By Nick Goldstein, vice president of regulatory affairs & assistant general counsel, ARTBA

The Federal Highway Administration (FHWA) is considering new ways to monitor greenhouse gas (GHG) emissions from transportation projects. If successful, such climate-focused mandates could be used as a pretext to delay or discourage transportation construction at a time when America desperately needs to repair and build transportation infrastructure.

The proposal surfaced this week in an advance copy of FHWA’s forthcoming Notice of Proposed Rulemaking (NPRM), due for release April 22. Performance management regulations on a variety of areas include freight movement and the congestion mitigation air quality (CMAQ) program are required by the 2013 “Moving Ahead for Progress in the 21st Century” (MAP-21) reauthorization law.

FHWA will begin seeking comment on “whether or how to establish a CO2 emissions measure” for transportation projects in the final version of the rule. Additionally, FHWA is exploring which emissions to monitor if a GHG tracking measure is established, such as from road vehicles, construction equipment, or both. Establishing a GHG tracking system raises the possibility of specific emissions targets for states to include in long-range transportation plans and could be tied to federal transportation funding.

Creating a GHG tracking system for transportation projects raises other concerns, since the proposal exceeds the bipartisan mandate from Congress in MAP-21.  While that legislation allows consideration of “environmental stability” when developing performance measures, there is no specific directive to establish a system to account for greenhouse gas emissions. In fact, ARTBA specifically warned of this sort of “mission creep” shortly after the passage of MAP-21 in its Trans 2020 report. It states:

“The authors of MAP-21 had the opportunity to include a host of external goals such as livability, reduction of transportation-related greenhouse gas emissions, reduction of reliance on foreign oil, adaptation to the effects of climate change, public health, housing, land-use patterns and air quality in the planning and performance process.  Instead, Section 1203 of MAP-21 listed only one goal—environmental sustainability—that is not directly related to physical conditions and operational performance of the National Highway System. The same is true for the metropolitan and statewide planning processes laid out in Sections 1201-1202.

“Accordingly, the U.S. Department of Transportation (DOT) should focus on implementing the goals and standards as spelled out in MAP-21.  While there may be stakeholders and perspectives that did not achieve their full objectives in the legislative process, we urge you to resist any recommendations to re-open the delicate compromise achieved in MAP-21 through over interpretation of the measure’s performance process.  The simple fact is that few interest groups, including ARTBA, are entirely satisfied with every aspect of major legislation.  That reality should in no way tarnish MAP-21’s meaningful policy reforms.  Further, the common ground found during the legislative process is one of the main reasons MAP-21 was among the few significant pieces of legislation to secure broad bipartisan support during the 112th Congress.”

This is hardly the only regulation the Obama Administration is trying to push through during its final months in office. As ARTBA has reported, new rules on worker silica exposure, employee salary records, and expanding government oversight of water quality have also caused recent concern.

The final version of the NPRM will be followed by a 90-day comment period.  ARTBA will study the NPRM carefully and prepare detailed comments.  Please contact me with any questions at ngoldstein@artba.org.