FHWA Codifies Performance Management Requirements, Excludes GHG Emissions

May 25, 2017

On May 19, the Federal Highway Administration (FHWA) codified rulemaking to establish new performance management requirements as required under the 2012 and 2015 surface transportation bills, Moving Ahead for Progress in the 21st Century Act (MAP-21) and Fixing America’s Surface Transportation (FAST) Act.

But at the last minute, FHWA delayed the effectiveness of controversial sections related to greenhouse gas emissions measures that were proposed by the Obama Administration. According to the rule (PM#3), by the fall of 2018, states and MPOs will need to report on performance measures and targets relating to National Highway System (NHS) performance, freight movement on interstates, and the Congestion Mitigation and Air Quality (CMAQ) Improvement Program along with the measures established in PM#1 and PM#2.

The new mandated performance measures in PM#3 that will go in effect are:

  • Percent of Person-Miles Traveled on the Interstate That Are Reliable;
  • Percent of Person-Miles Traveled on the Non-Interstate NHS That Are Reliable;
  • Truck Travel Time Reliability (TTTR) Index;
  • Annual Hours of Peak-Hour Excessive Delay Per Capita;
  • Percent of N SOV Travel; and
  • Total Emission Reductions.

The GHG measure, which was ultimately excluded, was written as the Percent Change in CO2 Emissions on the NHS Compared to the Calendar Year 2017.

The NPRM has been available for comment since April 22, 2016, and since then commentary and criticism for the GHG measure have been voiced in Congress, the press, and through public comments. In August 2016, ETW published op-eds from both Senator Boxer and Senator Inhofe in a Point/Counterpoint that expressed their respective support and opposition of the inclusion of the measure.

The Association of Metropolitan Planning Organizations (AMPO) and the American Association of State Highway and Transportation Officials (AASHTO) issued a joint comment just days after the release of the NPRM suggesting that additional time for public input was needed. Their letter questioned the DOT’s interpretation of Congress’ intent and anticipated a large amount of state and regional discussion moving forward due to the extent of requirements included in the rulemaking as well as the complex and controversial nature of the rule.

The National Association of City Transportation Officials (NACTO) also submitted comments on behalf of their membership in August 2016 supporting the GHG measure, while also suggesting that more specific and stringent measures could be developed.

It is no surprise that the current administration chose to hold off on codifying a requirement to measure and track CO2 emissions – nor is their reason for doing so, which is that the measure “would benefit from further notice and comment procedures under the Administrative Procedure Act (APA)” (which is exactly what ETW’s Jeff Davis predicted might happen when the rule was first published back in January).

Normally, changes to a proposed rulemaking – such as indefinitely delaying certain sections – would have to go through a public commenting period before the final rulemaking could be put into effect. However, according to the Federal Register, “Given the imminence of the effective date of the PM#3 Final Rule, seeking prior public comment on this delay of the GHG measure would be impractical” and that “Good cause exists to suspend the effective date of the GHG measure without notice and comment.”

Therefore, the final rule went into effect on May 20, 2017. FHWA will issue a notice of proposed rulemaking to address the GHG measure requirements in the upcoming weeks and open it back up for comments at that time.

Those in opposition to the measure do not believe that MAP-21 authorizes DOT to require a CO2 measure. The stated goal in MAP-21 is to assess CMAQ projects: the stated purpose of CMAQ is to reduce “ozone, carbon monoxide, or particulate matter,” but by measuring additional pollutants, it may be possible to track the efficiency in the use of federal funds to an even higher degree.

According to the Environmental Protection Agency (EPA), 27% of U.S. GHG emissions in 2015 came from the transportation sector. As Emil Frankel noted in ETW last year, if the U.S. does wish to uphold its commitment to reduce GHG emissions in the Paris climate agreement, it will need to decrease transportation mobile source emissions. One method of doing so is to track GHG emissions by using a standard and uniform measure, such as the one proposed in PM#3.



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