Source: United States Senator Kevin Cramer (R-ND)
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WASHINGTON – U.S. Senator Kevin Cramer (R-ND) at a Senate Environment and Public Works (EPW) Committee, questioned Federal Highway Administrator (FHWA) Shailen Bhatt on the agency’s Greenhouse Gas (GHG) Emissions Performance Measure Notice of Proposed Rulemaking, which imposes GHG performance measures on state departments of transportation and metropolitan planning organizations without any new authority from Congress.
Discussing the FHWA’s legal authority for its proposed GHG rule, Senator Cramer highlighted recent Supreme Court decisions recognizing federal agencies must only exercise authority expressly given to them by law.
“I want to speak to two big recent Supreme Court cases. You, using the major questions doctrine, stating emphatically agencies don’t have authority that isn’t given to them in law. The first one being West Virginia vs. EPA, and the other one being the WOTUS rule. Now they’re going to take up maybe a chevron doctrine. It’s becoming increasingly clear the bureaucracy is not a fourth branch of government, they’re policymakers,” added Senator Cramer.
He also addressed the rule’s lack of practicality, especially in rural states like North Dakota, where commuter buses already exist where they make sense, and subways are not feasible.
“I want to stress it’s impractical in places, rural places especially. We just aren’t going to build subways in North Dakota to get people to their farm. If this is going to proceed, I’d rather have you withdraw like you wisely did with the previous memorandum, but I hope there’s consideration for the uniqueness or the different qualities or places across our very diverse country,” said Senator Cramer.
“I hear you on the impacts particularly for rural states and others. It’s not likely to build a subway around Devil’s Lake, but I would simply say this bipartisan infrastructure bill did have a climate change title in it. […] I think what we’re trying to look at here is not to penalize states for their greenhouse gas emissions but get them to begin tracking greenhouse gas emissions. If 30% of our GHG is coming from the transportation sector—maybe it’s not a subway, but maybe it’s alternative fuels like electric vehicles, other ways to drive that down,” responded Mr. Bhatt.
Senator Cramer further noted during the Infrastructure Investment and Job’s Act negotiations, Congress considered but specifically rejected a GHG performance measure policy.
“We discussed this specific issue and decided not to do it. In other words, there’s not a lot of ambiguity about the intent of the Congress in this legislation,” said Senator Cramer.
Senator Cramer concluded by discussing concerns over agencies’ decision to utilize vague and unclear authorities to pursue their preferred policies.
“If we’re going to be this general with our authorities at the administrative level, the next administration might be of a different persuasion and take that slush fund from EPA and say, ‘let’s build a wall with solar panels at the southern border.’ It seems extreme, and it probably is, but there’s a lot of less extreme examples I could probably come up with Democrats would find objectionable for good reasons,” concluded Senator Cramer.