Guest Op-Ed: Congress Did Not Intend Greenhouse Gases to Be Measured for Highway Performance

Guest op-ed by Senator James M. Inhofe (R-OK), chairman, Senate Committee on Environment and Public Works

August 18, 2016

My committee, the U.S. Senate Committee on Environment and Public Works, not only writes and enacts laws to provide direction for programs within our jurisdiction; it is also our job to oversee implementation of laws by federal agencies.. Currently two laws are undergoing this process: the Moving Ahead for Progress in the 21st Century (MAP-21) Act (P.L. 112-141), enacted with strong bipartisan support in 2012, as well as the more recent Fixing American’s Surface Transportation (FAST) Act (P.L. 114-94), enacted last December.

As the lead Republican author of these two laws, I am proud of the legislative reforms we accomplished aimed at improving our Federal transportation system. In particular, MAP-21 established performance measures to ensure the most efficient use of federal transportation funds.  It focuses the program on real world outcomes rather than meaningless bureaucratic checklists, improves accountability by establishing an outcome-driven system to track performance, and directs states and local agencies to consider how they are achieving performance targets when planning for and selecting projects. The performance measures are limited to a select number of specific goals, including safety, infrastructure condition, system reliability, and freight movement. These measures will increase accountability and transparency and help ensure that our citizens are getting the most for their tax dollars.

The Federal Highway Administration (FHWA), along with the U.S. Department of Transportation, has been working to implement these performance measures. On April 22, FHWA posted a Notice of Proposed Rulemaking (NPRM) in the Federal Register to propose national performance management measure regulations to assess the performance of the National Highway System, freight movement on the Interstate System, and the Congestion Mitigation and Air Quality Improvement (CMAQ) Program, as required by the MAP-21 and the FAST Act.

Unfortunately, rather than implementing the law passed by Congress, FHWA is proposing to divert attention and resources away from highway and bridge conditions, performance, safety, and attainment of national ambient air quality standards by proposing to adopt a greenhouse gas (GHG) performance measure. In this instance, the Obama administration appears to be diverting FHWA’s time and resources away from achieving the performance goals set forth in law – a law that was enacted with overwhelming bipartisan support from Congress.

FHWA has no authority to establish a GHG measure. The only performance measure related to air quality is directly tied to the implementation of the CMAQ program, and the CMAQ program is limited to programs or projects to help achieve or maintain ozone, carbon monoxide, or particulate matter national ambient air quality standards. GHGs are not part of the CMAQ program and, just as FHWA has no authority to expand the performance measures listed under 23 U.S.C. §150(c), FHWA has no authority to expand the scope of the CMAQ program under 23 U.S.C. §149.

FHWA has already conceded that it does, in fact, lack the authority to implement its GHG proposal. The Federal Register notice fails to set forth any basis for statutory authority for FHWA to establish a GHG performance measure. Recently, FHWA confirmed in a final rule released for Statewide and Nonmetropolitan Transportation Planning that it does not have authority to impose additional performance measures on States and local governments, beyond those specified by Congress. I led five other Senators on my committee in raising these concerns in our comments to the proposed rule (read the letter here).

Should FHWA’s GHG proposal be adopted as a final rule, challenges to this measure will distract FHWA from implementing the measures specified by Congress. One can easily see this same pattern at EPA, which has diverted resources away from its core missions to pursue its so called Clean Power Plan, another GHG regulation, which the Supreme Court has put on hold because it likely goes beyond the authority Congress granted in the Clean Air Act.

The goal of the laws I co-authored is to improve the safety and advance the modernization of our roads and bridges.   FHWA’s proposed GHG regulation would divert the limited time and resources of States and local governments away from this goal to pursue instead the administration’s unlawful and overzealous climate agenda.

In order to effectively improve the performance of our Federal-aid highway program and provide a means to the most efficient investment of Federal transportation funds, FHWA must faithfully implement section 1203 of MAP-21, as enacted by Congress, and forego inclusion of an unauthorized GHG performance measure.

Senator Inhofe’s views are his own and do not necessarily reflect those of the Eno Center for Transportation.

For an opposing view, see this op-ed from Senator Inhofe’s Democratic counterpart, Senator Barbara Boxer (D-CA).

(Ed. Note. 8-22-2016 – After this op-ed was published, a coalition of 23 highway stakeholder groups submitted comments to the Federal Highway Administration on the proposed rule in agreement with Senator Inhofe’s position. Those comments can be read here.)

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