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AG Derek Schmidt opposes latest Biden administration effort to impose Green New Deal through bureaucracy

KANSAS, October 14 - U.S. Department of Transportation seeks net zero emissions on highways by 2050

TOPEKA – (October 14, 2022) – Kansas Attorney General Derek Schmidt is pushing back against yet another attempt by the Biden administration to impose the so-called Green New Deal on states through new regulations from the U.S. Department of Transportation, despite the lack of authority from Congress.

Schmidt joined two coalitions of state attorneys general in filing comment letters yesterday with the U.S. Department of Transportation regarding a proposed rule from the Federal Highway Administration (FHWA) that would require all 50 states, Puerto Rico and the District of Columbia to reduce on-road CO2 emission to net-zero by 2050. The coalitions cite a U.S. Supreme Court decision earlier this year which struck down similar efforts dating to the Obama administration, saying they exceeded regulatory agencies’ legal authority.

“Given the Supreme Court recently made clear in West Virginia v. EPA that even the EPA cannot use its existing authority to take unprecedented and unauthorized actions to address climate change, such action is clearly beyond the authority Congress has given FHWA,” Schmidt wrote with 19 other attorneys general. At Schmidt's direction, Kansas was a petitioner in that West Virginia appeal that successfully challenged the Obama/Biden administration's regulatory efforts to implement part of the Green New Deal.

The attorneys general also make clear that the proposed measure violates the principles of federalism by requiring states to implement a federal regulatory program. The attorneys general note that the Supreme Court has said that “the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.’”

Further, the attorneys general note that FHWA issued a similar rule, which was repealed after the agency determined that the measure may duplicate “existing efforts in some States” and imposed “unnecessary burdens on State DOTs and MPOs [Metropolitan planning organization] that were not contemplated by Congress.”

In the second letter, sent by Schmidt and 17 other attorneys general, the argument is made that the data relied upon to set the so-called “social cost of carbon” was developed by an interim working group. Because it is not a reliable measure of the costs and benefit “they almost certainly overstate the benefits, meaning that the reductions required to equal estimated compliance are far higher” than what the FHWA is predicting.

The comments are the latest effort by Schmidt to hold the Biden administration accountable and prevent it from exceeding its legal authority to impose regulations beyond what is granted by congressional action. Schmidt has also filed comments objecting to a proposed review of Nationwide Permit 12 by the U.S. Army Corps of Engineers outside of its regular review schedule. The permit is one of several such regulatory actions that govern the activities related to pipeline and other energy infrastructure projects, including construction and routine maintenance. Schmidt also filed comments opposing the Biden administration’s proposal to place a “fee” on methane emissions from oil and natural gas producers. In addition, litigation filed by Schmidt and other state attorneys general over the Biden administration’s executive order directing agencies to apply “social cost of carbon” when considering project permits and other energy related activities remains pending in federal court.

A copy of the two comment letters regarding the FHWA rules can be found at https://bit.ly/3T0gS9e.