WASHINGTON, D.C. – In response to a February 2022 inquiry from U.S. Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Senate Environment and Public Works (EPW) Committee, today the Government Accountability Office (GAO) concluded that a December 2021 memorandum from the Federal Highway Administration (FHWA) entitled “Policy on Using Bipartisan Infrastructure Law Resources to Build a Better America” is a rule, and therefore subject to the Congressional Review Act (CRA).

Ranking Member Capito announced her intent to challenge the rule through a CRA resolution of disapproval, issuing the below statement:

“Today, the GAO confirmed what we have been pointing out for the past year: in its December 2021 memo, the Federal Highway Administration went beyond simply restating existing legal requirements for states, it expressed a policy preference and took steps to implement that preference. The Infrastructure Investment and Jobs Act (IIJA) was crafted and negotiated in a purposeful way, but through memos and guidance documents issued to states the administration has since attempted to contradict the law and impose policies that were specifically left out of the law.

“I plan to introduce a Congressional Review Act resolution of disapproval to ensure the IIJA is implemented as written, our states have the flexibility we provided them, and we maximize the investments made in America’s highways, roads, and bridges.”


In February 2022, Ranking Member Capito and Senate Republican Leader Mitch McConnell (R-Ky.), sent a letter to governors across the country reaffirming their commitment to ensuring the proper implementation of the bipartisan IIJA in light of FHWA’s memorandum.

At a March 2022 hearing, Ranking Member Capito questioned U.S. Department of Transportation Secretary Pete Buttigieg about the FHWA memorandum and implementation of the IIJA, saying “I’m really troubled that a memo coming from your department has language in it that was rejected from the House bill—basically verbatim.”

In a September 2022 hearing, Ranking Member Capito questioned now-confirmed FHWA Administrator Shailen Bhatt about the need to implement the IIJA as written.

In October 2022, Ranking Member Capito led 26 of her colleagues in sending a letter to FHWA Deputy Administrator Stephanie Pollack voicing their strong opposition to the agency’s proposal to implement a greenhouse gas emissions performance measure on state departments of transportation and metropolitan planning organizations, despite having no authority from Congress to do so.

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