New life for GHG tracking rule?

By Eric Sundquist

In the waning days of the Obama administration, FHWA finalized the last set of performance measures for states and MPOs. That seemed to end a 4.5-year rulemaking effort that had kicked off in mid-2012 with the signing of the MAP-21 transportation bill.

However, the incoming Trump administration delayed the rule’s February starting date, then allowed the rule to go into effect in May—except for a provision that would have required states and MPOs to track greenhouse-gas emissions related to the National Highway System. That provision was indefinitely delayed.

Now the Natural Resources Defense Council and other environmental groups are suing to have the GHG measure reinstated. They claim that killing the measure after it had been published violated the Administrative Process Act. In addition, they argue that eliminating the provision without new notice and commenting opportunities amounted to an “abuse of discretion.”

The lawsuit was filed in federal court in New York. There is no word yet on court dates or a timeline for a decision.

The administrative action and resulting pushback are not unique to transportation. In an article for The Atlantic, Ron Brownstein uses the GHG rule as an example of a wider war over administrative rules and enforcement priorities. He writes: “Most observers are understandably judging Trump’s policy impact by whether he can pass legislation through Capitol Hill. But his executive actions may be equally important in setting the country’s direction—and on that front the critical question is whether he can fend off legal challenges symbolized by the environmentalists’ suit against the highway administration. Regardless of whether Trump regains his footing in Congress, his policy legacy may be settled at least as much in the courts.”

Eric Sundquist is Director of SSTI.