WASHINGTON – U.S. Senators Bill Cassidy, M.D. (R-LA), Kevin Cramer (R-ND), Shelley Moore Capito (R-WV), and colleagues filed an amicus brief urging the Fifth Circuit Court of Appeals to overturn the Federal Highway Administration’s (FHWA) rule imposing greenhouse gas (GHG) emissions performance measures on state departments of transportation and metropolitan planning organizations despite lacking the authority from Congress to do so.
The brief argues Congress debated and rejected granting FHWA the authority to issue GHG performance measure rules and the FHWA then intentionally misconstrued Congressional intent to justify its improper exercise of authority. It also argues the rulemaking is not consistent with recent Supreme Court decisions paring back Executive Branch overreach, and FHWA is bypassing principles of federalism to further its own policy agenda.
“Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation, but [FHWA] contorted ancillary existing authorities to impose one anyway,” wrote the members. “In doing so, [FHWA] impermissibly usurped the Legislative Branch’s authority and promulgated the GHG performance measure without statutory authority delegated by Congress.”
“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,” continued the members.
Cassidy, Cramer, and Capito were joined by U.S. Senators John Barrasso (R-WY), John Boozman (R-AR), John Cornyn (R-TX), Ted Cruz (R-TX), Mike Crapo (R-ID), Steve Daines (R-MT), Joni Ernst (R-IA), Lindsey Graham (R-SC), John Hoeven (R-ND), Cindy Hyde-Smith (R-MS), Cynthia Lummis (R-WY), Roger Marshall (R-KS), Jerry Moran (R-KS), Markwayne Mullin (R-OK), Pete Ricketts (R-NE), Jim Risch (R-ID), Marco Rubio (R-FL), Tim Scott (R-SC), Dan Sullivan (R-AK), John Thune (R-SD), Roger Wicker (R-MS), and U.S. Representatives Sam Graves (R-MO-06) and Rick Crawford (R-AR-01) on the amicus brief.
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