Tuesday, January 10, 2017 – 9:45 a.m.

Team ETW is preoccupied this week with the annual meeting of the Transportation Research Board here in DC, but the Department of Transportation insists on making news anyway. This includes a final highway performance measures rule from FHWA and a final 30-year forecast of national transportation trends from the Department head office. At this point we are not sure if we will have a full-fledged issue of ETW this week or just a series of updates, but expect something more after Secretary Chao’s confirmation hearing tomorrow morning.

Performance measures. The Federal Highway Administration has quietly posted the text of a final rule on its website implementing the performance measures for highways authorized by the MAP-21 law and slightly amended by the FAST Act which are codified at 23 U.S.C. §150. The final rule includes a controversial provision requiring states to measure greenhouse gas emissions on roads which was not specifically authorized by Congress in the law. Publication on an agency website is not an official act, but presumably the final rule will be published in the Federal Register and become official prior to the expiration of the Obama Administration on January 20 and then will become effective 30 days after that.

(ETW has covered this issue extensively. See our summary of the original proposed rule here, an op-ed in opposition to the GHG measure from Senator Inhofe here, an op-ed in support of the GHG measure here, and a letter from many highway stakeholder groups in opposition to the GHG measure here.)

The original proposed performance measures rule was published in the Federal Register on April 22, 2016. The final rule makes some significant changes from the proposed rule, including:

• Removing the proposed NHFP measure for percentage of the Interstate congested.
• Merging the proposed peak-hour travel time measure under NHPP with the proposed excessive delay measure under CMAQ Traffic Congestion into one measure under CMAQ, the PHED measure (Annual Hours of Peak-Hour Excessive Delay Per Capita). This new measure focuses on excessive delay experienced during peak hours in applicable urbanized areas.
• Introducing two new measures in response to extensive public comments: 1. Under NHPP System Performance – a new measure to assess system performance, specifically the percent change in CO2 emissions from the reference year 2017, generated by on-road mobile sources on the NHS (the GHG measure). All State DOTs and MPOs that have NHS mileage in their State geographic boundaries and metropolitan planning areas, respectively, will be required to establish targets and report on progress. The FHWA will assess every 2 years to determine if a State DOT has made significant progress toward achieving their targets. 2. Under CMAQ Traffic Congestion – a new measure to assess modal share, specifically the Percent of Non-SOV Travel measure. State DOTs and MPOs are provided the opportunity to use localized surveys or measurements to report on this measure and will be encouraged to report to FHWA any data not currently available in national sources (e.g., bike counts).
• Changing the weighting of the travel time measures from system miles to person- miles traveled, focusing on bus, auto, and truck occupancy levels, and providing opportunities for State DOTs and MPOs to capture more specific local occupancy levels for particular corridors or areas.
• Phasing in expanded applicability of the CMAQ Traffic Congestion measures beginning with urbanized areas with a population over 1 million in the first performance period and expanding to urbanized areas with a population over 200,000 beginning in the second performance period. These measures are to carry out the CMAQ program; therefore, the areas will be limited to urbanized areas that contain any part of nonattainment or maintenance areas for one or more pollutants listed in 23 U.S.C. 149 (ozone, carbon monoxide, or particulate matter).

But the big news is the requirement that states measure annual CO2 emissions on the National Highway System. The requirement in the final rule was the same one discussed in the proposed rule.

The fact that the GHG measure is not specifically authorized by the statute (whether it is implicitly authorized there or elsewhere is anybody’s guess), means that the next Secretary of Transportation under the Trump Administration may be able to simply refuse to enforce that part of the rulemaking and ask for even more public comment on the specific legality of a GHG measure before repealing it.

Alternatively, Congress could nullify the final rule through the Congressional Review Act in the next few months. But if Congress does nullify the rule via the CRA, then after that, FHWA is forbidden by law from reissuing the entire rule “in substantially the same form, and a new rule that is substantially the same as such a rule may not be issued, unless the reissued or new rule is specifically authorized by a law enacted after the date of the joint resolution disapproving the original rule.” This would jeopardize the performance measures which are currently authorized by law and have broad support, as well as the GHG measure.

Beyond Traffic. Yesterday, Transportation Secretary Anthony Foxx gave the keynote speech at the annual TRB meeting, at which he announced that the Department had that day issued the final version of its “Beyond Traffic 2045” forecast of the needs of the U.S. transportation system over the next 30 years. The full report can be read here.

In his remarks, Foxx used an interesting analogy to describe how all transportation policies and practices have a shelf life: “You can’t make tomorrow’s sandwich with yesterday’s mayonnaise.”

The report plays out two alternative scenarios of what will happen to the U.S. transportation system between now and 2045. The negative case, called “From Gridlock to Deadlock,” is where population growth, lack of opportunity and climate change overtake a stagnant system. The report summarizes this scenario thusly: “In general, public cynicism about transportation increases. Vehicle manufacturers advertise their products’ strong suspensions and entertainment capabilities. The quality of the transportation workforce declines as the industry is considered a backwater, while nations such as China showcase the latest technologies and operational enhancements. Political and business leaders speak of “managing the decline,” and openly predict not just gridlock in the transportation system, but complete economic gridlock as well.”

The alternate scenario, “A Better Path,” lays out what would happen, in their view, if the U.S. follows the spending level, climate change mitigation, technology integration, and modal preference policies of the current Administration.