Republished with permission from Daily Montanan, by Blair Miller

Montana Attorney General Austin Knudsen and 20 other Republican state attorneys general sued the Biden administration Thursday in an attempt to block a recently finalized federal rule that requires states to set targets to reduce greenhouse gas emissions from transportation in their states.

The states allege in the lawsuit, filed in federal court in Kentucky, that the U.S. Department of Transportation and Federal Highway Administration, their leaders, and President Joe Biden do not have the authority to regulate those types of emissions or force states to comply with a federal program.

“The rule is another unlawful and overreaching regulation by the Biden Administration to force the president’s radical green agenda onto Americans regardless of the costs,” Knudsen said in a statement. “This one-size-fits-all approach might work for the Washington, D.C., bureaucrats who cooked it up, but it won’t work for Montana.”

The rule, finalized late last month, established a greenhouse gas performance measure that looks at the percent change in carbon dioxide emissions on the National Highway System. It compels state transportation departments to set two- and four-year statewide emissions reduction goals, which must focus on reducing greenhouse gas emissions.

Federal Highway Administrator Shailen Bhatt said the performance measure does not impose penalties for states that miss their targets.

The rule also forces state transportation departments to establish targets by Feb. 1. It is all part of the Biden administration’s goals of reducing greenhouse gas emissions to try to have net-zero emissions by 2050.

“This new performance measure will provide states with a clear and consistent framework to track carbon pollution and the flexibility to set their own climate targets—which we will also help them meet with more than $27 billion in federal funding through President Biden’s Investing in America agenda,” Transportation Secretary Pete Buttigieg said in an announcement of the rule.

But the Republican attorneys general argue that Congress has not given the FHWA or USDOT authority to regulate greenhouse gas emissions nor do they have the authority to tell states how to regulate their own policy decisions.

For the section of the lawsuit that directly describes Montana’s opposition to the rule, the suit argues that highways are extremely important to Montana’s economy, and that some highway investments can result in additional carbon dioxide emissions.

“The State of Montana seeks the ability to continue to make decisions to maximize the benefits of its highway investments. The Final Rule would impose costs and restrict or burden the State’s ability to do so,” the lawsuit says.

The states argue that while Biden made executive orders aiming to get the U.S. back on track with Paris Agreement standards after President Donald Trump withdrew from the agreement, the Senate never voted whether to join the agreement, and so it does not carry legal obligations.

The lawsuit also disagrees with the Intergovernmental Panel on Climate Change’s assessment that there is a scientific consensus that climate change is human caused, saying there are exceptions in the scientific community. That claim in the suit includes a citation to the work of Dr. Judith Curry, whom Montana chose not to call as an expert witness during the Held v. Montana trial despite paying her more than $60,000 for her work leading up to the trial.

“First, scientists are by no means unanimous that global warming is largely the result of anthropogenic sources. Second, many scientists question the validity of the studies or data,” the lawsuit says. “The models of the future used by the IPCC have not been demonstrated to account for the changes in key variables impacting the climate.”

A judge found the state was violating the Held plaintiffs’ rights under the state constitution for a clean and healthful environment by prohibiting the analyses of greenhouse gas emissions and climate impacts when approving energy projects. Knudsen’s office has appealed that ruling.

The attorneys general argue in the new lawsuit that the Biden administration’s greenhouse gas reduction efforts don’t matter on a global scale if countries like China are continuing to burn coal and increase their emissions.

The states say that by requiring state transportation departments and Metropolitan Planning Organizations report on their progress every two years in reducing emissions, that is a mandate that states cannot refuse, which they argue the federal agencies have no authority to order.

“Just because the Agencies remove the language that explicitly mandates the States set declining targets to achieve net-zero by 2050 does not mean the actual impact of the rule will not be to force States to achieve net-zero by 2050,” the suit states. “Indeed, the Final Rules says that ‘[i]f significant progress is not made for the target established for the GHG measure…then the State DOT shall document the actions it will take to achieve the GHG performance target.’”

The states argue that trying to reach net-zero involves “drastic changes” including increased electric vehicle infrastructure, changes to energy production, and more that will hurt their economies.

“Requiring declining targets for all States will still affect a vast portion of the American economy. States will be forced to make choices about projects, contracts, and regulations in order to make and meet the declining targets,” the suit says. “All of these choices can impact a State’s economy, which in turn affects the nation’s economy.”

They also claim that requiring carbon dioxide emissions be reduced would hurt rural states like Montana far more than more urban states because people have to drive larger distances and have less public transportation available.

The states say that the Feb. 1 deadline to come up with targets is hardly feasible and too costly.

“The tight timeline will certainly have consequences for the other work streams of state transportation officials,” the attorneys general wrote.

They say it is “clear” that Congress did not intend to give the FHWA or USDOT the authority to require states to lower carbon dioxide emissions and that the new rules violate federalist principles.

“In effect, the Agencies are attempting to compel the States to be foot soldiers in service to President Biden’s climate change agenda, notwithstanding their own sovereign interests and policies, and Congress’s express enactment,” the lawsuit says.

The states are asking a judge to declare the rule unlawful and to vacate it, issue injunctions blocking the administration from implementing the rule, and for attorney’s fees and costs.

Knudsen’s office said the lawsuit is the 36th Knudsen has filed again the Biden administration.