AASHTO Journal

Eight States Sue USDOT for Suspending GHG Emissions From Performance Measures

Eight states filed suit Sept. 20 against the U.S. Department of Transportation, news services reported, over the Trump administration's suspension of a greenhouse gas performance measure for the federal-aid highway system, which was in a regulation scheduled to take effect soon after President Trump took office.

Courthouse News said California led the suit, which was joined by the California Air Resources Board and the states of Iowa, Maryland, Massachusetts, Minnesota, Oregon, Vermont and Washington.

It named as defendants both the USDOT and the Federal Highway Administration, which had promulgated the regulation and its change under the new administration, plus Transportation Secretary Elaine Chao and FHWA Deputy Administrator Brandye Hendrickson, who is currently the highest ranking official there.

capitol0816.jpgThe FHWA's performance measures rule under the Obama administration had included a requirement for state DOTs to measure GHG emissions and take steps to reduce them, which some critics had said went beyond the scope of legislation that called for setting up a system of measures to improve performance of the highway system supported by federal funds.

Upon taking office Jan. 20, President Trump directed agencies to freeze all regulations that had not yet taken effect, and then review them for possible revisions.

The FHWA subsequently issued a May 19 Federal Register notice saying that it would indefinitely delay the GHG portion and deal with it in a separate rulemaking, but that the majority of the new regulation on assessing highway system performance, freight movement and congestion mitigation was effective on May 20.

In a copy of their suit reported by Courthouse News, the plaintiffs said the GHG measure would require state DOTs "to track on-road greenhouse gas emissions within their jurisdictions and set locally appropriate targets for GHG emissions on national highways."

It also said the GHG measure "incentivizes the funding of transportation strategies that will achieve the desired outcome: Reducing GHG emissions."

The plaintiffs argued that the Trump administration in both delaying and suspending that part of the FHWA rule violated public notice and comment requirements of the Administrative Procedure Act. They asked the federal court for the Northern District of California to issue an injunction "compelling defendants to vacate the delay rules and the suspension rule for failure to comply with the APA."

They also said the effects of climate change related to GHG emissions harm them all through such developments as "increased numbers and severity of heat waves, greater air pollution, more frequent and intense storms and associated flooding, reduced snowpack and water supplies, increased wildfires, and sea level rise."

They said that since climate change is not something states can individually address, "nationwide efforts, such as the GHG measure, are required to adequately lessen or slow the effects."

And since transportation sector emissions are a large part of the U.S. total, delay and suspension of measuring them "harms plaintiffs by increasing the likelihood that most of the national emissions from the federal highway system will continue unabated."

Questions regarding this article may be directed to editor@aashtojournal.org.

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