[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.