July 8, 2022 Biden’s New Highway Rule Offers Some Hope for His Faltering Climate Agenda

A kayaker paddles down a portion of Interstate 676 after flooding from heavy rains from hurricane Ida in Philadelphia, Pennsylvania on Sept. 2, 2021. Credit: Branden Eastwood/AFP via Getty Images
A kayaker paddles down a portion of Interstate 676 after flooding from heavy rains from hurricane Ida in Philadelphia, Pennsylvania on Sept. 2, 2021. Credit: Branden Eastwood/AFP via Getty Images

The Biden administration proposed a new rule Thursday that would require states and metropolitan areas to track and report the greenhouse gas emissions from vehicles driving on interstate highways and other major roads, as well as submit plans to the federal government on how they’ll reduce those emissions over time. The proposal offers a potential lifeline to President Joe Biden’s embattled climate agenda, which has been hamstrung by Congress and suffered a major blow from the Supreme Court last week.

Under a series of bills Congress passed over the last decade to make America’s highways safer and more sustainable, the Department of Transportation already requires state and metropolitan transportation officials to track a number of performance measures and submit plans to improve them. Those include data on accidents and fatalities, road conditions, traffic congestion and emissions of legacy air pollution such as PM 2.5, or soot.

Thursday’s proposed rule would add carbon dioxide to that list of metrics, requiring officials to set reduction targets for tailpipe emissions of CO2 in the coming years. The Biden administration noted that more than $27 billion in federal infrastructure funding was also available to help state transportation departments and metropolitan planning organizations meet those targets. 

The new rule is similar to one finalized by the Obama administration but was effectively reversed under President Trump before it could take effect. The public now has 90 days to comment on Biden’s proposed rule.

“We are taking an important step forward in tackling transportation’s share of the climate challenge, and we don’t have a moment to waste,” Transportation Secretary Pete Buttigieg said in a press release announcing the proposal. “Our approach gives states the flexibility they need to set their own emission reduction targets, while providing them with resources from President Biden’s Bipartisan Infrastructure Law to meet those targets and protect their communities.”

Transportation is now the leading single-sector source of greenhouse gases in the United States, surpassing power plants in 2017 and accounting for roughly a third of the nation’s total emissions. The sector’s role in the climate crisis gives heightened importance to Thursday’s proposal, which adds at least one potential tool to the increasingly piecemeal arsenal Biden has at his disposal to pursue his ambitious but floundering climate agenda, including slashing U.S. emissions in half in just eight years.

While the proposed rule requires states to adhere to the reporting and planning procedures of the Federal Highway Administration’s performance standards, the regulation generally lacks enforcement power—meaning states that disregard or only partially follow it face little, if any legal consequences.

Still, proponents of the rule widely celebrated its announcement, seeing it as tangible action the Biden administration is taking in the wake of a gridlocked Congress unable to pass any kind of national climate legislation and a Supreme Court ruling that has limited the Environmental Protection Agency’s ability to regulate climate-warming emissions from power plants.

In fact, the high court’s ruling on West Virginia v. EPA could have broad implications for how federal regulators can interpret and implement the Clean Air Act, including in regards to the transportation sector.

After the EPA finalized a new rule in December that boosts vehicle fuel economy standards to cut greenhouse gas emissions, several oil and gas companies and 15 Republican state attorneys general sued the Biden administration, saying the agency exceeded its authority by favoring renewable technologies over fossil fuels rather than simply regulating carbon emissions. That’s the same argument the Supreme Court’s six conservative justices agreed with in their recent West Virginia v. EPA ruling.

But Thursday’s proposed rule doesn’t rely on the Clean Air Act but on existing federal highway performance standards, and therefore stands on more solid ground, said Kevin DeGood, director of infrastructure policy at the Center for American Progress, a progressive nonpartisan think tank.

A key reason Congress implemented those standards in the first place was to ensure states were maintaining federal highways and other main thoroughfares in good condition, which helps to make driving safer, DeGood told me in an interview. 

Using that as the legal basis for the proposed rule, he said, the Biden administration is “saying that climate change poses a risk to the assets themselves, and Congress has made asset preservation and maintenance a national goal” under those performance standards.

The argument isn’t difficult to understand. Scientists have long warned that global warming was increasing the frequency and severity of extreme weather, sea level rise, flooding and wildfires. And research indicates those trends are taking a heavy toll on the nation’s infrastructure.

Last summer and fall, extreme heat buckled pavement in Minnesota and Washington state, while heavy rainfall submerged highways in Pennsylvania and Virginia and caused more than $75 million in damage to New York City’s subway systems. By the end of the century, the U.S. could be spending as much as $20 billion every year to manage the effects of global warming, a 2018 federal assessment found, roughly 40 percent of total federal road spending in 2021.

The proposal has drawn backlash from some Republican lawmakers and members of industry associations who say Congress never intended for the Federal Highway Administration to regulate greenhouse gas emissions.

“Agencies need to comply with the authority and the mission that was explicitly given to them by Congress,” Nick Goldstein, vice president of regulatory and legal issues at the American Road & Transportation Builders Association, told the Washington Post, adding that he believed there were similarities between the proposed rule and last week’s Supreme Court decision. “The same logic applies here. The Department of Transportation is going outside its lane in this rule and trying to act like the EPA.”

But DeGood thinks the draft rule has a good chance of passing legal muster, and could have a “significant” impact on transportation-related carbon emissions, even if it lacks traditional enforcement mechanisms. For example, he said, the federal government could use the metrics gathered by the new rule as qualification criteria for future federal discretionary funds—essentially giving states in good standing with the regulation priority.

In many ways, DeGood added, the current performance standards simply shed light on whether states are following best highway safety practices, and those that don’t get scrutinized by the public and are often pressured into making changes. “Effectively, what we have now is naming and shaming,” he said.

That’s it this week for Today’s Climate. Thanks for reading, and I’ll be back in your inbox on Tuesday.

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