We Sued and Administration Backs Down on Transportation Rule

In the face of lawsuits it couldn’t win, the Federal Highway Administration (FHWA) has lifted its suspension of a greenhouse gas (GHG) measure for transportation, via this notice, which will be published in the Federal Register Thursday.

Without notice or comment, in clear violation of the Administrative Procedure Act, FHWA had illegally suspended the measure on May 19, 2017. FHWA’s website now makes clear that the GHG measure will go back into effect and the measure’s first compliance deadline of October 2018 remains in effect. The administration also signals its intent to initiate a new rulemaking in 2017, which they hope to finalize in the spring of 2018.

The GHG measure was one of several promulgated by FHWA through a rule implementing the 2012 federal transportation law Moving Ahead for Progress in the 21st Century (MAP-21). The measure, which NRDC wrote about here, here, and here, covers measurement of heat-trapping carbon pollution and target-setting for reducing it. The measure will have the added benefit of reducing other dangerous air pollutants generated by mobile sources (i.e. tailpipes).

After FHWA announced that it was indefinitely delaying implementation of the GHG measure in May, NRDC joined forces with the US Public Interest Research Group (USPIRG) and the Southern Environmental Law Center (SELC) on behalf of Clean Air Carolina to challenge the agency’s action in court. And late last week, a group of 8 states filed suit against this unlawful action by FHWA as well.

This action was blatantly against the law. Important rules such as this one take a year or so to develop, with adequate comment periods (this one’s spanned four months). A new administration can’t just willy-nilly decline to follow through. So we sued, as written about here and here.

Why We Sued

The United States spends about half-a-trillion dollars on transportation annually. Local jurisdictions, states and the federal government funnel money toward highway, road, rail and bike lane construction and maintenance. These investments are enormously consequential not just for states but for metropolitan regions made up of cities and counties, which is why the latter are coordinated by metropolitan planning organizations (MPOs). And both MPOs and state departments of transportation (DOTs) are required by federal law to develop long-range plans spanning at least 20 years.

The good news is these plans have improved over time. The bad news is that they have not been, as the Bipartisan Policy Center and other experts advocate, performance-driven. As data collection and analysis, and the hardware and software that enable them, have improved, there is no excuse for little or no performance management by MPOs and DOTs.

That’s why Congress and the Obama Administration took action in 2012, enacting Moving Ahead for Progress in the 21st Century (MAP-21). This bill, mostly unremarkable, included a planning title that is anything but, for the first time requiring regions and states to track and improve their performance across a range of measures in exchange for billions in federal funding support. And the Obama Administration took full advantage of it, carefully crafting rules for safety, pavement and bridge conditions, system performance, freight movement, and finally congestion mitigation and air quality.

The implementing agency, the Federal Highway Administration (FHWA), has a very capable staff which along with other groups has published a variety of resources helpful for MPOs and DOTs interested in performance measurement and management, such as this one. FHWA was poised to work with agencies across the country to improve planning, and that in turn would help cities, suburbs and states hammer out smarter and more effective plans that achieve better outcomes for all—such as reducing GHG emissions and fighting climate change. That’s why we couldn’t let the FHWA get away with illegally halting implementation of the GHG measure.

Going Forward

Our advocacy for better performance management and government accountability paid off. The government has announced that the GHG measure will be implemented effective Thursday. With the lawyers off the case, FHWA planners and engineers can finally get back to work. And MPO and state long-term plans will take this crucial step forward toward being performance-driven in the context of GHG emissions over the next year.

Bad planning is not inevitable, and measuring and setting targets for reducing carbon pollution is the essence of good planning. That's why the GHG measure is a commonsense tool. Sooner or later it will apply to all MPO and state transportation plans. And sooner is smarter, and better, for public health and the environment.

We know we have our work cut out for us since the administration is only backing down for now. We look forward to working with FHWA, MPOs and states towards realizing the health, safety and climate potential the GHG measure provides in tackling carbon pollution from transportation, the leading source in the United States.

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