Wednesday’s U.S. House of Representatives Transportation and Infrastructure Committee hearing marked an opportunity for lawmakers to assess recently enacted or proposed Federal transportation rules and regulations. Though the scope of content addressed was broad, representatives focused their questions on modes within the Highways and Transit Subcommittee’s purview. Topics addressed include trucking, steel manufacturing, roadway construction, and passenger transportation safety. Testifying witnesses included: 

• Mr. Tim Duit, President, Duit Construction Co., Inc.; on behalf of the American Road & Transportation Builders Association (ARTBA) 

• Mr. Philip K. Bell, CAE, President, Steel Manufacturers Association (SMA) 

• Mr. William “Lewie” Pugh, Executive Vice President, Owner-Operator Independent Drivers Association (OOIDA) 

• Ms. Beth Osborne, Director, Transportation 4 America (T4A) 

DOT’s Regulatory Authority on Trial 

Subcommittee members asked questions more forcefully than usual. On a surface level, discussion revolved around several recently enacted or proposed rules that affect surface transportation, including the Federal Highway Administration’s (FHWA) greenhouse gas performance measures, implementation of the Inflation Reduction Act’s (IRA) Buy Clean Initiative, and multiple FHWA freight trucking regulations. Through the questions, however, Representatives conveyed larger points, falling along party lines. Democrats argued that regulations, when well-informed, benefit transportation safety and efficiency. Republicans maligned regulations as examples of government overreach, disconnected from the realities that states and individuals experience.  

The Subcommittee’s more fervent energy might be attributable to the Supreme Court’s recent decision to overturn “Chevron Deference”, a judicial that curtails the power of federal agencies to interpret vague Congressional laws by enacting rules and regulations that have requirements that are not very specifically delineated in the law itself. This has the potential to affect many Department of Transportation rulemakings.  

Greenhouse Gas Regulations: Instrument or Impediment? 

First under the microscope was the FHWA’s recent December 2023 rule requiring state DOTs and Metropolitan Planning Organizations (MPOs) to establish greenhouse gas (GHG) performance measures, reflecting carbon dioxide emissions on the National Highway System. Though DOTs and MPOs are free to define their own targets, those targets must reflect decreasing roadway emissions with respect to 2022 levels. Under the rule, DOTs and MPOs would also be required to routinely update the FHWA with their progress on meeting their established targets. A March decision by the U.S. District Court for the Northern District of Texas, however, vacated the rule, effectively nullifying it nationwide.  

(Ed. Note: This is the second time around. FHWA under President Obama issued a GHG performance measure rule ten days before President Trump took office in 2017, which FHWA under Trump then repealed the following year. FHWA under President Biden has now re-issued a GHG performance measure rule.)

Chairman Rick Crawford (R-AR) praised the Texas court’s decision while maligning the rule as an example of the Biden Administration’s “onerous regulatory agenda.” He claimed the requirement would be “disastrous” for rural areas who “can’t build a subway or bike lanes to cut emissions.” Jim Duit, speaking on behalf of the American Road & Infrastructure Builders Association (ARTBA), echoed this sentiment, arguing that the rule could hinder the abilities of states to select the transportation projects that best address their local transportation needs.  

Beth Osborne, Director of Transportation for America (T4A), provided clarification on the purpose of the emissions rule via exchanges with Representatives Chuy García (D-IL) and Robert Menendez (D-NJ). She deemed the rule a “sunshine rule.” Essentially, it is an effort to provide taxpayers with transparency on how their dollars are spent to improve environmental sustainability. This requirement, she argued, would have provided comparable, complete, and accurate highway emissions data when little data currently exists. “You can’t control something you don’t measure,” she explained. Perhaps most importantly, she reminded the Subcommittee that emissions targets are non-binding. If a state or MPO fails to meet their target, “nothing happens.”  

Duit, however, remained unconvinced. When asked by Rep. Salud Carbajal (D-CA) if ARTBA supports anything to reduce greenhouse gas emissions on our roadways – “anything, something” – Mr. Duit responded, “I will do some checking and get back to you, if that’s okay.”  

Buy Clean Initiatives: Helpful or Hurtful? 

Buy Clean initiatives, intended to promote the manufacturing and purchase of low-carbon construction materials, were also scrutinized. Philip Bell, President of the Steel Manufacturers Association (SMA), provided the Subcommittee recommendations to improve the effectiveness of the General Services Administration’s (GSA) six-month Buy Clean pilot. The GSA’s interim requirements, enacted May 2023, established embodied carbon limits on concrete, cement, asphalt, steel, and glass materials that select pilot projects can purchase using IRA funds.  

During his opening statement, Mr. Bell reiterated SMA’s support for Buy Clean programs, stating that “a well-designed Buy Clean program can meaningfully accelerate decarbonization and assist in securing a stable future for the American steel industry.” However, he expressed concerns that GSA’s program establishes a dual standard for steel production. Steel produced from blast furnaces, a high-polluting production method, is subject to more lenient requirements than steel produced using modern electric arc furnaces, a less-polluting method. This incongruity, Bell argued, discriminates against companies who have invested heavily in lower-emissions production methods. A single standard, he elaborated, “is fair to all producers.” Rep. Hank Johnson (D-GA) disagreed that a single standard for steel was valuable but did not clarify his position.  

Trucking Regulations: Onerous or Opportune? 

Recently proposed or enacted Federal Motor Carrier Safety Administration (FMCSA) trucking safety standards proved controversial among Subcommittee members. Citing a large increase in fatal crashes involving large trucks between 2010 and 2021, Democratic members lauded such standards as life-saving. Republican members, backed by William Pugh, Executive Vice President of the Owner-Operator Independent Drivers Association (OOIDA), derided them as misinformed. Pugh provided his thoughts in his opening remarks, explaining that Congress and the DOT have an “inconsistent record when it comes to crafting regulations.” The Infrastructure Investment and Jobs Act (IIJA) provided a “mixed bag” for truckers. 

Multiple regulations were discussed, including speed limiter and rear impact guard requirements for heavy-duty trucks. For brevity, however, we limit our discussion here to that of Automatic Emergency Brakes (AEBs). Starting in 2029, the National Highway Traffic Safety Administration (NHTSA) will require that all newly manufactured light trucks and passenger vehicles be equipped with AEB systems. Such systems, when operating as intended, automatically apply the vehicle’s brakes when sensing that the driver is in imminent danger of a collision. In July 2023, the DOT proposed that NHTSA’s requirement be extended to all vehicles heavier than 10,000 pounds. Such a rule would fulfill the AEB mandate included in Section 23010 of the BIL.  

In their Notice of Proposed Rulemaking, the DOT estimates that extending the AEB mandate to heavy trucks would prevent 19,000 crashes and save 155 lives. However, recent reporting has suggested that these figures are optimistic. The American Automobile Association (AAA) recently conducted AEB crash tests on passenger vehicles. Though effective at preventing collisions with stationary vehicles, they noted that AEB systems failed to detect moving vehicles traveling at higher speeds. AAA summarized their findings, stating “Testing requirements for [AEB] technology, or any vehicle safety system for that matter, must be updated to handle faster, more realistic speeds and scenarios with the greatest safety benefit for drivers.”  

During lines of questioning, Representatives Tom Kean Jr. (R-NJ), Doug LaMalfa (R-CA), and Mike Collins (R-GA) echoed Pugh’s sentiment that an AEB mandate is “overly ambitious.” Mr. Collins argued that AEB systems are “not fail-proof.” Pugh explained that during a trip from Reno to Kansas City, his truck’s AEB system was “constantly going off,” potentially endangering the vehicles around him. 

Safer Streets Require Innovative Roadway Designs 

Democratic members focused their questions on issues of roadway safety. During her opening remarks, Rep. Eleanor Holmes Norton (D-DC) reminded the Subcommittee that the 2021 Departments of Transportation, and Housing and Urban Development, and Related Agencies Appropriations Bill encouraged the FHWA to update its street design standards. The bill directs the FHWA to adopt a complete streets design model in which roadways are designed for the safe movement of all transportation modes, including pedestrians, bicyclists, and transit vehicles, in addition to other motorized vehicles. Ms. Holmes-Norton and the Democratic members who followed her discussed how roadway design impacts safety with Beth. Osborne.  

During an exchange with Rep. Seth Moulton (D-MA), Ms. Osborne explained that on many roadways, design speeds, the speeds at which a driver naturally feels comfortable traveling, are often higher than imposed speed limits. Whereas a driver might see a speed limit sign every half mile, they experience the road design constantly through visual cues. Therefore, the roadway’s design encourages speeding. However, at higher speeds, the ability of drivers to react quickly to prevent collisions with pedestrians, bicyclists, and other vehicles is drastically reduced. “Even at the speed limit,” Osborne warned, “speeds are often too high for a driver to see and anticipate a conflict and react.”  

Ms. Osborne explained that instead of designing roadways for high speeds then retroactively penalizing drivers for unsafe behavior, the U.S. should design roadways themselves for safer, lower speeds.  She directed Congress to provide more participation in safer street design by lifting antiquated standards that limit innovation. Osborne added that she regularly hears from roadway design engineers that they would love to add traffic calming measures like lane narrowing treatments to local streets. However, the FHWA exceptions process, which would be required for such a treatment, is arduous and would slow project delivery. Ms. Osborne made her most poignant remark during her opening statement: “This is a country of such creativity and innovation and yet we apply so little of it to the surface transportation program. I want to see that change.”