GOP lawsuit over CO2 rules attacks Biden administration for overreach, pushes climate denial

A group of 21 Republican state attorneys general questioned core tenets of climate change science as part of an environmental lawsuit they filed late last month against the Biden administration.

The GOP officials, led by the Kentucky attorney general’s office, challenged a new rule issued by the Federal Highway Administration, or FHWA, in November that would require states and metropolitan planning organizations to track the carbon dioxide pollution that their new road projects would generate. The rule says those recipients of federal funds must plan to reduce those emissions over time, although it does not specify by how much nor does it specify any penalties for not complying with the regulation.

“The federal government demanding a reduction in vehicle miles traveled is ridiculous,” said Idaho Attorney General Raúl Labrador, one of the plaintiffs in the case, in a statement. “States simply cannot be forced to implement the policy whims of a federal government, and the Constitution is clear about this.”

As part of their attack on the Democratic president’s rules, though, the Republican attorneys general also questioned the vast amount of evidence that shows that human activity is causing climate change.

The state officials falsely claimed there was “no consensus” on the cause of climate change or even whether it was occurring. They attacked a United Nations assessment of the impacts of climate change for producing “implausible” scenarios that “deviate from present reality.”

Steven Higashide, the director of the clean transportation program for the Union of Concerned Scientists, said it was “outrageous to see 21 states sign on” to such a statement. The causes of climate change are just as settled as theories of plate tectonics or evolution, he said. In fact, he noted, a 2021 study found that 99% of published papers on climate science agreed that human-generated pollution is responsible for climate change.

“This is like suing NASA for saying the world is round,” Higashide said. “We are seeing the reality of climate change all around us. We are seeing it in our air. We are seeing it when we have to shelter from or flee from wildfires. We are seeing it in the worsening storms around the world. And the evidence linking those to climate change is crystal clear.”

“Science has passed the political arguments about climate change,” added John Bailey, a transportation expert for the Natural Resources Defense Council, an environmental group. “There are so many cities and states that are proactively dealing with this issue and coming up with creative solutions. So regardless of who believes climate change is real or not, it’s definitely happening.”

As part of the lawsuit, seven states—Alabama, Idaho, Indiana, Kentucky, Mississippi, Nebraska and Utah—said that their current transportation plans would lead to higher carbon dioxide emissions. Several others acknowledged that the projects they were building could lead to more pollution, too.

Ohio is one of them. The Midwestern state is trying to lure electric vehicle and battery plants, and it just installed one of the country’s first electric vehicle charging stations paid for through the 2021 federal infrastructure law. But the lawsuit said the industrial state will continue to generate more carbon dioxide from its highway projects.

“Highway investments, and economic growth, will result in additional greenhouse gas emissions from vehicles, and the state of Ohio will continue to make decisions to maximize all the benefits of its highway investments,” the lawsuit stated. “Unlawful regulation will increase costs to the state of Ohio, its agencies, its citizens and its industries, and [it will] burden the state of Ohio’s choices in implementing its highway programs.”

The debate over emissions reporting requirements has stretched back for nearly a decade, when the Obama administration originally proposed a similar rule. The Trump administration revoked it, but the Biden administration revived the effort. It first unveiled its proposal in 2022. Many Democratic state officials, city agencies and environmental groups have supported the new rules. In fact, 24 states and the District of Columbia have put in place similar measures. But Republican opposition has been fierce.

The crux of the legal argument for the Republican plaintiffs is that the FHWA does not have the authority to impose the new reporting requirement on states. The administration, they said, is “forcing states to implement the president’s controversial climate change policy.”

“In effect, the [FHWA and the U.S. Department of Transportation] are attempting to compel the states to be foot soldiers in service to President [Joe] Biden’s climate change agenda, notwithstanding their own sovereign interests and policies, and Congress’s express enactment,” the GOP attorneys general wrote.

The Biden administration relied on a provision of a 2012 transportation law as the basis for its authority to issue the carbon dioxide reporting provision. 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, even though federal law requires states to monitor other types of air pollution. The Republican states said adding a carbon dioxide monitoring program is “contrary” to the original law.

The Republican officials noted that Congress considered but ultimately did not pass efforts to reduce the carbon dioxide impact of new highway spending when it debated the 2021 infrastructure law.

The plaintiffs also argued that Congress cannot leave major questions like reducing the amount of carbon dioxide pollution generated by vehicles up to regulatory agencies. In 2022, the Supreme Court created a new rule saying those “major questions” with big economic impacts or political salience need to be explicitly decided by Congress. The Republican attorneys general said the carbon dioxide reporting rule would violate the Supreme Court’s decision.

“Requiring declining targets for all states will still affect a vast portion of the American economy,” they wrote. “States will be forced to make choices about projects, contracts, and regulations in order to make and meet the declining targets. All of these choices can impact a state’s economy, which in turn affects the nation’s economy.”

As a practical matter, the Republican attorneys general said the Biden administration rule would disproportionately hurt rural states.

“States with higher average annual miles per driver tend to be more rural. On average, rural residents drive 10 miles more per day than urban residents. States with fewer metropolitan areas have fewer options available to them to reduce carbon dioxide,” they wrote. “Many of the ideas for how states can decrease greenhouse gas emissions—congestion pricing, road pricing, ramp metering, increased coordination with transit and non-motorized improvements, paying fees to scrap low mileage heavy duty vehicles—are options more conducive to metropolitan areas, not rural ones.”

Higashide, from the Union of Concerned Scientists, said rural areas have plenty of options to reduce their greenhouse gas emissions. They can install charging infrastructure for trucks and heavy duty vehicles. They can add support for intercity bus service and Amtrak routes.

Bailey of the Natural Resources Defense Council said reporting requirements would help the public understand how their infrastructure money is being spent. It would bring the country one step closer to reducing its greenhouse gas emissions, he said. “We’re never going to make changes unless we know what our baseline is.”

“We’ve doubled the amount of money we’re spending on transportation since the infrastructure law, so of course there should be some transparency on how we are spending that money,” he said. “Nobody will be denied building anything due to this rule. But we should know what we’re getting for those billions of dollars.”