[Congressional Record Volume 170, Number 61 (Wednesday, April 10, 2024)]
[Senate]
[Pages S2692-S2694]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                              S.J. Res. 61

  Madam President, let me just say I am rising in support of my 
resolution with Senator Cramer and my colleague Senator Capito that 
would overturn the Federal Highway Administration's greenhouse gas 
reduction rule.
  We all have a responsibility to the climate--we all are here to do it 
better--but to be practical about what we are doing, to be sensible. 
And if it is not feasible, it is not reasonable to go down this path.
  The rule is another example of the administration trying to implement 
laws or bills they wanted but bills they didn't pass.
  We are saying: Stay within the confines of the laws we pass.
  It is an unworkable, one-size-fits-all approach. It burdens States 
with setting and enforcing declining emissions standards for travel on 
highways. It makes absolutely no effort to consider the unique needs of 
rural States like West Virginia.
  Let me explain to you--I and my colleague Senator Capito--where we 
live. It is the most beautiful State--we consider it to be--in the 
country, with the most beautiful, hard-working people in the country. 
We all feel that way or we wouldn't be here representing our States. My 
friend from North Dakota here, Senator Cramer, feels the same about 
North Dakota. And I agree with everybody, but we are defending it.
  I have a State where I don't have one city with over a 50,000 
population. So I am very rural--1.7 million-plus. The bottom line is we 
don't have a high density of emissions. We don't have that. To make 
this into common sense, what they are trying to do is to say that you 
must--wherever you are now, you must reduce, reduce, reduce. The only 
way that we can get to where they want us to get to is to quit driving, 
to quit basically transporting, to quit delivering our food or all of 
our necessities of life. Don't go to work. Stay home.
  That doesn't make any sense at all. For them to go down this one-
size-fits-all makes no sense. It does not only undermine the very 
purpose for our highway system; it just isn't feasible in rural areas 
without other transportation options.

  Our economy would grind to a halt. I have always said: If it is not 
feasible, it is not reasonable.
  Even if the rule were reasonable, it wouldn't matter because the 
administration simply does not have the authority to do this. They do 
not have the authority. Transportation--DOT--does not have the 
authority to do what they are trying to do with this rule.
  We know this because, when we were writing the bipartisan 
infrastructure law, we debated whether to give them that authority. 
That was part of the negotiations we were going through--Democrats and 
Republicans--saying together: Should they have that authority?
  Guess what. Unanimously, we decided against it. It wasn't in their 
jurisdiction.
  So nothing in any law that Congress has passed allows this 
administration or any administration to burden States with these 
measures in order to advance their radical climate agenda, and I say 
that because I think the President is being ill-advised, with his 
climate advisers taking him down the primrose path.
  It is making a lot of people uncomfortable, with thinking: The 
government is trying to tell me how I am going to be transported, how I 
am going to use what vehicle, what I can buy; and they are trying to 
bribe me with $7,500. And, if that doesn't work, we will pass a piece 
of legislation that makes it law to not even manufacture gasoline 
engines.
  It is crazy, just absolutely crazy. I have always believed in market-
driven products. If you give me a good product in a market where I can 
make a free decision and decide whether I can afford it or not, whether 
it enhances my life, and it is something that I desire, I will make the 
decision. Don't force me with limiting my options. That is all. And, 
when it is changing and when you do something better and it is 
something that gives me a better quality of opportunities in my life, 
that will make the difference.
  I can tell you the American public, the American consumer--and I say 
this for all women in my family: They were born with a certain gene. 
They know how to shop. They know how to compare. They know how to make 
a good deal. And they have something that men don't have, and they have 
more sense than we have when it comes to buying things and living 
within your means.
  So with that, I can tell you: Let the market do its job.
  So I introduced a resolution of disapproval with Senator Cramer and 
Senator Capito because we know that this power grab is unreasonable, 
economically irresponsible, and, most importantly, unlawful. It will be 
devastating for the rural communities and transportation industries in 
West Virginia and North Dakota and across all of America.
  I urge my colleagues on both sides of the aisle to join me in 
supporting this resolution.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mrs. CAPITO. Madam President, I ask unanimous consent that the 
following Senators be able to speak prior to the scheduled rollcall 
vote: Myself for up to 5 minutes, Senator Carper for up to 10 minutes, 
and Senator Cramer for up to 7 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. CAPITO. Madam President, I come here and join my fellow 
colleagues from West Virginia and from North Dakota to offer my strong 
support of the resolution offered by Senator Cramer of North Dakota.
  Senator Manchin has covered a lot of this, but I think I want to re-
cover it because I think it is very important.
  The Federal Highway Administration issued the final rule, which we 
are challenging today, without having the necessary legal authority 
from Congress. The rule will force our State departments of 
transportation and metropolitan planning organizations to develop and 
set their own declining greenhouse gas emissions targets. State DOTs 
and MPOs are also going to be required to meet their own targets. If 
they fail to meet their targets or fail to make significant progress 
toward them, they are required to develop new plans to ensure that they 
do meet their targets.
  Senator Manchin described how difficult it will be for a sparsely 
populated and, basically, rural area, such as West Virginia, to make a 
measurable difference in our greenhouse emissions in our transportation 
sector because, you know, we are in pretty good shape as it is right 
now.
  The expected outcome of this requirement is that it will force State 
DOTs and MPOs to use their highway funding for ineffective emissions 
reduction projects rather than on projects that will improve the safety 
and efficiency of roads and bridges. This restriction on the ability of 
State DOTs to pick the projects that address their communities' unique 
transportation needs is unacceptable, and it runs counter to our 
agreement for the Bipartisan Infrastructure Investment and Jobs Act.

[[Page S2693]]

  When we were negotiating that legislation in our committee, we 
specifically considered giving the Federal Highway Administration the 
authority to impose a greenhouse gas performance measure and associated 
targets, but we ultimately rejected that idea. We make the law, and we 
rejected putting this into our established law for very good reasons.
  My colleagues and I have also warned FHWA multiple times that it 
really lacks the authority for this rule.
  In October 2022, in response to the publication of the proposed rule, 
Senator Cramer and I, along with 25 of our Senate colleagues, sent a 
letter to FHWA stating that they did not have the authority to issue 
the proposed greenhouse gas rule.
  We further reminded FHWA Administrator Bhatt of that lack of 
authority at an oversight hearing just last June.
  Despite our clear communication with FHWA and the fact that this rule 
violates the carefully negotiated bipartisan agreement in the IIJA, 
Congress must once again address the Biden administration's regulatory 
overreach.
  I would also note that it is not just Congress that has challenged 
the FHWA's authority to issue a greenhouse gas rule. In two separate 
legal actions--one in Texas and the other in Kentucky--a total of 22 
States, with support from adversely impacted industries, successfully 
challenged this greenhouse gas rule.
  While the States have prevailed over FHWA in Federal Court, I also 
believe that Congress has a duty to make clear when a Federal Agency 
has clearly--clearly--exceeded its authority.
  Therefore, to ensure that there is no ambiguity whatsoever regarding 
FHWA's authority, I urge my colleagues to support Senator Cramer's 
resolution.
  I yield the floor to my friend from Delaware, Senator Carper.
  The PRESIDING OFFICER. The Senator from Delaware.
  Mr. CARPER. Madam President, I thank the Senator from West Virginia, 
my native State, for yielding to me. Out of the three Senators in the 
U.S. Senate from West Virginia, today we are all speaking on this 
proposal by Senator Cramer.
  I rise today in opposition to S.J. Res. 61, a Congressional Review 
Act resolution that would overturn the Federal Highway Administration's 
greenhouse gas performance rule. This rule is critical to helping the 
United States meet our climate goals, and I want to start off by laying 
out the scale of the challenges we face in addressing climate change 
and the climate crisis.
  All of us know by now that we are confronted almost daily by signs 
that our planet is literally on fire, and as the days and weeks pass, 
the urgency to act only grows stronger. According to the National 
Oceanic and Atmospheric Administration, the United States just 
experienced the warmest winter on record--not ``one'' of the warmest 
winters on record but ``the'' warmest winter on record. And last year, 
2023, was the world's warmest year on record--not ``one'' of the 
warmest years on record but ``the.'' This is not a mere coincidence but 
an unabated body of evidence that shows our planet continues to grow 
warmer and warmer.
  Extreme weather is affecting communities across our Nation, from 
hurricanes to drought, to flooding made worse by rising sea levels.
  Last year, the Environment and Public Works Committee that I am 
privileged to lead, along with Senator Shelley Moore Capito of West 
Virginia, held a hearing where we heard firsthand about the negative 
impacts of extreme heat on our transportation systems and the punishing 
effects--truly punishing effects--it could have on the health of our 
transportation workforce.
  The science is clear that greenhouse gas emissions are having a 
substantial effect on our changing climate.
  So where do those emissions come from? Where do they come from? Well, 
the transportation sector in America is the single largest source of 
greenhouse gas emissions in the United States. Let me say that again. 
The transportation sector is the largest single source of greenhouse 
gas emissions in the United States, accounting for nearly 30 percent of 
our emissions economywide. The transportation sector is the single 
largest source of greenhouse gas emissions in the United States. After 
that, another 28 percent comes from our powerplants generating 
electricity, and yet another 25 percent comes from our manufacturing 
operations, like cement plants and like steel mills. This means that 
the cars, the trucks, the buses driven on our highways every day are a 
major source of the emissions that are warming this planet that we call 
home.

  That is why the Federal Highway Administration's greenhouse gas 
performance rule is so important and must be upheld by Congress. It is 
simply not possible to meet our climate goals without addressing 
emissions from the transportation sector.
  For my colleagues who might not be familiar with the Federal Highway 
Administration's performance measure, I would like to take a couple of 
minutes to talk about what the rule actually does as well as what it 
does not do.
  First, the rule provides a framework for States and metropolitan 
planning organizations to measure the amount of greenhouse gas 
emissions generated by vehicles on our Nation's highways. This rule 
does so by using longstanding authorities under the National Highway 
Performance Program, which have existed in statutes since 2012.
  Under the National Highway Performance Program, the Federal Highway 
Administration can enact measures to assess the performance of our 
Nation's highways, including for environmental sustainability.
  The Federal Highway Administration has already enacted performance 
measures in other areas, including safety and congestion.
  During negotiations on the bipartisan infrastructure law, some of us 
wanted to require the Federal Highway Administration to set a 
greenhouse gas performance measure. That is what we wanted to do. We 
couldn't get bipartisan agreement to require a greenhouse gas 
performance measure. The Federal Highway Administration used the 
discretionary authority it has had since 2012--for 12 years--to set 
performance measures relating to the environmental sustainability of 
our highways.
  In addition to measuring emissions, States must also establish 
targets for reducing those emissions over time. However, the rule does 
not take a one-size-fits all approach. Instead, it gives each State--
each State--the flexibility to set its own reduction target. Let me say 
that again. The rule does not take a one-size-fits-all approach. 
Instead, it gives each State the flexibility to set its own reduction 
target.
  It is also important that our colleagues understand that the 
greenhouse gas rule does not impose any penalties on States that, for 
whatever reason, are unable to meet their targets that they have set--
not that someone else has set; that they have set. The rule does not 
require States to transfer highway funding to other modes of 
transportation or to pay a financial cost if their emissions do not 
decline in accordance with that State's targets.
  That means that under this rule, none of our colleagues' States will 
see a reduction in the highway funding or any change in the way that 
highway funds are administered in their States. That bears repeating. 
This means that under this rule, none of our colleagues' States will 
see a reduction in their highway funding or any change in the way that 
highway funds are administered in their States.
  In fact, Congress specifically authorized funding the bipartisan 
infrastructure law to help States meet their emission targets. We 
established a new Carbon Reduction Formula Program that provides 
funding to every State for projects that reduce emissions from 
transportation.
  We also provide $7.5 billion--billion with a ``b''--in the bipartisan 
infrastructure law to build out a national network of electric vehicle 
charging stations.
  Our States are far from being punished. In fact, they have been 
provided with historic amounts of funding to address climate change.
  In closing, let me just say that I believe we have an important 
choice to make here: Are we going to continue to ignore the significant 
impact that greenhouse gas emissions are having on our planet or are we 
going to take reasonable steps, as the Federal Highway Administration 
has done with this rulemaking, to address the problem head-on?

[[Page S2694]]

  I hope that our colleagues will join me and others in opposing this 
Congressional Review Act resolution.
  Let me just close with this for another minute, if I could. We have 
some young peopling sitting up here. They are pages. We call them 
pages. They are nominated by Senators from all over the country--
Democratic Senators, Republican Senators. They come here to go to 
school. They haven't graduated from high school yet. They come here to 
pick up their schoolwork, usually in high school, and maybe stay for 1 
year, 1 academic year, and eventually go back home, finish their 
education, and go on to do amazing things. They are just wonderful 
young people. I am very proud of them--the ones from Delaware and every 
other State as well.
  They have a bright future. They have a bright future. There are also 
some incredibly scary threats to that future. One of those is that we 
live on a planet that is growing hotter, growing hotter, and growing 
hotter. The question is, Are we going to do anything about it? We are 
trying very hard to do that.
  The good news is, we can do something about it, turn it around, and 
reverse it in ways that create jobs and economic opportunity. We have 
adopted those in legislation, in the Inflation Reduction Act, in the 
bipartisan transportation bill, and the treaty called the Kigali 
treaty. We have done a lot. The key is not just doing those things but 
continuing to do those things--continue to do those things.
  With that, I hope that our colleagues will join me in opposing this 
Congressional Review Act resolution.
  I say this as one who oftentimes works with folks--both my colleagues 
from West Virginia--on all kinds of issues. This is just one where we 
don't see eye to eye. My hope is that our colleagues from both sides of 
the aisle will vote no.
  The PRESIDING OFFICER (Ms. Baldwin). The junior Senator from North 
Dakota.
  Mr. CRAMER. Madam President, thank you for the recognition.
  At the outset, let me say thank you to Senators Manchin and Capito 
for their passionate support and their words today in support of this 
joint resolution, this Congressional Review Act resolution. I also want 
to thank the chairman of the EPW, the distinguished Senator from 
Delaware and my friend. As he just said, we have worked closely 
together on lots of things. It is a great committee. It is fun to work 
on. And, again, we just don't see eye to eye on this one, but I just 
want to offer my respect for the good work that we all do together. I 
thank the Senator.
  Madam President, few things are more frustrating in government than 
unelected bureaucrats asserting authority they don't have and foisting 
Federal mediocrity on the excellence of States. Shortly, the Senate 
will take up my bipartisan resolution that overturns the Biden 
administration's obviously illegal--regardless of how you might feel 
about the merits, an obviously illegal rule that requires State 
departments of transportation to measure CO2 tailpipe 
emissions and then set declining targets for vehicles traveling on the 
highway systems of their respective States.
  This rule is wrong on so many levels and has already been overturned 
by courts in Texas and Kentucky. Now we, the elected policymakers in 
our system, have the opportunity to correct course and spare the 
taxpayers the gross expense of litigating this demonstration of 
bureaucratic arrogance.
  When the Environment and Public Works Committee negotiated the 
highway bill, we considered giving this authority to the Department of 
Transportation. But after the hearings and the deliberations, the 
committee chose not to grant such authority to the Agency, and we 
passed the bill out unanimously. And it became the foundation for the 
broader bipartisan bill known as the Infrastructure Investment and Jobs 
Act.
  When the ``bipartisan gang'' put their proposal together, they, too, 
chose to leave this authority out of the bill. These decisions were not 
accidental; they were intentional.
  When we pointed this out during the Department of Transportation's 
official comment period, the Federal Highway Administration provided a 
very novel rationale. Get this, now. They argued that since Congress 
was aware of their plans to promulgate this rule and did not explicitly 
bar it, ``Congress intended to leave such determinations to''--get 
this, now--``Agency expertise to be handled via regulatory authority.''
  That is not just arrogance; that is arrogance on steroids.
  Here is what the late great Winston Churchill had to say about 
expertise in government:

       Nothing would be more fatal than for the government of 
     States to get into the hands of the experts. Expert knowledge 
     is limited knowledge: and the unlimited ignorance of the 
     plain man who knows only what hurts is a safer guide, than 
     any vigorous direction of a specialised character.

  Congress does not ``leave'' determinations to Agencies. Congress 
either grants such authority or it does not. And if it does not, the 
Agency does not possess that power.
  In fact, let me read a couple of lines from the courts who have 
already ruled on this issue.

       If the people, through Congress, believe that the states 
     should spend the time and money necessary to measure and 
     report [greenhouse gas] emissions and set declining emission 
     targets, they may do so by amending Section 150 or passing a 
     new law. But an agency cannot make this decision for the 
     people. An agency can only do what the people authorize it to 
     do, and the plain language of Section 150(c)(3) and its 
     related statutory provisions demonstrate the [Department of 
     Transportation] was not authorized to enact the 2023 Rule.

  That was Judge James Wesley Hendrix of the U.S. District Court for 
the Northern District of Texas.
  Judge Benjamin Beaton of the U.S. District Court for the Western 
District of Kentucky wrote:

       If the Administrator--

  referring to the Federal highway administrator.

       If the Administrator were allowed to shove national 
     greenhouse-gas policy into the mouths of uncooperative state 
     Departments of Transportation, this would corrupt the 
     separation of sovereigns central to our lasting and vibrant 
     system of federalism. Neither the Constitution nor the 
     Administrative Procedure Act authorizes administrative 
     ventriloquism.

  Colleagues, the absence of a prohibition is not a license for 
bureaucracy to do whatever it pleases. These court rulings underscore 
Agencies must abide by the law, not invent the authority they desire.
  Several States have resoundingly rejected this illegal rule. Several 
State departments of transportation objected to it in writing. Several 
States joined this litigation, and 50 Senators have cosponsored this 
Congressional Review Act.
  Let me just quote a couple of States. The Arizona Department of 
Transportation:

       Arizona Department of Transportation disagrees with the 
     justification provided in the NPRM regarding the legal 
     authority for Federal Highway Administration to establish a 
     greenhouse gas emissions performance measure.

  The Michigan Department of Transportation writes:

       MDOT is apprehensive about supporting new measures not 
     explicitly authorized by Congress . . . Therefore, there is 
     no provision in federal law requiring the Federal Highway 
     Administration to establish a greenhouse gas measure.

  Twenty attorneys general from Montana, Virginia, Georgia, Ohio, and a 
number of other States wrote:

       The proposed greenhouse gas measure would be a serious 
     revision of what Congress has written, and Congress has not 
     given the Federal Highway Administration such editorial 
     power.

  Madam President, the Biden administration should have never 
introduced this rule, but now we, the policymaking branch of 
government, must end it. I urge all of my colleagues to stand up for 
the Senate and vote for this restoration of article I powers. Vote yes 
on this Congressional Review Act resolution.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, S.J. Res. 61 is 
considered read a third time.
  The joint resolution was ordered to be engrossed for a third reading 
and was read the third time.