Boozman, Cramer, Capito and colleagues file bicameral amicus brief to overturn FHWA’s unlawful rmissions rule

WASHINGTON – U.S. Senators John Boozman (R-AR), Kevin Cramer (R-ND) and Committee on Environment and Public Works Ranking Member Shelley Moore Capito (R-WV) led 27 of their colleagues in filing a bicameral amicus brief in the U.S. Court of Appeals for the Sixth Circuit opposing a final rule from the Federal Highway Administration (FHWA) that requires state departments of transportation and metropolitan planning organizations to measure greenhouse gas (GHG) emissions on the highway system and set declining targets for those GHG emissions. The brief requests that the Court uphold the April 2024, U.S. District Court decision finding that Congress did not grant the FHWA the authority to issue the rule.

The brief argues Congress explicitly debated providing the FHWA the necessary authority to issue this rule, but decided against doing so in the Infrastructure Investment and Jobs Act. The FHWA then intentionally misconstrued congressional intent and used unrelated statutory authorities to attempt to justify issuing its GHG performance measure rule. The lawmakers also contend the rulemaking is inconsistent with recent Supreme Court decisions paring back executive branch overreach, and that FHWA is ignoring principles of federalism at the expense of state governments to further its own policy agenda.

“Congress considered, and ultimately rejected, providing [FHWA] with the authority to issue a GHG performance measure regulation, but [FHWA] contorted ancillary existing authorities to impose one anyway,” the members argued. “In doing so, [FHWA] impermissibly usurped the Legislative Branch’s authority and promulgated the GHG performance measure without statutory authority delegated by Congress.” 

“Put simply, when [FHWA] established a GHG performance measure regulation, it exceeded the powers Congress authorized. And it did so both at the expense of separation of powers and in violation of the Administrative Procedure Act,” the members continued. 

Senate Republican Leader Mitch McConnell (R-KY) and Senators John Barrasso (R-WY), Mike Braun (R-IN), Katie Britt (R-AL), Ted Cruz (R-TX), Mike Crapo (R-ID), Steve Daines (R-MT), Joni Ernst (R-IA), Deb Fischer (R-NE), Lindsey Graham (R-SC), John Hoeven (R-ND), Cindy Hyde-Smith (R-MS), Cynthia Lummis (R-WY), Roger Marshall, M.D. (R-KS), Markwayne Mullin (R-OK), Pete Ricketts (R-NE), Jim Risch (R-ID), Mike Rounds (R-SD), Marco Rubio (R-FL), Rick Scott (R-FL), Tim Scott (R-SC), Dan Sullivan (R-AK), John Thune (R-SD), Tommy Tuberville (R-AL) and Roger Wicker (R-MS) – as well as U.S. Representatives Sam Graves (R-MO-06), Chairman of the Transportation and Infrastructure Committee, and Rick Crawford (R-AR-01), Chairman of the Highways and Transit Subcommittee – also cosigned the brief. 

Full text of the amicus brief is available here.

Background:

Shortly after the rule was finalized, 21 state attorneys general, including Arkansas, filed litigation challenging the regulation. The U.S. District Court found the Biden administration rule to be illegal, but FHWA appealed the decision to the Sixth Circuit Court of Appeals and it remains under further consideration. 

In April of this year, the U.S. Senate approved a Congressional Review Act (CRA) joint resolution of disapproval overturning the rule by a vote of 53-47. The bipartisan measure was led by Cramer and cosponsored by Boozman, Ranking Member Capito and dozens of their colleagues.

Boozman, Thune, Crapo Lead Colleagues in Demanding Biden Administration Increase Agricultural Exports

WASHINGTON – U.S. Senator John Boozman (R-AR), Ranking Member of the Senate Agriculture, Nutrition, and Forestry Committee, along with Sens. John Thune (R-SD) and Mike Crapo (R-ID), Ranking Member of the Senate Finance Committee, led 18 of their colleagues in urging U.S. Trade Representative Katherine Tai and U.S. Department of Agriculture Secretary Tom Vilsack to increase U.S. agricultural exports and improve the competitiveness of U.S. products abroad.  

“We expect trade to fluctuate in response to macroeconomic factors and market conditions,” wrote the senators. “However, the current sharp decline in U.S. agricultural exports is directly attributable to and exacerbated by an unambitious U.S. trade strategy that is failing to meaningfully expand market access or reduce tariff and non-tariff barriers to trade. While the Biden administration continually refuses to pursue traditional free trade agreements, China, Canada, the European Union, the United Kingdom, and others continue to ink trade pacts that diminish American export opportunities and global economic influence.”

The letter was also signed by U.S. Sens. Marsha Blackburn (R-TN), Ted Budd (R-NC), Kevin Cramer (R-ND), Steve Daines (R-MT), Joni Ernst (R-IA), Deb Fischer (R-NE), Chuck Grassley (R-IA), John Hoeven (R-ND), Ron Johnson (R-WI), James Lankford (R-OK), Roger Marshall, M.D. (R-KS), Jerry Moran (R-KS), Pete Ricketts (R-NE), Jim Risch (R-ID), Mike Rounds, (R-SD), Tim Scott (R-SC), Thom Tillis (R-NC) and Tommy Tuberville (R-AL).

 Full letter here and below:

Dear Ambassador Tai and Secretary Vilsack: 

We write to express deep concern with the continued erosion of critical markets for U.S. agricultural exports. For decades, the United States steadily increased market access for U.S. food and agricultural products. We accomplished this feat through negotiations of actual free trade agreements, removal of technical barriers to trade, and holding our trading partners accountable to their commitments, all of which have helped strengthen the agriculture economy at home and developed important strategic relationships abroad. Yet, in the last fiscal year (FY) alone, U.S. agricultural exports declined by more than $17 billion, and recent forecasts show a further decline by more than $8 billion in FY 2024. As a result, the U.S. agricultural trade deficit is projected to reach a record $30.5 billion in FY 2024. This decline is unsustainable, and we urge the Biden administration to immediately take action to improve the competitiveness of U.S. agricultural products abroad and reverse this trend.

We expect trade to fluctuate in response to macroeconomic factors and market conditions. However, the current sharp decline in U.S. agricultural exports is directly attributable to and exacerbated by an unambitious U.S. trade strategy that is failing to meaningfully expand market access or reduce tariff and non-tariff barriers to trade. While the Biden administration continually refuses to pursue traditional free trade agreements, China, Canada, the European Union, the United Kingdom, and others continue to ink trade pacts that diminish American export opportunities and global economic influence.

International trade is critical to the continued success of U.S. agriculture. For the 2023 marketing year, nearly 70 million acres of major crops like corn, soybeans, and wheat were planted to meet the demands of our foreign customers. Additionally, more than 95 percent of U.S. cotton produced, nearly 80 percent of almonds produced, and more than 70 percent of nonfat milk powder produced were destined for the export market in 2023. And in a typical year, half of U.S.-produced rice and 20 percent of U.S.-produced potatoes are exported. Diminishing access to foreign agricultural markets for U.S. industries creates significant economic headwinds and jeopardizes the livelihoods of more than one million American workers, farmers, and ranchers, as well as millions more U.S. jobs throughout the export supply chain. 

With our concerns in mind, please respond to the following questions within 14 days of your receipt of this letter. 

• What specific actions does the Biden administration plan to take to increase U.S. agricultural exports in 2024?

• Does the Biden administration intend to pursue new or improved free trade agreements with any countries to obtain new market access for agricultural products in 2024?

We further ask the Biden administration to take steps to analyze and consider the relationship between U.S. competitiveness and market share in foreign agricultural markets with negotiated tariffs, tariff rate quotas, and other market access provisions. 

A continued decline in U.S. agricultural exports is avoidable and unacceptable. The Biden administration must take immediate action to ensure this does not become a long-term trend. Thank you for your prompt attention to this important matter.