Citing the recent Supreme Court decision in West Virginia v. Environmental Protection Agency (EPA) that clarified the limitations of agency power, the Committee Republican leaders stated, “the Biden Administration has largely relied on executive action to advance its radical agenda. For example, in his first year, President Biden issued more executive orders and approved more major rules than any recent president. We are concerned that such reliance on the administrative state undermines our system of government.”

The Members highlighted concerns about the promulgation of recent DOT rules and guidance materials which they stated, “seek to implement policies that were either rejected by Congress or are demonstrative of perverse agency decision-making.”  Members noted that “[t]his is compounded by Biden Administration-led efforts to impose partisan policies government-wide” and that “it appears as though DOT and the Administration are implementing these policies that violate the spirit of law.”

Specifically, Members highlighted several instances in which the Administration has exceeded or is seeking to exceed its authority:

• A December 16, 2021, Federal Highway Administration (FHWA) memo which, although couched as mere “guidance,” states that it is intended to be “an overarching framework to prioritize the use” of Infrastructure Investment and Jobs Act (IIJA) resources.
• The requirement that the policies from the 12/16/21 FHWA memo be incorporated into all “legacy” programs, as well as new programs created under IIJA.
• A July 7, 2022, FHWA Notice of Proposed Rulemaking that will require states and metropolitan planning organizations to establish a new performance measure for greenhouse gas (GHG) emissions associated with transportation. Congress considered and ultimately rejected a GHG performance measure requirement during the development of IIJA. 
• DOT’s layering of supplemental “merit” criteria on top of statutory requirements to determine project awards in its Notice of Funding Opportunity (NOFO) for discretionary grant programs.  By including “merit” criteria, DOT is effectively changing the purpose of the discretionary grant programs.
• The imposition of the Justice40 Initiative criteria in a broad, cross-cutting fashion, through which the Administration is essentially ruling by decree instead of following Congressional intent with regard to the affected programs.

Joining Ranking Member Sam Graves in writing to Secretary Buttigieg were Aviation Subcommittee Ranking Member Garret Graves (R-LA); Coast Guard and Maritime Transportation Subcommittee Ranking Member Bob Gibbs (R-OH); Economic Development, Public Buildings, and Emergency Management Subcommittee Ranking Member Daniel Webster (R-FL); Highways and Transit Subcommittee Ranking Member Rodney Davis (R-IL); Railroads, Pipelines, and Hazardous Materials Subcommittee Ranking Member Rick Crawford (R-AR); and Water Resources and Environment Subcommittee Ranking Member David Rouzer (R-NC).

The Ranking Members asked DOT to provide all pending and expected rulemakings, direction the Department has taken from the White House in rulemakings, and more information about the application of Justice40 to DOT programs and grant applications.