State of Texas et al v. U.S. Department of Transportation et al

Filing 34

Memorandum Opinion and Order: For the reasons stated in the attached memorandum opinion and order, the Court grants the plaintiffs' Motion for Summary Judgment 18 and denies the defendants' Cross-Motion for Summary Judgment 24 . The Court concludes that the challenged rule was promulgated in excess of the Department of Transportations statutory authority. Therefore, in accordance with the Administrative Procedure Act and Fifth Circuit precedent, the Court sets aside and vacates the final rule. The Court will enter a final judgment, including a seven-day administrative stay, by separate order. (Ordered by Judge James Wesley Hendrix on 3/27/2024) (chmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
STATE OF TEXAS, et al.,
Plaintiffs,
v.

No. 5:23-CV-304-H

UNITED STATES DEPARTMENT OF
TRANSPORTATION, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
A federal administrative agency cannot act without congressional authorization.
Here, the Federal Highway Administration created a rule requiring the states to measure,
report, and set declining targets for the amount of carbon dioxide emitted by vehicles using
the interstate and national-highway systems. For authority, the agency relied on 23 U.S.C.
§ 150(c)(3), which permits it to create measures to assess pavement conditions, bridge
conditions, and “the performance of the Interstate System . . . [and] the National Highway
System.” Texas sued, alleging that the agency lacked authority to enact the rule. Given the
statutory text’s plain language and context, the Court agrees. The relevant definitions and
related performance measures make clear that “performance of the Interstate/National
Highway Systems” focuses on the infrastructure’s effectiveness in facilitating travel,
commerce, and national defense—not environmental outputs of vehicles using the systems.
Moreover, the DOT’s expansive interpretation is undermined by the fact that adopting it
would render other statutory provisions superfluous. Additionally, Section 150(c)(3)’s
performance measures only exist to carry out Section 119’s National Highway Performance
Program, which also distinguishes between the highway system’s performance and
environmental impact. Thus, the Court concludes that the rule was unauthorized.

1.

Factual and Procedural Background
A.

The National Highway Performance Program (NHPP) and 23 U.S.C.
§ 150’s Performance Measures
i.

The NHPP facilitates the construction, maintenance, and
improvement of the nation’s transportation infrastructure.

The federal government has provided some form of highway funding to the states for
more than 100 years. These programs are “almost entirely focused on highway
construction,” and “[s]tate [departments of transportation (DOTs)] largely determine which
projects are funded” so long as the fund-use is statutorily authorized. Robert S. Kirk, Cong.
Rsch. Serv., R47022, Federal Highway Programs: In Brief 1 (2022). The NHPP is the
largest federal-aid highway program in the country, with recent annual authorizations
averaging nearly $30 billion dollars. Id. at 5. The NHPP “funds projects to achieve national
performance goals consistent with state and metropolitan planning” by supporting
“improvement of the condition and performance of the National Highway System, which
includes Interstate System highways and bridges.” Id.
The NHPP’s statutory authorization and funding requirements are found in 23
U.S.C. § 119. In addition to restricting the way that funds may be used, the statute also
identifies the program’s four broad purposes:
(1) to provide support for the condition and performance of the National
Highway System;
(2) to provide support for the construction of new facilities on the National
Highway System;
(3) to ensure that investments of Federal-aid funds in highway construction are
directed to support progress toward the achievement of performance targets
established in an asset management plan of a [s]tate for the National
Highway System; and

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(4) to provide support for activities to increase the resiliency of the National
Highway System to mitigate the cost of damages from sea level rise,
extreme weather events, flooding, wildfires, or other natural disasters.
23 U.S.C. § 119(b). Conceivably, a broad range of projects could support those purposes,
but the statute only funds certain “eligible projects” that are consistent with them. See id.
§ 119(d).
To be eligible for funding, projects must first “support[] progress toward the
achievement of national performance goals for improving infrastructure condition, safety,
congestion reduction, system reliability, or freight movement on the National Highway
System.” Id. § 119(d)(1)(A). Second, projects must be consistent with the broader
transportation planning process and its goals, which are codified at 23 U.S.C. §§ 134 and
135. 1 Id. § 119(d)(1)(B). Should a project meet those two threshold requirements, Section
119 then provides a specific list of purposes that NHPP funds may finance. See id.
§ 119(d)(2). Many of those purposes relate to building, maintaining, or improving the
23 U.S.C. § 134 is entitled “Metropolitan transportation planning.” The goal of the statute is “to
encourage and promote the safe and efficient management, operation, and development of surface
transportation systems” that will “serve the mobility needs of people and freight,” “foster economic
growth and development,” and “better connect housing and employment,” while “minimizing
transportation-related fuel consumption and air pollution through metropolitan and statewide
transportation planning processes identified in this chapter.” 23 U.S.C. § 134(a)(1). Broadly
speaking, the section is devoted to laying out the planning requirements for “long-range
transportation plans and transportation improvement programs through a performance-driven,
outcome-based approach to planning for metropolitan areas of [a] [s]tate.” Id. § 134(c)(1).

1

23 U.S.C. § 135 is entitled “Statewide and nonmetropolitan transportation planning.” Section 135
explicitly incorporates the goals laid out in Section 134(a), in addition to other stated goals. Id.
§ 135(a). In general, whereas Section 134 is focused specifically on metropolitan areas, Section 135
provides for the transportation-planning process for non-metropolitan areas. See generally id. § 135.
In many respects, Sections 134 and 135 have similar, if not identical, language and fulfill similar
purposes as to their respective targets (metropolitan areas and non-metropolitan areas). See generally
id. §§ 134, 135. States and the designated organizations are required to complete these plans to be
eligible for NHPP funds. See id. §§ 134(c), 135(a).

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physical infrastructure of the National Highway System, the Interstate System, and other
federal-aid highways, as well as the tunnels, bridges, ferries, and public bus stations that
service those systems. See, e.g., id. § 119(d)(2)(A)–(C), (F), (G), (P). Other purposes
authorize funding for operational programs, such as training bridge and tunnel inspectors,
paying for the bridge and tunnel inspections themselves, or providing for the operating costs
of traffic-monitoring systems. See, e.g., id. § 119(d)(2)(D), (E), (J). Some purposes authorize
funding for specific environment-related projects, like mitigating water pollution or
environmental degradation caused by a transportation facility, controlling noxious weeds,
implementing mitigation efforts authorized by Section 119(g), 2 or making resiliency
improvements along the National Highway System. 3 See, e.g., id. § 119(d)(2)(M)–(O), (R).
Thus, to be eligible for funding under the NHPP, a project must (1) support progress
towards a specified national performance goal or goals; (2) be consistent with Sections 134
and 135; and (3) qualify as one of the explicitly enumerated purposes. See id. § 119(d).

Section 119(g) authorizes NHPP funds for “participation in natural habitat and wetlands mitigation
efforts.” 23 U.S.C. § 119(g)(1). These authorized efforts include “participation in mitigation
banking or other third-party mitigation arrangements,” “contributions to statewide and regional
efforts to conserve, restore, enhance, and create natural habitats and wetlands,” and “the
development of statewide and regional environmental protection plans.” Id. Authorization is
limited, however, to programs “relating to projects funded under [Title 23].” Id.

2

This authorization allows funds to go toward the “protective features” described in Section
119(k)(2), which include things likes “raising roadway grades,” “relocating roadways” located in
flood plains, and “increasing the size or number of drainage structures.” U.S.C. § 119(d)(2)(R),
(k)(2).

3

–4–

ii.

Section 150 authorizes the federal Department of Transportation
(DOT) to promulgate performance measures to accomplish the
NHPP’s purpose.

In 2012, and then again in 2015, Congress amended the NHPP to authorize the
Secretary of Transportation to promulgate rules establishing “performance measures.” 4 See
id. § 150. These performance measures “provide a means to the most efficient investment of
[f]ederal transportation funds by refocusing on national transportation goals . . . and
improving project decisionmaking through performance-based planning and programming.”
Id. § 150(a). Section 150 then lists seven “national goals” on which “Federal-aid highway
program[s]” should be focused, including safety, infrastructure condition, congestion
reduction, system reliability, freight movement and economic vitality, and reduced project
delivery delays. Id. § 150(b). Most relevant here is the goal of environmental sustainability:
“To enhance the performance of the transportation system while protecting and enhancing
the natural environment.” Id. § 150(b)(6).
In spite of those broad national goals, Section 150’s reach is limited. The statute
provides that performance measures may only be promulgated if they are specifically
authorized in Section 150(c). Id. § 150(c)(2)(C). In other words, Congress deliberately
Section 150 was last amended in December 2015. See Fixing America’s Surface Transportation
Act, Pub. L. No. 114-94, § 1446, 129 Stat. 1312, 1437–38 (2015). That said, Congress has
considered amending Section 150 in the years since. The parties dispute whether one prior proposed
amendment is relevant to the analysis. Specifically, an earlier House of Representatives version of
the Infrastructure Investment and Jobs Act, Pub. L. No. 117-58, 135 Stat. 429 (2021), would have
amended Section 150. See INVEST in America Act, H.R. 3684, 117th Cong. § 1403 (2021) (as
introduced in the House).
4

One such proposed amendment would have authorized federal agencies to establish “measures for
the [s]tates to use to assess (A) carbon dioxide emissions per capita on public roads; (B) carbon
dioxide emissions using different parameters than described in subparagraph (A) that the Secretary
determines to be appropriate; and (C) any other greenhouse gas emissions on public roads that the
Secretary determines to be appropriate.” Id. This language was ultimately stricken from the final
bill and the subsequently codified law. See Infrastructure Investment and Jobs Act, Pub. L. No. 11758, 135 Stat. 429 (2021).

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limited the types of performance measures that Section 150 authorizes the government to
create. See id. Sections 150(c)(3)–(6) describe the authorized measures, three categories of
which are specifically tied to other provisions of Title 23. Section 150(c)(3)’s measures, for
instance, are “for the purpose of carrying out [S]ection 119.” Id. § 150(c)(3). To that end,
Section 150(c)(3) directs the Secretary to establish “measures for [s]tates to use to assess”
pavement conditions, bridge conditions, and “the performance of the Interstate System . . .
[and] the performance of the National Highway System.” Id. § 150(c)(3)(A).
The statute mandates measures for three additional topics—highway safety,
congestion mitigation and air quality, and national freight movement. Id. § 150(c)(4)–(6).
And, regarding air quality, Congress specifically directs the Secretary to establish measures
relating to “on-road mobile source emissions.” Id. § 150(c)(5). For safety and air quality,
the measures are for the purposes of carrying out 23 U.S.C. §§ 148 and 149. 5 See id.
§ 150(c)(4)–(5). Further, while not tied to another provision of Title 23, Section 150(c)(6)
requires the Secretary to “establish measures for [s]tates to use to assess freight movement
on the Interstate System.” Id. § 150(c)(6). In addition to the rule-making authorization, the
statute requires such measures to be promulgated in a specific manner and for states to
report on their progress towards achieving such measures. See id. § 150(c)(1)–(2), (e).

Section 148 codifies the Highway Safety Improvement Program—the purpose of which is to
“achieve a significant reduction in traffic fatalities and serious injuries on all public roads” by
authorizing funding for safety-related projects and planning. See 23 U.S.C. § 148. Section 149
codifies the Congestion Mitigation and Air Quality Improvement Program, which authorizes Title
23 funds for specific projects which include the regulation of on-road mobile source emissions like
ozone, carbon monoxide, and particulate matter. Id. § 149.

5

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B.

The History of the DOT’s Greenhouse Gas (GHG) Emissions Measure
i.

The 2017 Rule

Following the codification of Section 150, the first performance-measurement rules
were issued in 2016.6 One such rule, promulgated by the DOT’s Federal Highway
Administration, 7 established a performance measure related to GHG emissions. See
National Performance Management Measures; Assessing Performance of the National
Highway System, Freight Movement on the Interstate System, and Congestion Mitigation
and Air Quality Improvement Program, 82 Fed. Reg. 5970, 5974 (Jan. 18, 2017) (to be
codified at 23 C.F.R. pt. 490) (the “2017 Rule”). In relevant part, the rule required state
DOTs and metropolitan planning organizations (MPOs) to measure and track CO2
emissions on system highways, “establish [declining CO2 emissions targets,] and report on
[their] progress” towards achieving those targets. Id. at 5974, 5980–81.
For statutory support for the GHG emissions measure, the DOT relied on the
general provisions of Section 150(c)(3)(A)(ii), which authorize it to establish metrics to
assess the “performance” of the Interstate System and National Highway System. Id. at
5994; see also 23 U.S.C. § 150(c)(3)(A)(ii)(IV)–(V). In finding that authority, the DOT
interpreted “performance” to include “environmental performance,” which it described as
“an integral part of the Federal-aid Highway Program.” 82 Fed. Reg. at 5995. It claimed

See, e.g., National Performance Management Measures: Highway Safety Improvement Program, 81
Fed. Reg. 13882 (Mar. 15, 2016) (to be codified at 23 C.F.R. pt. 490); National Performance
Management Measures; Assessing Pavement Condition for the National Highway Performance
Program and Bridge Condition for the National Highway Performance Program, 82 Fed. Reg. 5886
(Jan. 18, 2017) (to be codified at 23 C.F.R. pt. 490).

6

Because Section 150 requires “the Secretary” of Transportation to “promulgate . . . rulemaking[s]
that establish[] performance measures and standards,” 23 U.S.C. § 150(c)(1), the Court refers to the
rules as DOT actions.

7

–7–

that its interpretation was supported by the national goal of “environmental sustainability”
found in Section 150(b)(6), the transportation-planning provisions in Sections 134 and 135,
and other provisions in Title 23. See id. The interrelatedness of the various provisions, the
DOT argued, supported a broad interpretation of “performance,” which then necessarily
included “environmental performance.” See id. at 5995–96. But the 2017 Rule’s shelf life
was short.
ii.

The 2018 Rule’s Repeal of the 2017 Rule

The agency reversed course in 2018 and concluded that Section 150 did not enable
the agency to establish a GHG emissions measure. Following a change in the presidential
administration and a series of executive orders, 8 the DOT began a review of its existing
regulations “to determine whether changes would be appropriate to eliminate duplicative
regulations and streamline regulatory processes.” National Performance Management
Measures; Assessing Performance of the National Highway System, Freight Movement on
the Interstate System, and Congestion Mitigation and Air Quality Improvement Program,
83 Fed. Reg. 24920, 24922 (May 31, 2018) (codified at 23 C.F.R. pt. 490) (the “2018 Rule”).
The DOT subsequently identified the 2017 Rule, and specifically the GHG emissions
measure, as one such regulation. See id. As a result, the DOT began the process of the
rule’s repeal. See id.
The 2018 Rule was simple in scope—it repealed the 2017 Rule. Id. at 24920. In
doing so, it identified three problems with the 2017 Rule: (1) that the 2017 Rule exceeded
the statutory authority delegated to the DOT in Section 150; (2) that the costs of the 2017

See, e.g., Exec. Order No. 13771, 82 Fed. Reg. 9339 (Jan. 30, 2017); Exec. Order No. 13777, 82
Fed. Reg. 12285 (Feb. 24, 2017).

8

–8–

Rule outweighed its benefits; and (3) that the 2017 Rule was duplicative of other regulatory
efforts. See id. at 24923–26. Particularly, it stated that the 2017 Rule could point to no
“statutory provision that specifically directs or requires [the DOT] to adopt a GHG
measure.” Id. at 24923. It further observed that “the national goals language” in Section
119(d)(1)(A) imposed limitations on NHPP funds. Id. at 24923–24. Section 119’s language
focuses on “physical condition[s] of the system and the efficiency of transportation
operations across the system . . . [but it does not] support [the DOT’s] prior, broader
interpretation of ‘performance’ under [S]ection 150(c)(3).” Id. In other words, “[t]he
structure of [S]ection 150 itself supports a narrower construction of the [S]ection 150
performance measures authorization than previously adopted by [the DOT].” Id. at 24924.
And, for a few years, that was the final word on the matter.
iii.

The 2022 Proposed Rule and the 2023 Final Rule

In 2022, after another administration change and updated agency directives, 9 the
DOT once again revisited the scope of its authority under Section 150, and it began the
process of promulgating a new iteration of the GHG emissions measure. National
Performance Management Measures; Assessing Performance of the National Highway
System, Greenhouse Gas Emissions Measure, 87 Fed. Reg. 42401, 42402–03 (proposed July
15, 2022) (to be codified at 23 C.F.R. pt. 490) (the “2022 Proposed Rule”). The 2022
Proposed Rule sought to re-establish the GHG emissions measure, and it proposed
requiring states “to establish declining [CO2] targets and to establish a method for the
measurement and reporting of [GHG] emissions associated with transportation” on the

See, e.g., Exec. Order No. 13990, 86 Fed. Reg. 7037 (Jan. 20, 2021); Exec. Order No. 14008, 86
Fed. Reg. 7619 (Jan. 27, 2021).

9

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highway system. Id. at 42401. Unlike the 2017 Rule, it gave states additional flexibility to
establish their own targets, but it required those targets to meet the Administration’s targets
of net-zero emissions by 2050. Id.
Despite the 2018 Rule, the DOT asserted that it did in fact have the authority to
promulgate the GHG emissions measure under Section 150(c)(3)(A)(ii)(IV)–(V). See id. at
42407–10. The agency’s review contended that the 2018 Rule had “adopted a narrow
interpretation of” Section 150 and that the 2022 Proposed Rule’s reading was consistent
with the statute. Id. at 42408. In response, Texas and the Texas Department of
Transportation (TXDOT) each commented on the proposed rule’s statutory authorization.
See Dkt. Nos. 1-3 (Texas’s comments on the proposed rule); 1-6 (TXDOT’s comments on
the proposed rule). Each entity claimed, among other things, that the 2022 Proposed Rule
would exceed the statutory authority present in Section 150. Dkt. Nos. 1-3 at 6, 8 (arguing
that the DOT’s interpretation of “performance” ignores the statutory text found in Section
119 and that the national-goals language found in Section 150(b)(6) does not create rulemaking authority); 1-6 at 4 (arguing the same).
The agency disagreed. In December 2023, the DOT issued the 2023 Rule
establishing the GHG measure. National Performance Management Measures; Assessing
Performance of the National Highway System, Greenhouse Gas Emissions Measure, 88
Fed. Reg. 85364 (Dec. 7, 2023) (to be codified at 23 C.F.R. pt. 490) (the “2023 Rule”). The
2023 Rule was different than the 2022 Proposed Rule in two primary ways. First, the 2023
Rule clarified that while states must set declining targets for GHG emissions, those targets
do not need to demonstrate reductions toward net-zero emissions by 2050. Id. at 85380.
Second, the 2023 Rule stated that there were no penalties for a state’s failure to meet those

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targets or even to achieve significant progress toward those targets—other than having to
explain the lack of progress towards its self-established target. Id. at 85378. A state that
“set[s] a declining target but fail[s] to achieve [that] target[] can satisfy regulatory
requirements by documenting the actions [the state] will take to achieve that target” in their
next report. Id. Aside from those differences, the crux of the 2022 Proposed Rule
remained—states are required to measure and report CO2 emissions generated by on-road
mobile sources on the highway system and to establish declining CO2 emission targets. See
id. at 85364.
The finalized 2023 Rule reiterates that the DOT relied on 23 U.S.C.
§ 150(c)(3)(A)(ii)(IV)–(V) for statutory authority. The 2023 Rule “reaffirms that Congress
provided the [DOT] with clear authority” to promulgate the GHG emissions measure. See
id. at 85367. That directive, the DOT argues, necessarily means that “performance” in
Section 150(c)(3)(A)(ii)(IV)–(V) includes “environmental performance.” See id. The DOT
asserts that its current reading of “performance” is limited in scope to the performance only
of the National Highway System and the Interstate System, but it nevertheless broadly
authorizes the DOT to attack climate change. See id. at 85375–76, 85379. It further argues
that its current reading of “performance” is consistent with other sections of Title 23, see id.
at 85367–68, and that the 2018 Rule’s statutory analysis was flawed, id. at 85369–70. The
2023 Rule was scheduled to take effect on January 8, 2024, with the states’ targets originally
due on February 1, 2024. Id. at 85364.
C.

Procedural History

On December 19, 2023, Texas and TXDOT filed a complaint challenging the legality
of the 2023 Rule. Dkt. No. 1. The complaint alleges that the 2023 Rule: (1) exceeds the

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DOT’s statutory authority; (2) is arbitrary and capricious in violation of the Administrative
Procedure Act (APA); and (3) violates the Spending Clause of the U.S. Constitution. Id. at
17–22. The plaintiffs seek a declaration from the Court that the 2023 Rule is unlawful
because it was promulgated in excess of the agency’s authority and that it was arbitrary and
capricious, vacatur of the 2023 Rule, and attorneys’ fees. Id. at 22. After several weeks had
passed, and in light of the looming February 1 reporting deadline, the Court ordered the
plaintiffs to report on the status of this case, including whether the plaintiffs intended to
request emergency relief. Dkt. No. 5.
In response to that Order, the plaintiffs informed the Court that they did intend to
seek a preliminary injunction, see Dkt. No. 7, so the Court ordered the parties to confer and
submit a proposed briefing schedule, see Dkt. No. 8. Shortly after the plaintiffs filed their
request for an injunction (Dkt. Nos. 9–10), the parties informed the Court that they had
agreed to a “45-day extension of the [2023] Rule’s upcoming deadline”—effectively pushing
the operative date of the 2023 Rule to March 17, 2024, see Dkt. No. 11. The Court issued a
scheduling order adopting the parties’ proposed schedule. Id.; Dkt. No. 12. The parties
later informed the Court that the defendants had extended the 2023 Rule’s delayed deadline
from March 17, 2024, to March 29, 2024. Dkt. No. 13. Further, the parties notified the
Court that they wished to resolve this case on the merits through cross-motions for summary
judgment. Id. In light of that update, the Court vacated its previous scheduling order and
set a schedule for the parties to complete briefing on the cross-motions for summary
judgment. Dkt. No. 14.
After the plaintiffs withdrew their motion for a preliminary injunction (Dkt. Nos. 16;
17), they filed their motion for summary judgment (Dkt. No. 18). The defendants

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responded with their own cross-motion for summary judgment. Dkt. No. 24. Briefing on
the cross-motions is now complete. The American Road and Transportation Builders
Association and the Associated General Contractors of America, Inc. (together, “Amici”)
filed an amicus brief in support of the plaintiffs. Dkt. No. 28. Further, the defendants have
filed a copy of the 2023 Rule’s administrative record. Dkt. No. 15. The cross-motions for
summary judgment (Dkt. Nos. 18; 24) are now ripe and before the Court.
2.

Standard of Review
The parties agree that summary judgment is appropriate to resolve the plaintiffs’

complaint. See Dkt. No. 13 at 1. Summary judgment is proper where “there is no genuine
issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). In the context of a challenge to an agency action under the APA,
“[s]ummary judgment is the proper mechanism for deciding, as a matter of law, whether an
agency action is supported by the administrative record and consistent with the APA
standard of review.” Blue Ocean Inst. v. Gutierrez, 585 F. Supp. 2d 36, 41 (D.D.C. 2008). In
other words, in evaluating an APA case on summary judgment, courts apply the standard of
review from the APA. See Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 627 (5th Cir. 2001).
That standard requires a court to “hold unlawful and set aside agency action, findings, and
conclusions found to be,” among other things, promulgated in excess of statutory authority.
5 U.S.C. § 706(2)(A)–(D).
3.

Jurisdiction
Neither party has challenged the Court’s jurisdiction. But even where Article III

standing has not been challenged, a court “must—where necessary—raise it sua sponte.”
Ford v. NYLCare Health Plans of Gulf Coast, Inc., 301 F.3d 329, 331–32 (5th Cir. 2002).

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Federal courts have jurisdiction over cases or controversies only, and standing is “an
essential and unchanging part of the case-or-controversy requirement of Article III.” Lujan
v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). “[S]tanding is not dispensed in gross,” so a
court must conclude that standing has been established as to each claim and for each form
of relief sought. See TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021). To demonstrate
standing, the plaintiffs must suffer an “injury in fact” that is both “concrete and
particularized” and “actual or imminent.” Lujan, 504 U.S. at 560 (quoting Whitmore v.
Arkansas, 495 U.S. 149, 155 (1990)). That injury must be “fairly traceable to the challenged
action of the defendants.” Id. (cleaned up) (quoting Simon v. E. Ky. Welfare Rts. Org., 426
U.S. 26, 41–42 (1976)). And it must be “likely”—not speculative—that the injury will be
“redressed by a favorable decision.” Id. at 561 (quoting Simon, 426 U.S. at 38). The
“ordinary rule,” however, is that a party that is the “object of the regulation may challenge
it.” Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 266 (5th Cir. 2015) (cleaned
up). The Court considers each aspect of standing in turn. But in light of the lack of any
challenge to the Court’s jurisdiction, it does so briefly.
First, the Court finds that the plaintiffs would suffer an injury in fact if the 2023 Rule
were to take effect. While such injury need not have already occurred, an injury must be
“certainly impending” for a court to find that there is an injury in fact. See Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (emphasis omitted) (quoting Lujan, 504 U.S. at
565 n.2). Here, the 2023 Rule would indisputably require either Texas or TXDOT 10 to

All that is required of the case-or-controversy requirement is that one party has standing. See
Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 52 n.2 (2006). The 2023 Rule itself does
not make clear which plaintiff would bear this cost—but it is obvious that one of them would. See
Dkt. No. 15-2 at 2.
10

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expend compliance costs. Dkt. No. 15-2 at 2; see also Dkt. Nos. 19 at 21 (noting that the
2023 Rule would require compliance costs); 25 at 24 (estimating the final cost to state
DOTs). At a minimum, the plaintiffs would be forced to spend money to “establish[] the
GHG measure” and “implement[] the GHG measure for each component of the rule that
may involve costs.” Dkt. No. 15-2 at 2. This “amounts to an increased regulatory burden,”
which “typically satisfies the injury in fact requirement.” Contender Farms, L.L.P., 779 F.3d
at 266. The Court finds that this certainly impending injury is sufficient to establish the
plaintiffs’ injury in fact.
Resolving the remaining two elements of standing is straightforward. Where a
plaintiff would suffer injury as the object of the challenged government action, “there is
ordinarily little question that the action . . . has caused him injury, and that a judgment
preventing . . . the action will redress it.” Id. at 264 (quoting Lujan, 504 U.S. at 561–62).
Here, there is little doubt that the plaintiffs’ imminent injuries—which they would incur
should the 2023 Rule take effect—are the direct result of the DOT’s enforcement of the 2023
Rule and are therefore fairly traceable to the challenged rule. See Dkt. No. 15-2 at 2.
Further, the relief sought by the plaintiffs—vacatur of the rule—would redress the plaintiffs’
injuries. Without the 2023 Rule, the plaintiffs need not incur costs from establishing and
implementing the GHG emissions measure. Therefore, the Court finds that the plaintiffs
have established traceability and redressability. And finding that all three elements of
standing are present, the Court concludes that the plaintiffs have standing to challenge the
2023 Rule.

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4.

Analysis
A.

Administrative agencies may only do what Congress authorizes them to do.

“It is axiomatic that an administrative agency’s power to promulgate legislative
regulations is limited to the authority delegated [to it] by Congress.” VanDerStok v. Garland,
86 F.4th 179, 187 (5th Cir. 2023) (quoting Bowen v. Georgetown Univ. Hosp., 488 U.S. 204,
208 (1988)). Legislative grants to agencies are policed by the APA, which requires courts to
“set aside agency action found to be, among other things, ‘in excess of statutory jurisdiction,
authority, or limitations, or short of statutory right.’” Id. at 187–88 (quoting 5 U.S.C.
§ 706(2)(C)). The “core inquiry” in an APA case is whether the rule in question is a “lawful
extension of the statute under which the agency purports to act, or whether the agency has
indeed exceeded its ‘statutory jurisdiction, authority, or limitations.’” Id. at 188 (quoting 5
U.S.C. § 706(2)(C)).
“No matter how it is framed, the question a court faces when confronted with an
agency’s interpretation of a statute it administers is always, simply, whether the agency has
stayed within the bounds of its statutory authority.” City of Arlington v. FCC, 569 U.S. 290,
297 (2013) (emphasis omitted). Therefore, an analysis of a rule’s authority must begin with
the text of the authorizing statute. Sackett v. EPA, 598 U.S. 651, 671 (2023). The “ordinary
meaning and structure of the law itself” guides this inquiry. Food Mktg. Inst. v. Argus Leader
Media, 139 S. Ct. 2356, 2364 (2019). The words of an authorizing statute must be read “in
their context and with a view to their place in the overall statutory scheme.” Davis v. Mich.
Dep’t of Treasury, 489 U.S. 803, 809 (1989); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291
(1988) (“In ascertaining the plain meaning of the statute, the court must look to the
particular statutory language at issue, as well as the language and design of the statute as a

– 16 –

whole.”). After all, a word’s context in a statute dictates its meaning. See Graham Cnty. Soil
& Water Conservation Dist. v. United States ex rel. Wilson, 559 U.S. 280, 289–90 (2010) (stating
that “[s]tatutory language has meaning only in context” and that a court has a “duty to
construe statutes, not isolated provisions” (alteration in original) (quotations omitted)).
Additionally, statutory interpretation is not an exercise in determining “the outer
limits of [a word’s] definitional possibilities.” See FCC v. AT&T Inc., 562 U.S. 397, 407
(2011) (alteration in original) (quoting Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006)).
Flowing from that principle, courts have generally looked with suspicion on “cryptic”
delegations of authority. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 160
(2000). Courts should generally be skeptical of agencies that seek to find “elephants in
mouseholes” or otherwise seek to rely on tiny grants of authority to justify major actions.
See West Virginia v. EPA, 597 U.S. 697, 746–47 (2022) (Gorsuch, J., concurring) (quoting
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)).
B.

The DOT’s authorization to promulgate performance measures is expressly
limited to those listed in Section 150(c).

As detailed above, Congress created the NHPP to provide support for the condition
and construction of the National Highway System. 23 U.S.C. § 119(a), (b)(1)–(2). The
NHPP also ensures that investments of federal highway funds “are directed to support
progress toward the achievement of performance targets” established in a state’s assetmanagement plan. Id. § 119(b)(3). The NHPP further provides funding to states for eligible
projects. Id. § 119(d).
But Congress did not want to invest blindly in the highway system. As a result,
Congress ordered the DOT to establish certain performance measures and targets, which
“provide a means to the most efficient investment of [f]ederal transportation funds.” Id.
– 17 –

§ 150(a), (c). The states, in turn, must track those measures for use in NHPP-fund
investment and set targets based off those measures. See id. § 150(c)–(d). States must then
submit reports to the DOT detailing, among other things, their progress toward achieving
those targets. Id. § 150(e).
Critically, however, Congress did not authorize the DOT to create any performance
measure it deemed appropriate. To the contrary, Congress expressly limited the permissible
performance measures to only those specifically enumerated in the statute. Id. § 150(c)(2).
The statute provides that, “[i]n carrying out paragraph (1) [establishing performance
measures and standards], the Secretary shall . . . limit performance measures only to those
described in this subsection[—that is, subsection 150(c)].” Id. § 150(c)(2)(C).
Thus, Congress provided a clearly delineated and expressly limited grant of authority
to the DOT in establishing performance measures, and the Court must be faithful to that
limitation. And precedent makes clear that when Congress provides an agency with a
limited grant of authority, courts should be hesitant to adopt an agency’s expansive
interpretation of its own power. See Biden v. Nebraska, 143 S. Ct. 2355, 2368–71 (2023)
(interpreting a limiting provision to require a strict reading of a statute’s authorization).
Recognizing this limitation, the DOT cites Section 150(c)(3)(A)(ii) as authority to establish
the GHG emissions measure, but Section 150(c)’s limited, precise statutory language cannot
bear the weight of the DOT’s proposed expansive interpretation. 11

Although the Court interprets Section 150’s scope of authority in light of this express limitation,
the Court does not rely on the major-questions doctrine. The plaintiffs invite the Court to invoke the
doctrine because, in their view, the states will incur significant costs to comply with the 2023 Rule.
See Dkt. No. 19 at 21–22; see also West Virginia, 597 U.S. at 716, 724–32 (discussing the majorquestions doctrine). The defendants counter that the doctrine does not apply because the costs are
limited to around $13 million. See Dkt. No. 25 at 20–21. But because the statutory language itself
makes clear that the DOT lacked authorization to promulgate the 2023 Rule, the Court need not
11

– 18 –

C.

Section 150’s text makes clear that “the performance of the Interstate
System . . . [and] the National Highway System” focuses on the system’s
effectiveness in facilitating travel, commerce, and national defense—not
the environmental performance of vehicles using that system.

The Court’s task is to determine the scope of Section 150’s authorized performance
measures. In doing so, the Court’s analysis begins with the statute’s plain language. “In
matters of statutory interpretation, text is always the alpha.” In re DeBerry, 945 F.3d 943,
947 (5th Cir. 2019); see also United States v. Koutsostamatis, 956 F.3d 301, 306 (5th Cir. 2020)
(“In statutory interpretation, we have three obligations: ‘(1) Read the statute; (2) read the
statute; (3) read the statute!’” (quoting Henry J. Friendly, Benchmarks 202 (1967))). As a
result, the Court must determine whether “measures for [s]tates to use to assess . . . the
performance of the Interstate System . . . [and] the National Highway System” may
appropriately include measures regarding GHG emissions from vehicles using the
highways. See 23 U.S.C. § 150(c)(3)(A)(ii)(IV)–(V). In Texas’s view, “performance,” by its
plain language, cannot authorize the GHG emissions measure. See Dkt. No. 19 at 18–22.
The DOT, in contrast, argues a more expansive reading and asserts that “performance”
encompasses the highway systems’ environmental performance, including the GHG
emissions from vehicles using the systems. See Dkt. No. 25 at 15–22.
After carefully examining the statutory language and the parties’ arguments, the
Court concludes that the relevant statutory provisions do not authorize the DOT’s GHG
emissions measure. Four reasons support this conclusion. First, the key terms’ definitions
focus on the infrastructure’s effectiveness at achieving its purposes and not on the
resolve whether the issue presented constitutes a “major question.” If the doctrine applied, given its
requirement of “clear congressional authorization,” see West Virginia, 597 U.S. at 732, the Court’s
conclusion would be especially apparent.

– 19 –

environmental impact of vehicles using the infrastructure. Second, all of the related
performance measures in Section 150(c)(3) focus on physical infrastructure, which makes it
less likely that the DOT’s broad interpretation is accurate. Third, the DOT’s proposed
interpretation would render other portions of the statute superfluous. And fourth, Section
150(b)’s list of—and language related to—the national goals of the federal-aid highway
program indicate that “performance” of the system does not include environmental
performance. Thus, the statutory text demonstrates that “measures . . . to assess . . . the
performance of the Interstate System . . . [and] the National Highway System” do not
include GHG emissions from vehicles using the systems.
i.

The definitions of “performance,” “National Highway System,”
and “Interstate System” do not encompass the environmental
impact of vehicles.

Section 150 does not define “performance,” nor does it point to a particular
provision elsewhere in the code that does. See 23 U.S.C. § 150. Title 23 does contain a
definitions provision, but that section does not define “performance.” See 23 U.S.C. § 101.
Where Congress does not define a term within a statute, a court should “interpret the words
consistent with their ordinary meaning at the time Congress enacted the statute.” Wis. Cent.
Ltd. v. United States, 585 U.S. 274, 277 (2018) (cleaned up) (quoting Perrin v. United States,
444 U.S. 37, 42 (1979)).
Heeding that advice, the Court will look to a dictionary definition of “performance”
at the time of statutory enactment. See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560,
566–67 (2012) (noting that “[w]hen a term goes undefined in a statute, [a court should] give
the term its ordinary meaning,” which may be discerned from dictionaries in use at the time
of enactment). Section 150 is a relatively recent statute—its first version became law in

– 20 –

2012, and it was subsequently amended in 2015. See 88 Fed. Reg. at 85365 (describing the
history of Section 150). 12 At the time of the statute’s enactment, the dictionary definition of
“performance” was, in relevant part, “the competence or effectiveness of a person or thing
in performing an action; spec. the capabilities, productivity, or success of a machine,
product, or person when measured against a standard.” 13 Performance, Oxford English
Dictionary, https://perma.cc/6VPX-2JLS (last visited Mar. 26, 2024). The term focuses on
an identified object’s or person’s capability. See id. Applying the definition to the statute at
issue, Congress authorized the DOT to create a measure to assess “the [competence or
effectiveness]” of the identified objects—the Interstate System and National Highway
System.
Because the DOT may properly measure the competence or effectiveness of the
Interstate and National Highway Systems, the Court’s analysis likewise depends on the
scope of the latter terms. Thankfully, Congress provided precise definitions for “Interstate
System,” “National Highway System,” and “Highway.” 23 U.S.C. § 101(11), (12), (16).
As detailed below, the critical point is that each definition relates to transportation
infrastructure and describes their purposes as facilitating travel, commerce, and national
defense. See id.; see also id. § 103(b) (defining “National Highway System”), (c) (defining
“Interstate System”).
Title 23’s definition of “highway” includes a long list of transportation infrastructure,
including:

12

See also supra note 4.

Given the relative recency of Section 150’s enactment, the Court uses a modern dictionary. See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 419, 423 (2012).
Further, neither party has directed the Court to a particular definition that would contradict this
approach.

13

– 21 –

(A) a road, street, and parkway;
(B) a right-of-way, bridge, railroad-highway crossing, tunnel, drainage structure
including public roads on dams, sign, guardrail, and protective structure, in
connection with a highway; and
(C) a portion of any interstate or international bridge or tunnel and the approaches
thereto, . . . including such facilities as may be required by the United States
Customs and Immigration Services in connection with the operation of an
international bridge or tunnel.
Id. § 101(11).
“National Highway System” is defined as “the Federal-aid highway system
described in [S]ection 103(b).” Id. § 101(16). In turn, Section 103(b) defines “National
Highway System” as “the highway routes and connections to transportation facilities” that
serve three purposes—none of which relate to environmental emissions or impact:
(A) serve major population centers, international border crossings, ports, airports,
public transportation facilities, and other intermodal transportation facilities and
other major travel destinations;
(B) meet national defense requirements; and
(C) serve interstate and interregional travel and commerce.
Id. § 103(b)(1). The definition specifies that various components are included in the
National Highway System, like “urban and rural principal arterial routes.” Id. § 103(b)(2).
Unsurprisingly, “Interstate System” is likewise defined as certain transportation
infrastructure and does not include environmental emissions or impact. The term “means
the Dwight D. Eisenhower National System of Interstate and Defense Highways described
in [S]ection 103(c).” Id. § 101(12). And Section 103(c) specifies that the Interstate System
“consists of highways designed, located, and selected in accordance with this paragraph.”
Id. § 103(c)(1)(A). Moreover, the interstate highways must be located to fulfill three
purposes:

– 22 –

(i) to connect by routes, as direct as practicable, the principal metropolitan areas,
cities, and industrial centers;
(ii) to serve the national defense; and
(iii) to the maximum extent practicable, to connect at suitable border points with
routes of continental importance in Canada and Mexico.
Id. § 103(c)(1)(C).
Synthesizing the various definitions brings into focus the proper scope of Section
150’s congressional authorization for the DOT to create “measures . . . to assess . . . the
performance of the Interstate System . . . [and] the National Highway System.” The
performance of these transportation systems turns on their “competence or effectiveness” at
achieving the specified aims of each of these roadways. For the National Highway System’s
performance, the DOT may establish measures to assess the “competence or effectiveness”
of “the highway routes[’] and connections[’]” ability to “serve major population centers,”
“meet national defense requirements,” and “serve interstate and interregional travel and
commerce.” Id. §§ 101(16); 103(b); 150(c)(3). For the Interstate System’s performance, the
DOT may establish measures to assess the “competence or effectiveness” of the interstate
highways’ ability to directly connect “metropolitan areas, cities, and industrial centers,”
“serve the national defense,” and “connect at suitable border points with routes of
continental importance in Canada and Mexico.” Id. §§ 101(12); 103(c); 150(c)(3).
Nothing within these definitions or the statutory goals of the National Highway
System or Interstate System indicate that GHG emissions are a relevant metric. The focus
is on how well the highways, routes, and connections within the systems are achieving their
goals of facilitating travel, commerce, and the national defense. The statute’s plain
language does not include within the scope of the National Highway System or the

– 23 –

Interstate System the environmental performance or impact of the vehicles that use those
systems. As a result, the very definitions of the relevant terms undercut the DOT’s
argument and proposed expansive definition, and the statute does not authorize the GHG
emissions measure.
ii.

Section 150(c)(3)’s remaining performance measures relate to
physical infrastructure, further indicating that these measures focus
on the highways’ effectiveness, not the vehicles’ environmental
impact.

When interpreting words with disputed meanings, courts should consider words in
light of the terms surrounding them. See Dubin v. United States, 599 U.S. 110, 118 (2023)
(citing Leocal v. Ashcroft, 543 U.S. 1, 9 (2004)). After all, “a word is known by the company
it keeps.” Yates v. United States, 574 U.S. 528, 543–44 (2015) (plurality opinion). Thus,
“[w]hen several nouns or verbs or adjectives or adverbs—any words—are associated in a
context suggesting that the words have something in common, they should be assigned a
permissible meaning that makes them similar.” Antonin Scalia & Bryan A. Garner, Reading
Law: The Interpretation of Legal Texts 195 (2012). And, relevant in this case, “[t]he canon
especially holds that ‘words grouped in a list should be given related meanings.’” Id. at 195
& n.2 (quoting Third Nat’l Bank in Nashville v. Impac Ltd., 432 U.S. 312, 322 (1977)).
Here, the company “performance of the Interstate System . . . [and] the National
Highway System” keeps is uniformly focused on the physical condition of transportation
infrastructure. The relevant subsection provides that the DOT shall establish measures to
assess:
(I)

the condition of pavements on the Interstate [S]ystem;

(II) the condition of pavements on the National Highway System (excluding the
Interstate);

– 24 –

(III) the condition of bridges on the National Highway System;
(IV) the performance of the Interstate System; and
(V) the performance of the National Highway System (excluding the Interstate
System)[.]
23 U.S.C. § 150(c)(3)(A)(ii).
The clear focus of Section 150(c)(3)(A)(ii) on the physical structures of the interstate
and national-highway systems demonstrates that “performance” is also focused on those
physical structures. Congress authorized the DOT to measure the system’s physical
infrastructure itself and how well that physical infrastructure meets its objectives. Three of
the five measures relate expressly to physical conditions—the condition of interstate
pavement, the condition of highway pavement, and the condition of bridges. These are
tactile, material items. Given these closely associated measurements, the two immediately
following measurements—interstate and national-highway performance—are likewise
limited to the systems’ physical infrastructure and its ability to meet its objectives.
The DOT’s expansive reading of “performance” to include CO2 emissions from
vehicles ignores its context in this list of tactile measurements, which favors a more confined
reading. Unlike interpreting the list of items in relation to one another, the DOT’s proposed
interpretation would “generate confusion or unpredictability,” like a list of “fire-engine red,
light pink, maroon, navy blue, or colors that otherwise involve shades of red.” Cf. Johnson v.
United States, 576 U.S. 591, 603 (2015) (emphasis in original) (quotation omitted).
Construing “performance” following the specified “condition of pavements” and “bridges”
as pertaining to the performance of the physical structure maintains the unified nature of the
statute. But if “performance” instead encompasses things as vast as the GHG emissions of
vehicles using the interstate and national-highway systems, the provision’s scope is

– 25 –

unfettered—it introduces navy blue into a list otherwise clearly constrained to ordinary reds.
See Johnson, 576 U.S. at 603. Given all these considerations, the Court concludes that the
measurements are associated with one another and should be interpreted harmoniously and
in relation to one another. See Yates, 574 U.S. at 543–44 (plurality opinion).
That understanding is confirmed when examining the rest of the statute and related
statutes because “condition” and “performance” are often grouped together. See 23 U.S.C.
§ 150(e)(1) (requiring that states report on “the condition and performance of the National
Highway System in the [s]tate”); id. § 119(b)(1) (stating that a purpose of the NHPP is “to
provide support for the condition and performance of the National Highway System”); id.
§ 119(e)(2) (requiring a state’s asset-management plan to include strategies “leading to a
program of projects that would make progress toward achievement of the [s]tate targets for
asset condition and performance of the National Highway System”). This frequent pairing
further demonstrates that “condition” and “performance” are related and bear on each
other’s meaning within Section 150. See id. §§ 119, 150. Because “condition” is focused on
the physical attributes of the interstate and national-highway systems, the text indicates that
“performance” is likewise tied to the physical infrastructure. See id.
Further, this interpretation avoids the contradiction with the statute’s express
limitation on the number of authorized performance measures that would result from the
DOT’s position. “The provisions of a text should be interpreted in a way that renders them
compatible, not contradictory.” Scalia & Garner, supra, at 180. Section 150 speaks in
mandatory, limiting language in providing that the DOT “Secretary shall . . . limit
performance measures only to those described in this subsection.” 23 U.S.C. § 150(c)(2)(C).
But the DOT’s view would untether the limitation from the interstate and national-highway

– 26 –

systems’ infrastructure, instead permitting the DOT to require states to measure anything
that happens to use or relate in any way to those systems. And the DOT does not dispute
this expansive view. In the 2023 Rule, the DOT notes that, while its authority to impose
“performance” measures is not unlimited, the only limitation is the scope of the interstate
and national-highway systems. See 88 Fed. Reg. at 85367. In other words, the only limit on
permissible performance measures is that they can only apply to certain roads and things
coming into contact with or relating to those roads—not that the measures themselves are
limited to certain subjects. See id. Given the expansive systems at issue and the number of
things and people that relate in some way to them, this is no limit at all. The agency’s
interpretation would figuratively open the floodgates and effectively eliminate the strict limit
that Congress placed on the agency’s authority to promulgate measures. See 23 U.S.C.
§ 150(c)(2)(C). But once the Court interprets the relevant terms in relation to the associated
list, the contradiction falls away.
iii.

The DOT’s proposed interpretation would render other portions of
the statute superfluous.

Although the analysis thus far has focused on Section 150(c)(3)’s performance
measures, the statute mandates measures for three additional topics—highway safety,
congestion mitigation and air quality, and national freight movement. 23 U.S.C.
§ 150(c)(4)–(6). And, regarding air quality, Congress specifically directs the DOT to
establish measures relating to “on-road mobile source emissions.” Id. § 150(c)(5). The
plaintiffs argue that this provision cabins the DOT’s authority to establish performance
measures to ozone, carbon monoxide, and particulate matter through its tie to Section 149.
See Dkt. No. 19 at 20. The defendants counter that the provision does not prohibit the DOT
from otherwise adopting other measures to combat CO2 emissions. See Dkt. No. 25 at 20.

– 27 –

The statutory text and settled canons of statutory interpretation support the plaintiffs’
argument.
Section 150(c)(5) provides that, “[f]or the purpose of carrying out [S]ection 149, the
Secretary shall establish measures for [s]tates to use to assess . . . on-road mobile source
emissions.” 23 U.S.C. § 150(c)(5). Section 149 codifies the “congestion mitigation and air
quality improvement program” (CMAQ), which allows states to obligate funds apportioned
to it under Title 23 to certain programs that relate to road congestion and air quality. See id.
§ 149. Under Section 149, the states are authorized to regulate on-road mobile source
emissions of ozone, carbon monoxide, and particulate matter. See id. § 149(b). That section
does not authorize programs to address CO2 emissions, which the parties do not dispute.
See id.
“When presented with two plausible readings of a regulatory text, this court
common-sensically . . . prefers the reading that does not render portions of that text
superfluous.” Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 399 (5th Cir. 2014). As Justice
Scalia and Bryan Garner explain: “If possible, every word and every provision is to be given
effect (verba cum effectu sunt accipienda). None should be ignored. None should needlessly be
given an interpretation that causes it to duplicate another provision or to have no
consequence.” Scalia & Garner, supra, at 174 (footnote omitted).
Here, the 2023 Rule seeks to have states establish targets for and measure GHG
emissions generated by “on-road mobile sources.” 88 Fed. Reg. at 85364. But instead of
ozone, carbon monoxide, and particulate matter, it seeks to regulate CO2 emissions. See id.
In citing to Section 150(c)(3)(A)(ii)(IV)–(V), the agency claims another source of authority
to regulate on-road mobile source emissions. Compare 23 U.S.C. § 150(c)(3)(A)(ii)(IV)–(V),

– 28 –

with id. § 150(c)(5). In effect, the DOT claims that both sections authorize the regulation of
on-road mobile source emissions. But if air quality and “on-road mobile source emissions”
were contemplated by Congress when it used “performance” in Section 150(c)(3)(A)(ii),
then the authorization found in Section 150(c)(5) would be superfluous. If “performance”
included the broad authority to promulgate measures related to on-road mobile source
emissions, Congress would not have needed to separately authorize such measures later in
the statute. 14 See id. § 150(c). The DOT’s “reading is thus at odds with one of the most
basic interpretive canons, that a statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley
v. United States, 556 U.S. 303, 314 (2009) (cleaned up) (quoting Hibbs v. Winn, 542 U.S. 88,
101 (2004)). Congress had no need to duplicate the provision of this authority in two
separate subsections, and it is especially unlikely that it created an expansive, duplicative
authorization after limiting the universe of possible measures “only to those described in
this subsection.” 23 U.S.C. § 150(c)(2)(C).
Moreover, Section 150(c)(5)’s on-road mobile source emission standard is precisely
drafted to cover only certain pollutants, and it excludes CO2. See id. § 149(b). Nothing in
the statute’s text indicates that, despite the precision in (c)(5) and the limitation of
permissible measures in (c)(2), Congress wanted the DOT to go beyond (c)(5) and create

The Court recognizes that CMAQ might cover a “transportation project or program” that is not
part of the Interstate System or National Highway System. See 23 U.S.C. § 149(b). For such a
project, an on-road mobile source emissions measure might be promulgated under Section 150(c)(5)
that would not fit under (c)(3). However, given the breadth of the definitions of the Interstate
System and National Highway System, see supra Section 4.C.i, there is undoubtedly a very large
overlap between those systems and any project covered by CMAQ, rendering (c)(5) superfluous.
For that reason, and for the other textual and contextual reasons detailed in this order, this aspect of
CMAQ does not materially alter the Court’s analysis.
14

– 29 –

additional measures for on-road source emissions based on the more general authorization
related to “the performance of the Interstate System . . . [and] the National Highway
System.” Additionally, the agency fails to point to how, as a matter of logic, its
interpretation of “performance” could encompass on-road mobile source emissions related
to CO2 but not carbon monoxide. See generally 88 Fed. Reg. at 85364. Congress chose to
use “on-road mobile source emissions” in one place—which authorized measures relating to
ozone, carbon monoxide, and particulate matter. See 23 U.S.C. § 150(c)(5). The Court will
not interpret (c)(3) in a way that renders (c)(5) superfluous. 15
And to the extent the DOT asserts that, despite the duplication in (c)(3) and (c)(5),
Congress could nevertheless detail the air-quality program specified in subsection (c)(5), that
assertion runs roughshod into the negative-implication canon. That canon teaches that
“[t]he expression of one thing implies the exclusion of others.” Scalia & Garner, supra, at
107. Congress specifically addressed an air-quality program and on-road mobile source
emissions in (c)(5), and no party argues that this subsection can authorize the GHG

Relatedly, the plaintiffs argue that legislative history provides support for their position that
Congress deliberately chose to exclude performance measures related to CO2 emissions. See Dkt.
No. 19 at 18–19. Because of the limited analytical benefit derived from legislative history, the Court
finds that argument unconvincing. After all,
15

Apart from th[e] political problem [that the legislature makes law only by voting on
proposed statutes] and a torrent of practical problems . . . the use of legislative history
poses a major theoretical problem: It assumes that what [a court is] looking for is the
intent of the legislature rather than the meaning of the statutory text. That puts things
backwards. To be “a government of laws, not of men” is to be governed by what the
laws say, and not by what the people who drafted the laws intended.
Scalia & Garner, supra, at 375 (emphasis in original). As stated more succinctly by Justice Holmes:
“We do not inquire what the legislature meant; we ask only what the statute means.” Oliver
Wendell Holmes, The Theory of Legal Interpretation, 12 Harv. L. Rev. 417, 419 (1899) (quoted with
approval in Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 397 (1951) (Jackson, J.,
concurring)).

– 30 –

emissions measure. See generally Dkt. Nos. 19; 25. The implication is clear. Congress’s
choice to address emissions in (c)(5), and to do so in a way that cannot authorize the 2023
Rule, implies the exclusion of other on-road mobile source emission measurements,
including GHG emissions. See Bartenwerfer v. Buckley, 598 U.S. 69, 78 (2023) (“‘[W]hen
Congress includes particular language in one section of a statute but omits it in another
section of the same [a]ct,’ [courts] generally take the choice to be deliberate.” (quoting
Badgerow v. Walters, 596 U.S. 1, 11 (2022))); see also Dkt. No. 28 at 10–11.
In an attempt to establish otherwise, the defendants confuse the source of an
agency’s power to act. They assert that the 2023 Rule is justified despite Section 150(c)(5)’s
specific mention of on-road emissions because “Congress did not include any language
prohibiting [the DOT] from establishing other measures related to emissions for the
NHPP.” Dkt. No. 25 at 20. This gets things backwards. An agency must have statutory
authorization to enact a rule; the absence of a statutory prohibition does not indicate that
such authority has been given. See City of Arlington, 569 U.S. at 297; see also VanDerStok, 86
F.4th at 187. Thus, the lack of a statutory prohibition provides no support for the
defendants’ position.
iv.

Section 150(b)’s list of national goals indicates that “performance”
of the interstate and national-highway systems does not include
environmental performance.

The DOT relies heavily on the national goals articulated in Section 150(b) to justify
its interpretation of “performance”—particularly the goal of environmental sustainability.
See Dkt. No. 25 at 15–19. The plain language of the provision and the statutory structure,
however, undermine the agency’s interpretation. While environmental sustainability is
undoubtedly a statutory goal, it does not follow that, as a result, measuring the interstate

– 31 –

and national-highway systems’ “performance” includes the GHG emissions measure. To
the contrary, environment-related measures are included in Section 150(c)(5), and
environmental sustainability is also addressed in various other sections of the Title 23.
Thus, the DOT cannot properly use the broad national goal mentioned in Section 150(b) to
shoehorn the GHG emissions measure into Section 150(c)’s limited, specific list of
performance measures that the states must track and report.
Turning to the goals themselves, the Court recognizes that the NHPP aims to
“provide a means to the most efficient investment of [f]ederal transportation funds by
refocusing [the program] on national transportation goals.” 23 U.S.C. § 150(a). These
goals include (1) safety; (2) infrastructure condition; (3) congestion reduction; (4) system
reliability; (5) freight movement and economic vitality; (6) environmental sustainability; and
(7) reduced project delivery delays. Id. § 150(b). Critically here, the environmentalsustainability goal is “[t]o enhance the performance of the transportation system while
protecting and enhancing the natural environment.” Id. § 150(b)(6).
Contrary to the DOT’s contention, the environmental-sustainability goal does not
authorize the 2023 Rule for three reasons. First, and most simply, neither GHG emissions
nor environmental sustainability more broadly is included as one of the categories of
performance measures in Section 150(c)(3). Those five measures focus on the condition of
pavements, the condition of bridges, and the competence or effectiveness of the interstate
and national-highway systems. Id. § 150(c)(3)(A)(ii)(I)–(V). In contrast, the environmentrelated goal relates to the measures detailed in (c)(5)’s air-quality program. Similarly, other
national goals have related and easily identified measures. The safety goal corresponds to
(c)(4)’s “[h]ighway safety improvement program.” The infrastructure-condition and system-

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reliability goals correspond to (c)(3)’s infrastructure and efficiency-related measures.
Congestion reduction corresponds to (c)(5)’s “[c]ongestion mitigation” program. The
freight-movement goal corresponds to (c)(6)’s “[n]ational freight movement” measures.
But not every goal appears to have a corresponding measure. Specifically, the goal
of reducing project-delivery delays seeks to reduce costs of federal highway projects by
“eliminating delays in the project development and delivery process, including reducing
regulatory burdens and improving agencies’ work practices.” Id. § 150(b)(7). Despite this
goal, none of the specified performance measures in subsection (c) address costs or project
delays, which indicates that the states do not necessarily need to measure and report on
every aspect of the national goals. Because the environmental-sustainability goal is not
included in (c)(3)’s authorized measures, that provision cannot authorize the GHG
emissions measure.
Second, the language of the environmental-sustainability goal itself undermines the
DOT’s position that it may be measured as an aspect of “the performance of the Interstate
System . . . [and] the National Highway System.” Again, the national goal is to “enhance
the performance of the transportation system while protecting and enhancing the natural
environment.” Id. § 150(b)(6). Pared down, the goal is to do one thing (enhance system
performance) while also doing another thing (enhance the environment). By separating the
two aspirations with the conjunction “while,” the statutory language distinguishes “the
performance of the transportation system” from “protecting and enhancing the natural
environment.” See id. Given that the Court must “give effect to every word that Congress
used in the statute,” Lowe v. SEC, 472 U.S. 181, 207 n.53 (1985), the Court concludes that,
within the context of Section 150, the “performance of the transportation system” is distinct

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from “protecting and enhancing the natural environment.” See 23 U.S.C. § 150(b). To
include “protecting and enhancing the natural environment” in the definition of “the
performance of the transportation system”—and by extension, the performance of the
Interstate System and the National Highway System—would render portions of the
environmental-sustainability goal’s provision redundant. See id. If the DOT’s interpretation
were correct, the national goal could be restated as “to protect and enhance the natural
environment while protecting and enhancing the natural environment.” Adopting such a
nonsensical interpretation would create a redundancy in the statute—something precedent
cautions the Court against. See Williams v. Taylor, 529 U.S. 362, 404 (2000) (“It is, however,
a cardinal principle of statutory construction that [a court] must ‘give effect, if possible, to
every clause and word of a statute.’” (quoting United States v. Menasche, 348 U.S. 528,
538–39 (1955))). Nor can the Court assume that “performance” as used in Section 150(b)(6)
is different than “performance” as used within Section 150(c)(3)(A)(ii) absent some evidence
in the text supporting different readings. See Mohasco Corp. v. Silver, 447 U.S. 807, 826
(1980) (concluding that a court cannot unreasonably give a word a different meaning across
the same section of a statute).
Third, the environmental-sustainability goal is more obviously and naturally
accounted for in other portions of the statute. As discussed elsewhere in this Order, other
portions of the statutory scheme shed light on how programs authorized under Section 119,
Section 150, and elsewhere in Title 23 further environmental sustainability. See supra
Section 4.C.iii; infra Section 4.D. For instance, Section 119 allows funding for specific
projects that support the goal of protecting and enhancing the natural environment. See, e.g.,
23 U.S.C. § 119(d)(2)(M) (authorizing funding for projects that accomplish

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“[e]nvironmental restoration and pollution abatement in accordance with [S]ection 328”).
And within Section 150 itself, subsection (c)(5) allows the defendants to promulgate
performance measures related to traffic congestion and non-CO2 types of on-road mobile
source emissions. See id. §§ 149(b), 150(c)(5). Each of those sections supports the national
goal of environmental sustainability.
Given that (1) environmental measures are not included in Section 150(c)(3)’s
performance measures; (2) the language of the environment-sustainability goal contrasts
system performance with environmental enhancement; and (3) environmental sustainability
is expressly accounted for in other portions of Title 23, (c)(3)’s infrastructure-specific
measures do not include measures of environmental performance.
D.

Section 150’s statutory context demonstrates that “performance” of the
interstate and national-highway systems is not broadly defined to include
the GHG emissions from cars using the system.

In light of the above analysis, the plain language of Section 150 alone demonstrates
that the 2023 Rule exceeded the DOT’s authority. If any doubt remains, however, the
broader statutory context proves the same. “Context is a primary determinant of meaning.”
Scalia & Garner, supra, at 167; see also Graham Cnty. Soil & Water Conservation Dist., 559 U.S.
at 289–90. Because a statute “typically contains many interrelated parts that make up the
whole,” “[t]he entirety of the document thus provides the context for each of its parts.”
Scalia & Garner, supra, at 167.
Here, the context reveals that Section 150—and the performance measures at issue—
are connected to Section 119. Congress instructed in Section 150 that (c)(3)’s performance
measures exist expressly “for the purpose of carrying out [S]ection 119.” 23 U.S.C.
§ 150(c)(3)(A). Thus, Section 119 and its purposes aid the Court in determining the scope of

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Section 150’s permissible performance measures, and they provide further support for the
Court’s conclusion.
i.

Section 119(b)’s purposes distinguish between the highway system’s
performance and the system’s resilience to avoid environmental
disasters.

Section 119 requires the DOT to implement the NHPP and enumerates four
purposes for that program. 23 U.S.C. § 119(b). Specifically, the statute provides that “[t]he
purposes of the national highway performance program” are:
(1) to provide support for the condition and performance of the National
Highway System;
(2) to provide support for the construction of new facilities on the National
Highway System;
(3) to ensure that investments of Federal-aid funds in highway construction
are directed to support progress toward the achievement of performance
targets established in an asset management plan of a [s]tate for the
National Highway System; and
(4) to provide support for activities to increase the resiliency of the National
Highway System to mitigate the cost of damages from sea level rise,
extreme weather events, flooding, wildfires, or other natural disasters.
Id.
Two aspects of these purposes aid the Court. First, the statute lists “performance of
the National Highway System” as a separate purpose from “mitigat[ing] the cost of
damages from” natural disasters. Cf. id. § 119(b)(1), (b)(4). As distinct purposes using
different terminology, the Court construes them as having independent meaning. See
Williams, 529 U.S. at 404. If the “performance” of the system included its resiliency to
mitigate the cost from environmental impacts, then (b)(4) would be redundant. Once again,
the Court will not interpret “performance” in a way that renders other portions of the statute
superfluous. Exelon Wind 1, L.L.C., 766 F.3d at 399. This is yet another indicator that the

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“performance” of the highway system means the efficiency of the infrastructure itself and
not its “environmental performance.”
Second, the statutory purpose related to natural disasters demonstrates that Section
119’s environmental focus is increasing the system’s “resiliency . . . to mitigate the cost of
damages” resulting from potential disasters—not the potential underlying cause of those
disasters. 23 U.S.C. § 119(b)(4). Congress seeks to support activities that make the
National Highway System able to withstand or recover quickly from things like sea-level
rise, extreme weather, flooding, and wildfires. See id. That is, the purpose is not about
mitigating the causes of the damage to the system, but about mitigating the damage to the
system. See id. Further, when damage does occur, the provision is directed at ensuring that
the system may survive that damage. See id. But environmental inputs, like vehicle
emissions, are omitted from the list, and it is unclear how measuring GHG emissions could
make the system itself more resilient to natural disasters when they occur. Thus, Section
119(b)(4) is yet another indicator that GHG emissions are not properly included in Section
150(c)(3)’s scope.
ii.

In defining eligible projects, Section 119(d)(1)(A)’s list of
“performance goals” focuses on the infrastructure’s capabilities; it
does not mention environmental sustainability.

As detailed in Part 1, to be eligible for NHPP funding, a project must meet certain
criteria. Id. § 119(d). First, funds “may be obligated only for a project on an eligible facility
that” supports progress in achieving the national performance goals for improving
“infrastructure condition, safety, congestion reduction, system reliability, or freight
movement.” Id. § 119(d)(1)(A). Second, the project must be “consistent with [S]ections 134

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and 135.” 16 Id. § 119(d)(1)(B). Third, the project must be for one or more defined purposes.
Id. § 119(d)(2).
It is telling that, in defining which projects are eligible for funding, Section 119’s
“national performance goals” do not mention environmental sustainability. Each of the
goals—infrastructure condition, safety, reducing congestion, system reliability, and freight
movement—focuses on the system’s infrastructure and efficiency. These goals, which
Section 150(c)(3) exists to carry out, are consistent with the Court’s interpretation of
“performance of the Interstate System . . . [and] the National Highway System” as focusing
on the system’s physical condition and efficiency. And they undermine the DOT’s more
expansive interpretation to include “environmental performance.”

The Court notes that Sections 134 and 135 each contain provisions that require a state to assess the
environmental impact of its transportation planning. See, e.g., 23 U.S.C. § 134(a) (noting that “[i]t is
in the national interest” to “minimiz[e] transportation-related fuel consumption and air pollution”);
id. § 135(d)(1)(E) (noting that an aspect of a state’s plan should include “consideration and
implementation of projects” that “protect and enhance the environment”). While this language
requires states to consider the environmental impact of transportation decisions in their planning
processes, that consideration is wholly divorced from whether Section 150(c) authorizes a GHG
emissions measure. The performance goals in Section 119(d)(1)(A) exclude environmental
sustainability—so NHPP funding is not conditioned on a project accomplishing progress toward that
goal. And projects may of course be consistent with the planning requirements of Sections 134 and
135 without achieving progress towards an environmental-sustainability national goal. Finally, to
assert that the language in Sections 134 and 135 indicates that “performance” includes
“environmental performance” ignores the more relevant statutory language present in both Section
150 and Section 119. Finding authority to promulgate the GHG emissions measure in Sections 134
and 135—two sections removed from Section 150—would be the sort of “cryptic” authority that the
Supreme Court has viewed with suspicion. See Brown & Williamson Tobacco Corp., 529 U.S. at 160.
The defendants’ references to 23 U.S.C. § 101(b)(3)(G) for authorization fall into the same category.
See Dkt. No. 25 at 17; see also 23 U.S.C. § 101(b)(3)(G) (providing in a declaration of policy that
“transportation should play a significant role in promoting economic growth, improving the
environment, and sustaining the quality of life”).
16

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iii.

Section 119(d)(2)’s list of eligible project purposes specifies multiple
environmental purposes; none include GHG emission reduction.

Assuming that a project can meet the threshold eligibility requirements found in
Section 119(d)(1), Section 119(d)(2) enumerates a variety of purposes for which funds may
be directed. It includes 19 separate purposes for which funds may be authorized. Nine are
explicitly tied to the construction or maintenance of infrastructure on the National Highway
System, Interstate System, and related facilities. See id. § 119(d)(2)(A)–(C), (F)–(H), (L), (P),
(Q). Two more relate to the inspection of and the training of inspectors for the National
Highway System’s infrastructure. See id. § 119(d)(2)(D)–(E). Several more purposes relate
to safety and operations. See id. § 119(d)(2)(I)–(K), (S). Most relevant here, four of the
permissible purposes relate to the environment. See id. § 119(d)(2)(M)–(O), (R).
Like all the provisions found in Section 119(d)(2), those environmental provisions
only authorize funds for specific, narrow activities. Section 119(d)(2)(M) provides that
funds may be used towards “[e]nvironmental restoration and pollution abatement in
accordance with [S]ection 328.” Id. § 119(d)(2)(M). Section 328 provides for specific
projects related solely to “minimiz[ing] or mitigat[ing] the impacts of any transportation
project” funded by the NHPP. See id. § 328(a). Further, projects funded under subsection
(M) are only allowed “to address water pollution or environmental degradation caused
wholly or partially by a transportation facility.” Id. Section 119(d)(2)(N) provides that
funds may be used towards the “[c]ontrol of noxious weeds and aquatic noxious weeds and
establishment of native species in accordance with [S]ection 329.” Id. § 119(d)(2)(N).
Section 329, in turn, deals with protecting plant systems specifically “related to
transportation projects funded under this title.” Id. § 329(a). It further lists discrete activities
related to that goal that may be addressed through NHPP funding, such as the establishment

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of plants for the abatement of water runoff and the control or elimination of plants that
impede or impair a transportation system. See id. § 329(a)–(b). Section 119(d)(2)(O)
provides that funds may go towards “[e]nvironmental mitigation efforts related to projects
funded under this [S]ection, as described in [Section 119(g)].” Id. § 119(d)(2)(O). Section
119(g) allows funds for a variety of mitigation efforts, such as participating in mitigation
banking or contributions to statewide and regional efforts to conserve natural habitats and
wetlands. See generally id. § 119(g)(1)–(2). Section 119(d)(2)(R) permits funds to go towards
“[r]esiliency improvements on the National Highway System, including protective features
described in [Section 119(k)(2)].” Id. § 119(d)(2)(R). Section 119(k)(2) lists protective
features for which NHPP funds may be used, including things like “raising roadway
grades,” “stabilizing slide areas,” and “increasing the size or number of drainage
structures.” Id. § 119(k)(2).
What these environmentally related purposes all have in common is a strict
limitation on how NHPP funds may be used. Section 119(d)(2)(M) is strictly limited to
accomplishing the terms of Section 328. See id. §§ 119(d)(2)(M), 328. Section 119(d)(2)(N)
is likewise controlled by Section 329. See id. §§ 119(d)(2)(N), 329. Section 119(d)(2)(O) is
tied to the mitigation efforts described in Section 119(g)—which, while broad in nature, are
limited to reactive purposes, as demonstrated by the term “mitigation.” See id.
§ 119(d)(2)(O), (g)(1)–(2). Section 119(d)(2)(R) is limited to “resiliency” improvements,
which are tied to constructive or reconstructive efforts to protect infrastructure. See id.
§ 119(d)(2)(R), (k)(2). Thus, the funds could not properly apply towards the reduction of
GHG emissions.

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Further, the explicit enumeration of these provisions evince that Congress
specifically excluded other environmental purposes. See NLRB v. SW Gen., Inc., 580 U.S.
288, 302 (2017). Importantly, none of the provisions touch a subject even remotely related
to CO2 emissions by vehicles on the Interstate System or National Highway System. They
are each more limited in scope to particular aspects of environmental impacts of the
interstate and national-highway systems. The specific inclusion of these authorized
environmental purposes—and the omission of anything related to GHG emissions—further
weigh against adopting the DOT’s broad interpretation of “performance.”
* * *
In sum, the statutory text indicates at every turn that measuring the “performance of
the Interstate System . . . [and] the National Highway System” does not authorize measures
of environmental performance. The definitions of “performance,” “National Highway
System,” and “Interstate System” instruct that it is the roadways’ efficiency and reliability in
facilitating travel, commerce, and the national defense that may be measured. The
associated measures in Section 150(c)(3) support this conclusion by focusing on the systems’
physical infrastructure. The DOT’s position, in contrast, would render other portions of the
statute superfluous, and the national goal on which the DOT relies so heavily provides more
support for the plaintiffs’ position. Likewise, the statutory context consistently instructs the
Court to reject the DOT’s expansive interpretation. Thus, the Court concludes that the
DOT’s GHG emission measure is unauthorized by the statute. 17

In light of this conclusion, the Court need not, and does not, reach the plaintiffs’ remaining claims
that the 2023 Rule is arbitrary and capricious under the APA and also violates the Constitution’s
Spending Clause.
17

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5.

Remedy
Having concluded that the DOT promulgated the GHG emissions measure in excess

of its statutory authority, the Court now turns to the proper remedy. The plaintiffs ask the
Court to vacate the 2023 Rule. Dkt. No. 1 at 22. They defer to the Court as to whether the
remedy should be party-specific. Dkt. No. 30 at 14. The defendants argue that any relief
should be limited to the State of Texas. Dkt. No. 25 at 27. For the reasons described below
and in light of binding precedent, the Court remands the rule with vacatur, a remedy that
inherently sweeps broader than the parties.
A.

The Rule is vacated and remanded.

Under the APA, a court shall hold unlawful and set aside agency action that is in
excess of the statutory authority. 5 U.S.C. § 706(2). Section 706(2) goes “beyond the mere
non-enforcement remedies available to courts” and “empowers courts to set aside—i.e.,
formally nullify and revoke—an unlawful agency action.” Data Mktg. P’ship v. U.S. Dep’t of
Lab., 45 F.4th 846, 859 (5th Cir. 2022) (cleaned up) (quotation omitted). The 2023 Rule is
such an agency action. See 5 U.S.C. § 551(13).
When awarding relief under Section 706(2), the Court may fashion the remedy in
one of two ways: remand the rule with vacatur or remand the rule without vacatur. See
Texas v. United States, 50 F.4th 498, 529–30 (5th Cir. 2022). The default rule is to vacate and
remand the rule. See Data Mktg. P’Ship, 45 F.4th at 859. Remand without vacatur is an
exceptional remedy that is appropriate where “there is at least a serious possibility that the
agency will be able to substantiate its decision given an opportunity to do so.” See Texas v.
Biden, 10 F.4th 538, 560 (5th Cir. 2021) (quoting Tex. Ass’n of Mfrs. v. U.S. Consumer Prod.

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Safety Comm’n, 989 F.3d 368, 389 (5th Cir. 2021)); see Am. Bankers Ass’n v. Nat’l Credit Union
Admin., 934 F.3d 649, 674 (D.C. Cir. 2019).
When deciding whether vacatur is appropriate, a court should consider two factors.
First, the court should evaluate “the seriousness of the deficiencies of the action” or “how
likely it is the agency will be able to justify its decision on remand.” Texas, 50 F.4th at 529
(quoting United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019)).
Second, the court should assess “the disruptive consequences of vacatur.” Id. (quoting
United Steel, 925 F.3d at 1287). “A strong showing of one factor may obviate the need to
find a similar showing of the other.” Am. Bankers Ass’n, 934 F.3d at 674.
Here, the 2023 Rule was promulgated in excess of the agency’s statutory authority
and is therefore substantially deficient. See supra Section 4. Further, the defendants have
not explained how they would substantiate the 2023 Rule if given the opportunity to do so.
Without any such explanation, and in light of the 2023 Rule’s deficiencies, the Court finds it
unlikely that the defendants will be able to justify their decision on remand. See Texas, 10
F.4th at 560.
Further, there are no disruptive consequences that would support remand without
vacatur. As a preliminary matter, the defendants do not raise any arguments on this front,
other than noting that setting the rule aside would affect other court decisions currently
pending around the country. See Dkt. No. 25 at 27–29. But that argument is more relevant
to the scope of relief, discussed below. The Court notes that the 2023 Rule’s effective date
has been delayed several times, and the first reporting deadline is not until March 29, 2024.
See Dkt. No. 13 at 1. Thus, the Court cannot identify a disruptive effect that would be
caused by vacating the Rule. After all, the 2023 Rule is not functionally effective at this

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moment, and its predecessor has not been in effect since the 2018 repeal. Having
considered both the applicable factors, the Court concludes that remanding the Rule with
vacatur is appropriate.
B.

Fifth Circuit precedent provides that setting aside an unlawful agency
action under the APA nullifies and voids that action; thus, the Court does
not limit the vacatur to the plaintiffs.

Having determined what relief is appropriate, the Court now considers the scope of
relief. The defendants urge the Court to limit relief to the plaintiffs in this case. See Dkt.
No. 25 at 27–29. For support, they cite a host of authority regarding the propriety of
nationwide injunctions, see id. at 27–28, before addressing the scope of relief under the APA,
see id. at 28–29. Here, the plaintiffs have requested vacatur, not an injunction, so the
injunction-related case law misses the mark.
While injunctions can be narrowly tailored to the parties, vacatur “formally nullifies
and revokes an unlawful agency action.” Data Mktg. P’ship, 45 F.4th at 859 (cleaned up)
(quotation omitted); see also Vacate, Black’s Law Dictionary (11th ed. 2019) (“To nullify or
cancel; make void; invalidate.”); John Harrison, Vacatur of Rules under the Administrative
Procedure Act, 40 Yale J. on Reg. Bull. 119, 120 (2023) (“[V]acatur is inherently universal.”).
In other words, “[u]nlike an injunction, which merely blocks enforcement, vacatur unwinds
the challenged agency action.” Data Mktg. P’ship, 45 F.4th at 859 (quoting Driftless Area
Land Conservancy v. Valcq, 16 F.4th 508, 522 (7th Cir. 2021)). Vacatur therefore “erase[s]
[the agency action] from the books.” See United States v. Texas, 143 S. Ct. 1964, 1981 (2023)
(Gorsuch, J., concurring in the judgment). And, if erased from the books, this relief cannot
logically be limited to the plaintiffs—if the rule no longer exists, it does not exist at all. See
Data Mktg. P’ship, 45 F.4th at 859; Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir.

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1989). While this sweeping result has led some jurists to criticize the grant of such relief, see,
e.g., Texas, 143 S. Ct. at 1980–86 (Gorsuch, J., concurring in the judgment), this Court is
bound by Fifth Circuit precedent that has continually maintained that vacatur is “the
appropriate remedy” by “default.” Data Mktg. P’ship, 45 F.4th at 859; Cargill v. Garland, 57
F.4th 447, 472 (5th Cir. 2023) (en banc), cert. granted, 144 S. Ct. 374 (2023).
To be sure, vacatur’s status as the default rule does not mean the Court is without
discretion to choose “a more limited remedy” if appropriate. See Cargill, 57 F.4th at 472.
But a more limited remedy is not party-specific vacatur. It is instead some other kind of
remedy—“injunctive, declarative, or otherwise.” See id. The present predicament is that
there is no other clear, more limited remedy requested by the plaintiffs that the Court could
grant here that would redress the plaintiffs’ injury. See Dkt. No. 18 at 2. While the plaintiffs
previously sought injunctive relief, they withdrew that request before the defendants had an
opportunity to respond. Dkt. Nos. 9; 16. Of course, the Court has discretion in fashioning
relief, even if not requested by a party, Fed. R. Civ. P. 54(c), but that relief must have been
“tested adversarially, tried by consent, or at least developed with meaningful notice to the
defendant[s].” Peterson v. Bell Helicopter Textron, Inc., 806 F.3d 335, 340 (5th Cir. 2015);
Deanda v. Becerra, --- F.4th ----, No. 23-10159, 2024 WL 1059721, at *13 (5th Cir. Mar. 12,
2024). Several federal appellate courts have found it improper to use Rule 54(c) to grant
injunctive relief even when actually requested in the complaint if the plaintiff fails to pursue
an injunction throughout litigation. See id. at 341 (collecting cases). If those discretionbased injunctions were improper, it would seem odd that a sua sponte injunction where
none is requested would be a valid use of Rule 54(c). Even if the Court could issue a sua
sponte party-specific injunction here, it would have to act without the benefit of developed

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briefing on all four elements, in spite of the plaintiffs’ prior abandonment of their request for
such relief, and importantly, without the defendants having clear notice of such a possibility.
And, despite its scope, vacatur is often considered “a less drastic remedy” than an
injunction, so courts typically vacate rather than enjoin. Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139, 165–66 (2010).
As for the request for a declaratory judgment, Dkt. No. 18 at 2, given the timesensitive nature of the plaintiffs’ impending obligations under the Rule, adequate relief
requires an affirmative blockade of the agency’s action, not merely a defensive tool.
Moreover, courts in this circuit generally consider a declaratory judgment only after
addressing vacatur. E.g., D&B Boat Rentals, Inc. v. United States, 508 F. Supp. 3d 87, 101
(E.D. La. 2020); Texas v. United States, 606 F. Supp. 3d 437, 501–02 (S.D. Tex. 2022), rev’d
on other grounds, 143 S. Ct. 1964 (2023). This ordering makes sense given that the APA
directs that a “reviewing court shall . . . hold unlawful and set aside agency action”—which,
again, generally means vacate—while declaratory relief is instead equitable and
discretionary. See 5 U.S.C. § 706 (emphasis added); Data Mktg. P’ship, 45 F.4th at 859;
Rowan Cos. v. Griffin, 876 F.2d 26, 28 (5th Cir. 1989). And the defendants do not argue that
the Court should grant a declaratory judgment in lieu of vacatur. Dkt. No. 25 at 27–29. As
a result, based on the present record before the Court, there is no other more limited relief
available that would address the plaintiffs’ injuries that has been properly noticed to the
defendants. So, although courts can, in certain circumstances, choose a more limited
approach than vacatur, Cargill, 57 F.4th at 472, the Court concludes that doing so here
would be inappropriate.

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Accordingly, the Court concludes that the proper remedy here is vacatur, and, by
necessary implication, that means relief not limited to the plaintiffs. A remedy must be
tailored to redress the plaintiffs’ particular injury. Id. But the Court is not free to ignore the
Fifth Circuit’s precedent instructing that the precise remedy for the plaintiffs’ APA claim is
vacatur, particularly when, as here, no other suitable remedy is before the Court. 18 See Data
Mktg. P’ship, 45 F.4th at 859–60 (holding that the set-aside vacatur under Section 706(2)
nullifies and revokes unlawful agency action). The Fifth Circuit has repeatedly granted
vacatur without limiting such relief to the parties. See, e.g., Cmty. Fin. Servs. Ass’n of Am., Ltd.
v. CFPB, 51 F.4th 616, 623 (5th Cir. 2022), cert. granted, 143 S. Ct. 978 (2023); Sw. Elec.
Power Co. v. EPA, 920 F.3d 999, 1033 (5th Cir. 2019); Texas, 50 F.4th at 529–30. To the
extent courts tailor vacatur, those limits address the scope of the agency action that is
vacated, nullifying only those portions that are invalid. See Franciscan All., Inc. v. Azar, 414
F. Supp. 3d 928, 944–45 (N.D. Tex. 2019). Unsurprisingly, because party-specific vacatur

As the Court has already noted, members of the Supreme Court have questioned the validity of
non-party-specific relief such as vacatur. See Texas, 143 S. Ct. at 1980–86 (Gorsuch, J., concurring in
judgment). And there is ongoing scholarly debate on the subject, with some arguing that vacatur
under the APA is universal and others claiming that any relief should be limited in scope to only the
plaintiffs. Compare Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121 (2020), with
John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or
Other Universal Remedies, 37 Yale J. on Reg. Bull. 37 (2020), and Samuel L. Bray, Multiple Chancellors:
Reforming the National Injunction, 131 Harv. L. Rev. 417 (2017). However, because the Court cannot
ignore existing Fifth Circuit precedent on vacatur absent a Supreme Court decision overruling it, the
Court follows existing precedent in vacating the Rule without limitation to the plaintiffs.
18

The Court recognizes the weighty concerns raised by the defendants as to why relief not limited to
the parties should be disfavored. For one, there is ongoing litigation in another district where 21
states have challenged the same rule, creating the possibility of conflicting rulings. See Kentucky v.
Fed. Highway Admin., No. 5:23-cv-162-BJB (W.D. Ky. filed Dec. 21, 2023). Moreover, vacatur runs
contrary to the ordinary principle that relief is limited to what is necessary to redress the plaintiff’s
demonstrated harm. See Gill v. Whitford, 585 U.S. 48, 73 (2018). The Court does not grant this relief
lightly. But based on its understanding of precedent and the unique procedural posture at hand, the
Court sees no viable or appropriate alternative.

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runs contrary to the very nature of the relief, the defendants have cited no examples to the
contrary. See Dkt. No. 25 at 27–29. To vacate is to void. And the Court must do so here.
6.

Conclusion
“When a regulation attempts to override statutory text, the regulation loses every

time—regulations can’t punch holes in the rules Congress has laid down.” Djie v. Garland,
39 F.4th 280, 285 (5th Cir. 2022). That is what occurred here—the DOT’s 2023 Rule
attempts to override Section 150(c)(3)’s clear limitation of authorized performance measures
to those that track the physical condition and efficiency of the interstate and nationalhighway systems. If the people, through Congress, believe that the states should spend the
time and money necessary to measure and report GHG emissions and set declining
emission targets, they may do so by amending Section 150 or passing a new law. But an
agency cannot make this decision for the people. An agency can only do what the people
authorize it to do, and the plain language of Section 150(c)(3) and its related statutory
provisions demonstrate the DOT was not authorized to enact the 2023 Rule.
Given this reality, the Court grants the plaintiffs’ motion for summary judgment
(Dkt. No. 18) and denies the defendants’ cross-motion for summary judgment (Dkt. No.
24). Further, in light of relevant Fifth Circuit precedent, the Court determines that remand
with vacatur is the appropriate remedy. Therefore, the Court sets aside and vacates the
2023 Rule. The Court denies all other requested relief. Judgment, including a seven-day
administrative stay, will follow in a separate Order.

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So ordered on March 27, 2024.

_____________________________________
JAMES WESLEY HENDRIX
UNITED STATES DISTRICT JUDGE

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