On April 22, 2016, the Federal Highway Administration ("FHWA") published a proposed rule that would require states and localities to evaluate and report on transportation system performance, including travel time reliability, delay hours, peak-hour congestion, and freight movement. In addition, reductions in criteria pollutants resulting from federally funded projects would need to be estimated and reported. The proposed rule also contemplates addressing greenhouse gas ("GHG") emissions from the transportation sector, which has been identified as the second-highest GHG source category, accounting for 26 percent of total U.S. GHG emissions.

The proposed rule invites comment on whether FHWA should establish a performance measure to address GHG emissions. The agency is considering how GHG emissions could be estimated and used to inform planning and programming decisions, and to reduce long-term emissions. FHWA proposes that GHG emissions would be best measured as the total annual tons of carbon dioxide from all on-road mobile sources. Some of the suggested comment topics illustrate further how the agency may structure the GHG reporting requirement. For example, FHWA has asked whether the measure should include emissions generated upstream in the life cycle of a vehicle, in addition to tailpipe emissions. The agency has also questioned whether non-road sources, such as construction and maintenance activities, should be considered.

FHWA acknowledges the difficulty of establishing and executing a requirement of this kind, and it has asked for information from transportation agencies about data sources, tools, implementation timelines, and costs. The expenses associated with collecting, analyzing, and reporting GHG emissions from the transportation sector can be high, especially at a time when many states and localities area already facing budget crises. For example, when the state of Washington first adopted its greenhouse gas emission inventory program, it estimated that the cost of implementation would be between $1.4 million and $3.2 million per year.

Many other states and localities, such as California and Chicago, already measure GHG emissions, including from transportation. Because EPA and FHWA have in the past encouraged state and local agencies to track GHG emissions, and many do, the Obama administration may believe that this regulatory approach will face less resistance than other GHG regulations. However, some question whether the relevant authorizing legislation allows FHWA to establish a GHG performance measure and whether the move is politically motivated.

Comments on the proposed rule are due by August 20, 2016.

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