Capito to challenge FHWA memo to ensure proper implementation of IIJA

U.S. Sen. Shelley Moore Capito (R-WV) said she will formally challenge a memorandum to states from the Federal Highway Administration (FHWA) in an effort to ensure implementation of the Infrastructure Investment and Jobs Act (IIJA) reflects congressional intent.

“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,” Sen. Capito said on Dec. 15.

Last week the Government Accountability Office (GAO) concluded that an FHWA memo it issued in December 2021 entitled “Policy on Using Bipartisan Infrastructure Law Resources to Build a Better America” is a rule for purposes of the Congressional Review Act. The memo, which sets out FHWA’s preferred projects for funding under the IIJA, troubled Sen. Capito, who submitted an inquiry in February to the GAO asking for it to determine whether the FHWA policy memo constituted a “rule.” 

“… 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,” Sen. Capito said.  

“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,” she said.

Sen. Capito serves as the ranking member of the Senate Environment and Public Works Committee.