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Two Federal Courts Agree FHWA’s Greenhouse Gas Emissions Rule is Illegal

BISMARCK – U.S. Senator Kevin Cramer (R-ND) released the following statement after two federal courts issued decisions against the Federal Highway Administration’s (FHWA) rule requiring states to measure tailpipe emissions on the National Highway System and then set declining targets to reduce emissions from roadway travel. In a clear rejection of the administration’s overreach, both decisions reiterate Congress never gave the Executive Branch this authority.

“The absence of a prohibition is not a license for the bureaucracy to do whatever it pleases,” said Cramer. “As I’ve said repeatedly over the past year, Congress debated and declined to give FHWA the authority to promulgate this rule, yet the agency pushed forward anyway. These rulings underscore agencies must abide by the law, not invent the authority they desire. North Dakota resoundingly rejects this illegal rule. North Dakota’s Department of Transportation objected in writing, the state joined this litigation, and I am leading bipartisan legislation to kill it. The Biden administration should’ve never introduced this rule, but now they should recognize their failures and drop it.” 

“If the people, through Congress, believe that the states should spend the time and money necessary to measure and report GHG emissions and set declining emission targets, they may do so by amending Section 150 or passing a new law. But an agency cannot make this decision for the people. An agency can only do what the people authorize it to do, and the plain language of Section 150(c)(3) and its related statutory provisions demonstrate the DOT was not authorized to enact the 2023 Rule,” said Judge James Wesley Hendrix of the U.S. District Court for the Northern District of Texas.

“If the Administrator were allowed to shove national greenhouse-gas policy into the mouths of uncooperative state Departments of Transportation, this would corrupt the separation of sovereigns central to our lasting and vibrant system of federalism. Neither the Constitution nor the Administrative Procedure Act authorizes administrative ventriloquism,” said Judge Benjamin Beaton of the U.S. District Court for the Western District of Kentucky.


In February, Senator Cramer introduced a bicameral, bipartisan Congressional Review Act (CRA) Joint Resolution of Disapproval to nullify the FHWA rule. Half the Senate has already signed on as a cosponsor. Similarly, a majority of states submitted concerns and voiced their opposition to the rule’s assumption that mass transit is a viable solution, and at least half of the Senate supports the resolution before the CRA has even come up for a vote.

During an Environment and Public Works Committee hearing in June of 2023, Senator Cramer questioned FHWA Administrator Shailen Bhatt on the agency’s GHG Emissions Performance Measure Notice of Proposed Rulemaking.

In October 2022, he also joined U.S. Senator Shelley Moore Capito (R-WV) in sending a letter to the FHWA, voicing strong opposition to the agency’s proposal to implement a GHG emissions performance measure. Similarly, the Transportation Departments of North Dakota, Idaho, Montana, South Dakota, and Wyoming submitted formal comments opposing FHWA’s GHG proposed rulemaking, emphasizing the agency’s lack of authority to promulgate this rule.