The Federal Highway Administration (FHWA) recently released a prepublication version of its final rule establishing a greenhouse gas (GHG) emissions measure. The final rule establishes a method for measurement of GHG emissions associated with transportation and requires state departments of transportation (State DOTs) and metropolitan planning organizations (MPOs) that have National Highway System (NHS) routes within their jurisdiction to establish targets for reducing GHG emissions from on-road sources and to report on their efforts to meet those targets. The rule will take effect thirty days after the date of its publication in the Federal Register. State DOTs are required to establish targets and report those targets by February 1, 2024. Subsequent targets would be established and reported by no later than October 1, 2026.
In the preamble to the final rule, FHWA spent considerable effort explaining how the rule: (1) is not a mandate – because it does not impose penalties for missing targets, (2) is not unfunded – because the Infrastructure Investment and Jobs Act (IIJA) and the Inflation Reduction Act (IRA) make billions of dollars in funding available to address carbon pollution reduction, and (3) is authorized under current law – despite no specific authorization in the IIJA.
Vehicle and engine emissions have long been directly regulated by the Environmental Protection Agency and the California Air Resources Board; this rule would require infrastructure decisionmakers to consider ways to reduce CO2 emissions of road users when programming project funds.
The rule is the latest about-face in a series of rulemakings on this subject during the Obama, Trump, and Biden Administrations, and it is likely to face challenges from Members of Congress and perhaps some western states.
