Pete Buttigieg’s Climate Toll Road

Now the Federal Highway Administration (FHWA) wants to take this abuse of authority on the road. It cites an obscure provision in federal law that authorizes it to set national “performance” goals for the national highway system. The law defines these goals as safety, infrastructure condition, congestion reduction, system reliability, freight movement and economic vitality, environmental sustainability and reduced project delivery delays.

FHWA says this “environmental sustainability” language allows it to regulate CO2 emissions. Mr. Buttigieg needs a vocabulary lesson. Climate and environment are different even if the left conflates them.

While rising CO2 emissions over time affect the climate, these effects are global. Federal highway performance standards are intended to protect the local environment from traditional vehicle pollutants such as NOx or from highway construction. Brushing past this inconvenient distinction, FHWA declares that its “proposed GHG measure would help the United States confront the increasingly urgent climate crisis.”

The Biden Administration’s climate ends always justify its illegal regulatory means. FHWA claims that states will have flexibility in setting CO2 reduction targets but in the same breath declares they must align with the Administration’s goals to reduce emissions. In other words, states have flexibility as long as they do as the Administration tells them. If they don’t, they risk losing federal highway funding. This is coercive federalism.

It’s not even clear how states would comply with the rule. Unlike traditional vehicle pollutants, CO2 can’t be easily measured by air quality monitors. Are states supposed to ban gas-guzzlers and heavy-duty trucks from the road like vehicles that fail smog checks? Will they have to gauge truck tailpipe CO2 emissions at highway weigh stations?

Possibly. The proposed rule also says states will be required “to establish declining targets for reductions in tailpipe CO2 emissions” on the national highway system. This sounds like DOT conscripting states into regulating vehicle greenhouse gas emissions, which states are expressly barred from doing under federal law.

The

Obama

and Biden Environmental Protection Agency let California impose its own emissions standards and electric-vehicle mandate. Now progressives complain most EV sales are in California and coastal states that heavily subsidize them. The DOT rule appears intended to force other states to subsidize EVs or punish drivers of gas-powered cars.

Even progressives must doubt that Mr. Buttigieg has the power he’s claiming. As evidence, their Build Back Better bill gave the FHWA money to write a rule requiring “States to set performance targets to reduce greenhouse gas emissions” and “establish an incentive structure to reward States that demonstrate the most significant progress” and “consequences” for those that don’t.

Had the bill passed, Mr. Buttigieg would at least have an express Congressional authorization. Instead, he’s doing what the Court criticized as finding “‘in a long-extant statute an unheralded power’ representing a ‘transformative expansion’” in authority. The Court’s West Virginia decision sets guardrails to prevent regulators from driving off the constitutional road.

Mr. Buttigieg is running rough-shod over the Constitution’s separation of powers. But at least the Justices have now empowered lower courts to stop him, and let’s hope they do.