Senator Marshall Joins Bicameral Amicus Brief to Overturn Unlawful Emissions Rule

Washington, D.C. – U.S. Senator Roger Marshall, M.D. joined Senator Kevin Cramer’s (R-ND) bicameral amicus brief calling on the federal courts to block Harris-Biden Federal Highway Administration’s (FHWA) final rule requiring state departments of transportation and metropolitan planning organizations to measure greenhouse gas (GHG) emissions on the highway system and set declining targets. 

In April 2024, the Senate passed a bipartisan Congressional Review Act to block the FHWA’s final rule. Additionally, 21 state attorneys general filed litigation challenging the regulation. The U.S. District Court found the Biden Administration rule to be illegal in April, but FHWA appealed the decision to the Sixth Circuit Court of Appeals and it remains under further consideration. 

The amicus brief led by Senators Marshall and Cramer requests that the Sixth Circuit Court of Appeals Court uphold the District Court decision from April, vacating the rule.

“Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation, but [FHWA] contorted ancillary existing authorities to impose one anyway,” the members argued. “In doing so, [FHWA] impermissibly usurped the Legislative Branch’s authority and promulgated the GHG performance measure without statutory authority delegated by Congress.

“Put simply, when [FHWA] established a GHG performance measure regulation, it exceeded the powers Congress authorized. And it did so both at the expense of separation of powers and in violation of the Administrative Procedure Act,” continued the members. 

The brief argues Congress debated and rejected granting FHWA the authority to issue GHG performance measure rules and the FHWA then intentionally misconstrued Congressional intent to justify its improper exercise of authority. It also argues the rulemaking is not consistent with recent Supreme Court decisions paring back Executive Branch overreach, and FHWA is bypassing principles of federalism to further its own policy agenda.

Click here to read the amicus brief.