Senate Unanimously Passes Legislation to Repeal MPO Consolidation Rule

March 9, 2017

Last night, the U.S. Senate passed, by unanimous consent, legislation to repeal the December 2016 final rule from the U.S. Department of Transportation that would force many local metropolitan planning organizations (MPOs) in the same region to merge.

The bill (S. 496), introduced by Sen. Tammy Duckworth (D-IL), is short and pithy:

The rule issued by the Federal Highway Administration and the Federal Transit Administration entitled “Metropolitan Planning Organization Coordination and Planning Area Reform” (81 Fed. Reg. 93448 (December 20, 2016)) shall have no force or effect, and any regulation revised by that rule shall be applied as if that rule had not been issued.

It should be noted that the bill that the Senate passed is different than a resolution under the Congressional Review Act (CRA), which is being used by Congress to repeal some other Obama Administration rules. A regulation repealed by Congress using the CRA procedures is not only dead, but the Administration is then prohibited by law (5 U.S.C. §801) from reissuing the rule “in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.”

But if S. 496 is enacted into law, the Obama Administration’s MPO rule will be forever dead, but the Trump Administration or a future Administration will be free to try again with a rule that approaches the subject a bit differently. (Whether or not they decide to do so is a different question.)

ETW has covered this issue extensively – our article published after the final rule was published is here, and it contains links to all of the previous coverage and outside opinion articles on the subject. In a nutshell, this issue was a personal priority for Transportation Secretary Foxx, based on problems that he faced when dealing with surrounding jurisdictions as mayor of Charlotte, North Carolina.

The rule was broadly unpopular with MPOs and other stakeholders – during the public comment period, only 16 commenters supported the rule while 299 opposed it. (Though many in opposition to the rule itself wrote that they were broadly sympathetic to the stated purpose of the rule, which is a very different thing from endorsing the rule itself.)

(Ed. Note: Today’s Senate is as politically polarized as anyone can remember, so the fact that this Senate can quickly and quietly put together unanimous support for repealing an Obama Administration rule should tell you just how unpopular the rule itself is. That is the other advantage to using the CRA to repeal a rule instead of a regular bill – CRA resolutions only require 51 votes in the Senate, whereas bills require either unanimous consent (for quick action) or 60 votes (for passage under the cumbersome and time-consuming cloture process). A rule with any modicum of popular support would probably require the use of CRA for repeal instead of a regular bill.)

A look at the list of sponsors and cosponsors of the Senate bill, and of an identical House companion bill (H.R. 1346) shows a large concentration of Chicago-area legislators supporting repeal, so apparently the Chicago MPO (CMAP) did not want to be forced to merge with the northwestern Indiana MPO (NIRPC) and the southeastern Wisconsin MPO (SEWRPC), and vice versa. (See CMAP’s statement here.)

Cosponsors of Bills to Repeal the MPO Consolidation Rule
Senate (S. 496) House (H.R. 1346)
IL Duckworth (D) IL Lipinski (D)
IL Durbin (D) CA Denham (R)
IN Young (R) CA Costa (D)
WV Capito (R) CT Esty (D)
DC Norton (D)
FL Webster (R)
IL Quigley (D)
IL Davis (R)
IL Hultgren (R)
IN Walorski (R)
MN Lewis (R)
MN Nolan (D)
UT Chaffetz (R)

The path forward for repeal legislation in the House is unclear, but the House Transportation and Infrastructure Committee will probably mark up the legislation in committee later this month. At that point, any bill which could get unanimous consent in the Senate and which is supported by House Republican leaders is a good candidate for the “suspension of the rules” procedure on the House floor, an expedited process which requires a two-thirds vote of the whole House.


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