Biden administration plan requiring states to regulate greenhouse gas emissions on highways

July 28, 2022

A Biden administration draft plan aims to get cities and states with National Highway System roadways within their boundaries to regulate greenhouse gas emissions.

The U.S. Department of Transportation’s Federal Highway Administration released a draft rule that would require the transportation departments of metropolitan planning organizations and states to measure the amount of greenhouse gases emitted within their boundaries and establish declining targets to reduce those emissions.

Currently, the amount of greenhouse gases emitted on the 29,800 lane miles of highway in the "Crossroads of America."

“[W]e are taking an important step forward in tackling transportation’s share of the climate challenge, and we don’t have a moment to waste,” said transportation secretary Pete Buttigieg. “Our approach 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.”

The transportation sector was responsible for 27% of the nation’s total yearly greenhouse gas emissions in 2020, the largest share of any economic sector. According to the U.S. Environmental Protection Agency, 90% of the fuel used for transportation is petroleum-based.

The law that established the National Highway System calls for the highway administration to establish performance measures that state transportation departments can use to assess the performance of interstate and non-interstate highways that are part of the NHS.

But the law does not specifically delineate “performance,” giving the Biden administration leeway in its interpretation of the law, or so the highway administration believes.

The rule may face legal challenges from states opposed to the rule and from federal courts willing to stamp out liberal interpretations of statutes during the current administration.

The U.S. Supreme Court ruled earlier this year that the EPA did not have the authority to make industry-wide regulations on greenhouse gases because the statute that empowered it to regulate air pollution, the Clean Air Act, does not specifically give the agency that authority.

The precedent could be used to prevent the rule’s implementation.

At least one state’s transportation department, the South Carolina Department of Transportation, has expressed “concerns” about whether the Federal Highway Administration’s interpretation of “performance measures” is within the agency’s power.

“SCDOT is concerned that the [rule] exceeds the legislative intent provided by Congress and respectfully requests the FHWA reconsider its proposal,” the South Carolina Department of Transportation wrote in public comments for the rule. “This is not to debate major policy questions like [greenhouse gases] or what methods should be used to address them. Rather, SCDOT’s concerns are based on questions of statutory language and intent; agency jurisdiction; and potential delays in building 21st century transportation infrastructure that could result.”

Several dozen members of Congress, including Rep. Andre Carson of Indianapolis, have signed a letter of support for the rule.

The agency will accept public comments on the rule until Oct. 13.

Biden administration plan requiring states to regulate greenhouse gas emissions on highways