Greenhouse gas measurement rule reinstated after FHWA faced with two lawsuits

By Tyson Fisher, Land Line staff writer | 9/27/2017

After environmental groups and several states challenged the federal government’s decision to suspend greenhouse gas measurements in a lawsuit, the Federal Highway Administration has decided to concede and reinstate greenhouse gas provisions under the Moving Ahead for Progress in the 21st Century Act. FHWA suspended those provisions on May 19.

Earlier this year, the Trump administration announced it would indefinitely delay a rule that was finalized by the Obama administration in January. On Jan. 10, two final rules were established that “call for states to account for air quality improvement by establishing performance targets and greater transparency and accountability in setting and achieving performance targets for several key measures of highway performance, including pavement and bridge condition and travel reliability,” according to the U.S. Department of Transportation.

Mandated by MAP-21 and the Fixing America’s Surface Transportation Act, the two rules establish measurement systems for pavement/bridge conditions and system performance/freight. The latter sets forth measures that state DOTs and metropolitan planning organizations will use to report on the following characteristics within their jurisdiction:

  • The performance of the interstate and non-Interstate National Highway System to carry out the National Highway Performance Program;
  • Freight movement on the interstate system; and
  • Traffic congestion and on-road mobile source emissions for the purpose of carrying out the Congestion Mitigation and Air Quality Improvement Program.

Originally set to go into effect on Feb. 17, the Trump administration delayed the launch date twice after its regulatory freeze. The rule eventually went into effect on May 20.

However, the rule pertaining to the percent change in carbon dioxide emissions from 2017 generated by vehicles on the National Highway System was suspended, and the effective date was delayed indefinitely.

On July 31, Clean Air Carolina, Natural Resources Defense Council (NRDC) and the U.S. Public Interest Research Group filed a lawsuit against the U.S. DOT and FHWA, claiming the suspension was unlawful. The lawsuit pointed out that FHWA took action without public notice or any opportunity for public comment, which are required by the Administrative Procedure Act. However, FHWA pointed out that “APA provides that an agency is not required to conduct notice-and-comment rulemaking or delay effective dates when the agency, for good cause, finds that the requirement is impracticable, unnecessary or contrary to the public interest.”

Last week, on Wednesday, Sept. 20, eight states – California, Iowa, Maryland, Massachusetts, Minnesota, Oregon, Vermont and Washington – filed a similar lawsuit. The very next day, FHWA issued its notice to reinstate the original dates of the greenhouse gas measurements standards established earlier this year.

“The FHWA recognizes that there are short timeframes to comply with the October 1, 2018 reporting deadline,” FHWA and U.S. DOT said in the latest notice. “However, FHWA expects that the burden to comply with the upcoming reporting deadline will be minimal, consisting mostly of preliminary target-setting activities using existing data sources.”

FHWA plans to start a new rulemaking this year with the aim to be completed in the spring. The new rulemaking will attempt to repeal the greenhouse gas measurement standards through the Administrative Procedure Act, including public notice and comment.

“This action was blatantly against the law,” NRDC said in a blog post. “Important rules such as this one take a year or so to develop, with adequate comment periods (this one’s spanned four months). A new administration can’t just willy-nilly decline to follow through.”

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