States Divided on Setting Targets for Curbing Highway Emissions

Republican state officials are slamming a new Biden administration proposal to reduce greenhouse gases generated from vehicles traveling on highways, calling it illegal and unworkable, even as officials from Democratic states are enthusiastically backing the plan.

The sharp divides, even among transportation departments, show how difficult it will be for federal regulators to address the country’s top source of climate change-causing pollution. Central to the disagreements are questions over how much power a federal agency has to require states to act on the issue and to what extent state and regional transportation agencies should be involved in curbing emissions. 

The disputes surfaced in comments submitted to the Federal Highway Administration about draft regulations the agency unveiled in July. Its proposed rule would require states and metropolitan planning organizations to establish targets for cutting greenhouse gas pollution from vehicles.

It does not include any punishment mechanism for states that don’t comply, although many state agencies suggested that federal regulators could sanction them for not meeting the goals.

The Biden administration’s proposal is similar to one that the Obama administration tried to implement in its last days in office. But the Trump administration quickly revoked that earlier rule, arguing that the FHWA did not have the authority to issue it.

A similar back-and-forth is playing out over the latest proposal.

A group of Republican attorneys general from 20 states questioned whether the FHWA was overstepping its authority when it issued the rule. “While the proposed [greenhouse gas] measure may be aligned with the Biden administration’s climate change priorities, it is seriously out-of-step with FHWA’s statutory and constitutional authority,” the group wrote.

Meanwhile, a group of Democratic attorneys general from 12 states and the District of Columbia said they “welcome” the new rule, calling it a “an efficient and judicious tool for tracking and addressing [greenhouse gas] emissions on the [national highway system],” that will allow states and MPOs flexibility.

Something dozens of groups have seized on is whether the Federal Highway Administration, in writing the rule, could rely on part of a 2012 funding law that allows the agency to impose reporting requirements on state highway departments. One of the goals for the federal aid highway program listed in that law, known as MAP-21, is “environmental sustainability.”

But the 2012 law never explicitly mentions carbon dioxide or other greenhouse gases, many Republican-led states pointed out, even though federal law requires states to monitor other types of air pollution.

The Republican states noted that Congress had the opportunity in the last two years to clarify that it wanted states to report the carbon dioxide pollution generated by their highways. By then, the different interpretations of the rule by the Obama and Trump administrations were well-known. But Congress did not change the law in last year’s infrastructure law or in a major climate package passed this year.

In fact, the House version of the infrastructure law had explicit rewards for states that reduced their greenhouse gas emissions from highways, but Congress did not adopt that in the final law, the Republican attorneys general noted.

“FHWA is attempting to impose what Congress decided not to impose—and, indeed, to go even further because even the House version did not require the states to align their targets with a national, executive-set target,” they wrote.

But the Democratic attorneys general countered that opponents were “wrong” to read the law so narrowly, because the law requires the FHWA to improve the “performance” of the national highway system “without imposing limitations on the types of performance to be measured.”

Several proponents of the proposed rule also argued that the environmental consequences of climate change threatened the highway system’s performance.

“Climate change is already causing damage to transportation infrastructure and continues to pose an increasing risk of greater damage,” the California Air Resources Board wrote, adding that a measure “like what FHWA proposes serves to preserve and improve resiliency, infrastructure condition, and system reliability.”

The California pollution agency noted that Congress added “resiliency” of the highway system to mitigate damages from sea level rise, extreme weather events and other natural disasters to the primary purposes of the highway performance program, bolstering the need for more reporting on greenhouse gas emissions.

Oregon’s transportation department said the rule would “provide education” to state transportation agencies and metropolitan planning organizations, so they could “understand and pursue planning and action to reduce emissions.”

“The national method provides a consistent metric and creates accountability for federal funds delivered to state DOTs to provide environmental sustainability on the national highway system,” the Oregon officials wrote. 

The National Association of City Transportation Officials also backed the Biden administration proposal.

Transportation is the biggest source of greenhouse gas pollution in the United States, accounting for 27% of its emissions in 2020, the group noted. More than half of those emissions came from passenger vehicles.

“Protecting road infrastructure from the effects of climate change warrants improved plans and preparations for the future by our transportation agencies, including investments in transportation solutions which don’t exacerbate climate change such as electric vehicles and public transportation options,” NACTO wrote.

“Only by tracking these emissions can we begin to understand and address the long-term impact that transportation investments are having on our communities and our climate. The proposed rule would empower state and local leaders to better connect their transportation decisions with climate goals,” the city officials added.

Disparate Impact

Another major point of friction is over the ability and authority of state transportation departments to handle the requirements.

Proponents of the measure point out that 24 state transportation departments already collect information about the greenhouse gas impacts of their highway networks. The fact that many states are already undertaking similar efforts shows that the Biden administration proposal “represents a limited, straightforward, and cost-effective tool that will result in minimal additional staff time or expense from state DOTs and MPOs,” the Democratic attorneys general argued.

Other states disagree. 

“The mission and purpose of the Oklahoma Department of Transportation does not include reducing [greenhouse] gasses. ODOT has neither the legislative authority nor the ability to do so effectively,” the Oklahoma Department of Transportation wrote.

“Oklahoma DOT has no control over the number of vehicles that use interstate or other national highway system routes, nor what fuel sources they use. States do not have the legal authority to reduce greenhouse gas emissions on [national highway system] roads by regulating or restricting the flow of interstate traffic,” it added.

Many Republican-controlled states argued that, under federal law, states, not the federal government, should be the ones who should set greenhouse gas emission goals.

The Biden administration’s framework calling for reductions of those pollutants would disproportionately harm rural and fast-growing states, they also argued.

“Relatively dispersed populations in rural states have to travel longer distances to and from destinations for basic needs such as shopping and health services,” the transportation departments of Idaho, Montana and South Dakota wrote in a joint comment.

People in rural states also have to haul farm goods and natural resources for long distances to get to markets, they noted, and electric vehicle adoption in those areas tends to be lower, which also inhibits rural states’ ability to curb emissions, they said.

Florida’s transportation department said it would be difficult for the state to meet the Biden administration’s goal of reducing greenhouse gases.

“Florida continues to experience growth in vehicle miles traveled, as a result of the growth in population and visitors. The proposed rule requires that states set declining targets from an established baseline, to show improvements in [greenhouse gas] emissions. Realistically, this presents a challenge when [vehicle miles traveled] is increasing and population is growing,” the agency told FHWA.

It suggested the greenhouse gas goals should be tied to the population of a state or the amount of driving that occurred there. “States should not be penalized for population or economic growth,” it argued.

Texas officials complained that the Biden administration’s overarching goal of cutting in half the amount of on-road pollution by 2030 was unrealistic. It would essentially require the Texas highway network to produce the same amount of greenhouse gas pollution as it did in 1981.

“Any strategy that would involve deliberately ratcheting-down the number of vehicles that can safely and efficiently travel via the [national highway system], or rationing the use of highways by the public, would run contrary to the state DOTs’ legislative mandates to facilitate transportation and reduce congestion and could have substantial negative effects on the economy and other aspects of public life,” the Texas Department of Transportation wrote.

To meet the goal by just reducing the amount people would drive “would require the equivalent of five to eight consecutive, compounding COVID-type pandemic lockdowns and associated [vehicle miles traveled] reductions over the next eight years,” the agency wrote.

That could have “cascading adverse effects to society and the economy” similar to the ones felt during the early days of the pandemic, with a disproportionate impact on rural areas, it warned.

It also said that relying on electric vehicles would not be sufficient, because there aren’t enough electric vehicles available for Texans to purchase even if they wanted to.

Likewise, Oklahoma warned of the long-term implications of judging state transportation departments on the basis of their state highways’ greenhouse gas pollution.

“A requirement to reduce [carbon dioxide] emissions, imposed on states, would place pressure on states to adjust project selection. That will represent a major change in the nature of the program of federal assistance to states for highways, where state authority and flexibility to prioritize projects has been a bedrock principle,” the Oklahoma agency wrote.