Leaders, Groups Ask FHWA to Clarify State Autonomy

MEMO from page 88 ing and modernizing them,” saidAGC. “But it is also critical that states have the flexibility to add new capacity to meet the needs of a growing population.”

The memo’s wording produced comment from ARTBA to its members as well.

In detailing Sen. Capito’s push to overturn the memo, the association wrote that it “sought to influence state formula funding project selection.”

This by imposing policy prescriptions not included in IIJAthat could make it more difficult to expand roadway capacity.

“The GAO’s classification of the memo as a rule means it must be formally submitted to Congress before it can take effect under the CRA.”

The CRA enables congress to disapprove a final rule issued by a federal agency. The FHWA memo was never submitted to congress, according to ARTBA.

“The GAO confirmed what we have been pointing out for the past year: In its December 2021 memo, FHWAwent beyond simply restating existing legal requirements for states — it expressed a policy preference and took steps to implement that preference,” Capito said.

ARTBA wrote that it supports Sen. Capito’s and Rep. Graves’ efforts and “will work with them and FHWA to clarify state autonomy in project selection decisions.”

The calls to rescind or revise the Biden administration’s “fix-it-first” policy has its future in jeopardy.

A successful challenge of the policy by members of congress will set off the CRA resolution of disapproval, fast-tracking a debate over its future.

As Environment and Public Works Committee chair Sen. Tom Carper of Delaware said, he will stand by the memo’s role. “Congress should not be in the business of disapproving internal policy documents from any administration through the use of the CRA,” he said. “I will oppose any efforts to do so in this case as it would interfere with our ability to rebuild our nation’s roads, highways and bridges.”

Nonprofit Streetsblog reported that prohighway congressmen and women may leave the bill on Biden’s desk where he could issue a veto.

Biden’s veto would force congress to override it by two-thirds majority in both chambers.

“If the president doesn’t take that unprecedented stand, the path to enacting a similar rule in the future won’t be easy,” said Streetsblog.

“Enactment of a CRA resolution doesn’t just overturn the rulemaking; it sows the earth with salt,” wrote Jeff Davis of Eno Transportation. “The CRA says that if a rule is overturned via CRA resolution, then not only is that rule dead, but the agency is forever barred from issuing any rule in ‘substantially the same form’ as the overturned rule, unless specifically authorized in a new law enacted by congress.”

Time will tell if Biden is willing to take such a bold stand, wrote Streetsblog.

An FHWA spokesperson said that the agency is reviewing the letter and will respond directly to the group.  CEG