October 21, 2022

AG Coalition Challenges Proposed Emissions Measure

Lori Kalani, Bernard Nash

Cozen O'Connor

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Cozen O'Connor

Oklahoma AG John O’Connor and Kentucky AG Daniel Cameron led a coalition of Republican AGs in submitting two separate comment letters challenging the Federal Highway Administration’s proposed Greenhouse Gas Emissions Measure, which would require all fifty states, the District of Columbia, and Puerto Rico to set targets to reduce tailpipe CO₂ emissions to net zero by 2050.
The first comment letter, led by AG Cameron and signed by 20 states, asserted that the proposed mandate is arbitrary and extends beyond the FHA’s legal authority granted by Congress under both the agency’s enabling statute and the recently-enacted Infrastructure Investment and Jobs Act. The states further claimed that the proposed rule violates fundamental principles of federalism by requiring states to implement a federal regulatory program that would disproportionately impact states with rural areas in which residents on average drive ten miles more per day than their urban counterparts.
18 states challenged the proposed rule as federal overreach in the second comment letter, led by AG O’Connor. There, the states asserted that the proposed rule contravenes the plain text and structure of the underlying statutes and violates the Appropriations Clause by improperly seeking to rebalance Congress’s funding priorities. In addition the states claimed that the proposed rule failed to consider the Major Questions doctrine, which provides that federal agencies cannot enact major policy changes without demonstrating “clear congressional authorization.” The states further asserted that the break-even estimates in the proposed rule are based on questionable cost-benefit calculations, and that the proposed rule’s effective date is unlawfully backdated.

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