition of The Climate Report, two separate lawsuits were filed by the states of Texas and Kentucky to enjoin the implementation of the GHG rule and to challenge the FHWA's authority to promulgate it. In Texas's suit, on March 27, 2024, a federal judge struck down the GHG rule on the grounds that Congress never gave the FHWA the authority to promulgate the rule. The judge found that the statutory authority relied on by the FHWA for the GHG rule "focuses on the infrastructure's effectiveness in facilitating travel, commerce, and national defense—not environmental outputs of vehicles using the systems."
In Kentucky's suit, which was filed by a coalition of 21 Republican-led states, a federal judge, on April 1, 2024, similarly held that the FHWA overstepped its statutory authority in promulgating the GHG rule. The court took issue with the FHWA attempting to "shove national greenhouse-gas policy into the mouths of uncooperative state Departments of Transportation," and concluded that without an underlying statutory basis, the GHG rule could not "be justified as a tool to influence state decision-making regarding emissions reductions—nor as a mere reporting requirement." The court also found the rule to be arbitrary and capricious and that it would result in states incurring significant compliance costs.
While these two decisions are a setback for the Biden Administration's climate change agenda, the FHWA has appealed the Texas suit to the United States Court of Appeals for the Fifth Circuit and the Kentucky suit to the United States Court of Appeals for the Sixth Circuit.
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