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, Moran, Lankford, Blackburn, Cramer & Braun urge VA to protect VA home loans from costly energy conservation standards

WASHINGTON –– U.S. Senator John Boozman (R-AR), a senior member of the Senate Veterans’ Affairs Committee, joined Ranking Member Jerry Moran (R-KS) and Senators James Lankford (R-OK), Marsha Blackburn (R-TN), Kevin Cramer (R-ND) and Mike Braun (R-IN) to raise concerns to Department of Veterans Affairs (VA) Secretary Denis McDonough about how recently adopted Department of Housing and Urban Development (HUD) and Department of Agriculture (USDA) energy conservation policies could impact the cost of VA home loans for veterans.

On April 26, HUD and USDA announced they would be implementing the 2021 version of the International Energy Conservation Code (IECC) as the minimum energy efficiency standards for the financing of new single and multifamily homes. 

“If adopted by the Department of Veterans Affairs, we are concerned that the revised standards could negatively affect the availability, affordability, and competitiveness of VA home loans for veterans,” wrote the senators. “Declining to finance any loans for new homes that do not meet these increased requirements, the agencies put accessible homeownership in jeopardy for thousands of veterans. Both rental and housing costs have risen at the fastest rates in decades, and any proposals that raise the cost of home building must be meticulously examined.”

“NAHB commends Sen. Moran for urging the VA Secretary to produce the department’s own analysis on how the 2021 IECC would affect housing affordability and the ability of veterans to obtain VA home loans,” said National Association of Home Builders Chairman Carl Harris. “Studies have shown that requiring new construction to adopt to the 2021 IECC can add as much as $31,000 to the price of a new home and that it would require up to 90 years for a home buyer to realize a payback on the added upfront cost of the home. Sen. Moran and the nation’s home builders are concerned that if VA were to adopt the 2021 IECC, it would prevent many of our nation’s veterans from purchasing a new home using a VA home loan.” 

The full text of the letter can be found below.

Dear Secretary McDonough,

We write to raise significant concerns about the Department of Housing and Urban Development’s (HUD) and Department of Agriculture’s (USDA) recently adopted revised energy standards for newly constructed homes insured or guaranteed by their respective Departments.

We are particularly concerned with the impact of the agencies’ final determination, implementing the 2021 version of the International Energy Conservation Code (IECC), on veteran homebuyers. By only financing new homes if they are built to the 2021 IECC standards, HUD and USDA describe the potential for a market where “new construction for Federal Housing Administration borrowers would decline.”  If adopted by the Department of Veterans Affairs (VA), we are concerned that the revised standards could negatively affect the availability, affordability, and competitiveness of VA home loans for veterans.

Recent estimates indicate that even a one thousand dollar increase in home prices would price over one hundred thousand Americans out of the housing market.  As mortgage rates hover around seven percent, the revised standards could lead prospective homeowners to pay tens of thousands of dollars more over the course of a 30-year mortgage. Included in the Regulatory Impact Analysis, HUD and USDA rightly recognize that “lower-income households are less willing than higher-income ones to accept longer payback periods for energy-efficient investments.” Declining to finance any loans for new homes that do not meet these increased requirements, the agencies put accessible homeownership in jeopardy for thousands of veterans.

Both rental and housing costs have risen at the fastest rates in decades, and any proposals that raise the cost of home building must be meticulously examined. Additionally, it is our duty to ensure that veterans have robust access to VA-financed home loans. In turn, we respectfully call your attention to a directive included in the Senate’s Fiscal Year 2025 Military Construction and Veterans Affairs Appropriations Committee Report on the revised energy standards and look forward to VA’s evaluation of how adoption would impact costs for veteran homebuyers, including the availability, affordability, and competitiveness of VA home loans.