A plan requiring states to set progressively lower targets for tailpipe emissions would potentially set dangerous precedents for future highway funding, according to road and bridge builders.
The 90-page proposed rule, announced by the Federal Highway Administration on Thursday, is aimed at helping achieve the Biden administration’s goal of a 50%-52% reduction from 2005 levels of greenhouse gas (GHG) pollution in 2030, on a course toward reaching net-zero emissions by no later than 2050.
“States have a critical role to play as we work nationwide to bring down greenhouse gas emissions and slow those impacts,” commented Deputy FHWA Administrator Stephanie Pollack. “State laws already require 24 states and the District of Columbia to set targets and track their greenhouse gas emissions, and this proposed rule would bring this locally proven approach to scale nationwide.”
The rule would reinstate a similar climate reduction proposal by the FHWA under the Obama administration that was enacted in 2017 but repealed by the Trump administration in 2018. Trump’s FHWA interpreted the definition of “performance” to exclude environmental performance, sticking instead to performance goals aimed at improving infrastructure condition and safety, and reducing highway congestion.
But FHWA points out in the proposed rule that while the 2018 repeal of the GHG measure asserted that federal statute does not require the agency to adopt a GHG emissions measure, the law does not prohibit FHWA from doing so.
By reinstating emissions performance measures, the administration now gives states “the flexibility they need to set their own emission reduction targets, while providing them with resources from President Biden’s Bipartisan Infrastructure Law to meet those targets and protect their communities,” said Secretary of Transportation Pete Buttigieg.
However, the American Road and Transportation Builders Association (ARTBA), which advocates for infrastructure investment policies on behalf of transportation construction companies, contends that by drifting into environmental policy the FHWA is acting outside of its core transportation mission.
“We can’t have agencies straying outside of their lanes because you then get confusing regulatory overlap,” Nick Goldstein, ARTBA’s vice president for regulatory and legal issues, told FreightWaves. “This isn’t something that should be coming from FHWA.”
In addition, while the infrastructure law was passed on a bipartisan basis to make billions of dollars available to help states address climate goals, giving the FHWA the power to impose climate measures was not part of the deal, Goldstein argues.
“Transportation bills have traditionally been bipartisan — that’s how they get done,” he said. “But if you have an administration reading a policy priority that’s not in the law, you end up poisoning the well. In the future, lawmakers will be afraid that new regulations will pop up after the fact, which is going to make the process more complicated and much more difficult to get a substantive transportation reauthorization or infrastructure law passed.”
Joung Lee, deputy director and chief policy officer for the American Association of State Highway and Transportation Officials, agrees that congressional intent “plays a huge part” in shaping whether and how the new climate proposal moves forward.
“We want to make sure that it has a sound statutory basis for it, and look forward to working with DOT and FHWA in finding the right balance,” he told FreightWaves.
“At the end of the day, we share the outcome that [the administration] wants to see, which is reduced carbon emissions. How we get there, the devil’s in the details. We’ll be tapping into our membership to get their expert input that will help inform FHWA’s rulemaking process.”
A 90-day comment period will begin when the proposed rule is published in the Federal Register.
