In late September, the Federal Highway Administration (FHWA) reinstated, on a temporary basis, a requirement that states account for on-road greenhouse gas emissions (GHG) when planning transportation improvement projects. On Oct. 5, FHWA proposed a rulemaking to formally repeal the measure with a goal of finalizing it by spring 2018. FHWA pointed out that a GHG measure is not required by statute and is a burdensome and an unnecessary addition to the planning review. FHWA limited the comment period to 30 days in an effort to eliminate this requirement before states would be required to implement it.
As previously reported by AGC, FHWA had announced in May 2017 that it would suspend a requirement for states to develop performance measurements for tracking GHG emissions for federal-aid highway projects; the requirement is part of a larger rulemaking establishing new performance measurement standards, as required under provisions of the 2012 and 2015 transportation authorization legislation. AGC supported this decision, as it tracked AGC’s lengthy comment letter to FHWA, in which AGC questioned FHWA’s legal authority (under the transportation bills) to require GHG emissions to be measured for highway performance and detailed the many reasons why this would not be a good idea.
A group of states filed a lawsuit challenging FHWA’s indefinite delay of the GHG measure, as part of the transportation project planning process. The plaintiffs, including California, Iowa, Maryland, Massachusetts, Minnesota, Oregon, Vermont and Washington, challenged the Administration’s authority to drop the rule as a violation of the Administrative Procedures Act, which establishes how Federal agencies are to adopt rules. FHWA decided to lift the suspension of the GHG performance standard to evade the lawsuits from states and environmental groups.