If you’re involved with any part of the transportation industry in the U.S., you have likely already read many news articles about the pending federal infrastructure bill. It’s currently going by several names, such as the Surface Transportation Reauthorization Act of 2021 and the Infrastructure Investment and Jobs Act (or the “IIJA”). Google the IIJA or STRA of 2021 and you’ll get a general overview about the spending allocations toward highway infrastructure (about $550B), Amtrak (about $66B), and broadband access (approximately $65B) to promote “digital equity.”
As they are wont to do, the different parties and different branches of government are touting their respective successes in the law’s draft language. According to the White House, this $550B investment is “once in a generation.” But liberals in the president’s own party are currently sponsoring $3.5T worth of additional infrastructure/social spending. Will that be a once-in-seven-generations investment? On the right side of the aisle, the IIJA includes some verbiage that promotes their priorities, including language that demands a “Study and Report by the Secretary [on] Costs due to the Revocation of the Permit for the Keystone XL Pipeline.” And on the left, the law is replete with attempts to address climate change.
There are amendments floating around and discussions being had amongst the Washington power brokers that portend changes to the IIJA before it hits the president’s desk in a few weeks.
So, while it is still in a draft stage and more changes will come, I read the IIJA (well, most of the 2,700+ pages), as well as many of the comments and blogs supplied by observers and industry specialists to craft my own perspective.
Allegedly, Ohio should receive about $11B toward infrastructure improvements and at least $100M will be available for broadband to each state. But as currently drafted, I did not see any funding allocated to specific Ohio infrastructure projects like the Brent Spence Bridge. Regardless, given the directives toward spending on bridges and Nationally Significant Freight and Highway Projects, I can only assume that Ohio representatives will be lobbying hard to get the $2.7B needed for that bridge and interchange improvement project funded from the IIJA bucket. There are, however, other curious and specific programs that may be of interest to businesses in Ohio beyond those focused on traditional capital projects for roads, bridges, utilities, and broadband.
Pilot Programs for All
The IIJA directs hundreds of millions of dollars to “pilot programs,” which are unusual or innovative programs that have some likelihood of success, but do not really fit in a traditional “infrastructure” system or may need to have some creative procurement involved to get the work done. A few examples include:
- $60M/year toward wildlife crossings, including studying the problem, making wildlife safety improvements to roadways, creating specific animal crossings and improving adjacent habitats;
- $10M/year toward the Prioritization Process Pilot Program, which will direct monies toward state planning agencies and MPOs to allow them to create systems to gather public input that will prioritize projects that benefit the area and community; and
- $30M/year toward planning and more than $60M/year toward construction for the “Reconnect Communities Pilot Program,” which will direct dollars to areas that have had urban interstates built between communities in an attempt to reconnect those communities with highway “caps” like the ones in downtown Columbus near the Convention Center or on the near-east side.
So “caps,” whether benefiting wildlife or urban neighborhoods, are “in.”
Bigger Small Businesses & DBEs
Congress confirmed its priority in sharing federal dollars and opportunities for small and disadvantaged businesses. 10% of the funds expended in the IIJA are supposed to go to these entities. And while the size of a small business can vary depending upon the type of business according to federal law, Congress did up the monetary value of a small business concern as applied to general DBE participation- from $23.98M in annual gross receipts over a three-year average to $26.29M.
The DBE program is not lightly emphasized in the IIJA, and our heavy highway contracting friends should keep in mind the recent guidance from ODOT on compliance with all the DBE regulations; especially on ODOT’s PN31. The IIJA places particular importance on the need for prompt payment, so expect Ohio’s FHWA and thus ODOT to focus on that requirement imposed by 49 CFR 26.29.
Resilient Roads Are a Thing Now
The IIJA includes more than 145 uses of the word “resilience.” In this context, Congress is directing focus on the issues of physical threats to the nation’s transportation infrastructure system largely through climate change. A new program called PROTECT (Promoting Resilient Operations for Transformative, Efficient, and Cost-saving Transportation) is now a federal law under 23 CFR 175 that will direct on average $275M/year for infrastructure to improve its resilience against major weather events (e.g., dams during hurricane Katrina).
Other climate-change-centric programs include a slew of new spending items, like:
- Section 11401: publicly accessible alternative fueling facilities like electric or hydrogen;
- Section 11402: reducing truck emissions at port facilities;
- Section 11403: the carbon reduction program;
- Section 11405: The PROTECT program as noted above; and
- Section 11406: The Healthy Streets program, see below.
Non-Traditional Infrastructure Projects
When one thinks of highways and bridges, asphalt, concrete, and steel come to mind. But this Congress wants its infrastructure to be both resilient and “healthy.” Thus, the IIJA will direct $100M/year to the Healthy Streets Program, which allows expenditures on: 1) “cool pavement”; 2) “porous pavements”; and 3) “expanded tree cover” in urban areas. These funds are also available to “nonprofit organizations working in coordination” with a government entity. In addition, $100M/year will be directed toward “Transportation Resilience and Adaptation Centers of Excellence,” which is a new federal program that will identify 10 Centers of Excellence that will help distribute the grants provided under the PROTECT program. Largely, these Centers will be studying climate change and the impacts it has on transportation infrastructure; then divvying out grants to improve that infrastructure.
Streets in the future will be resilient, healthy and also intelligent because $110M/year will go to intelligent transportation systems like the one being managed locally though “Smart Columbus“. These intellectually augmented roads will be infused with sensors that communicate with each other and vehicles making them highly intelligent indeed.
And while we pay for roads to be built and driven upon, we will also be paying to capture the carbon emitted by all those cars and trucks. Per Congress, about $150M/year will be spent on carbon capture technology programs, including storage of carbon and grants for clean energy, $2B/year for infrastructure to store carbon emissions, and $3.5B/year directed toward “direct air capture” of carbon dioxide programs.
Planet Earth’s atmosphere will be thanking Congress for the billions spent on cleaning it up and so will its troposphere, because $250M/year will be spent on natural resources infrastructure, just under $4B on wildfire risk reduction, and around $2B will go toward ecosystem restoration, including wetland development projects.
Finally, Congress dropped multiple “Miscellaneous” projects and requirements into the IIJA. A few that will require some infrastructure work or spending of research dollars include:
- Section 11502: Stopping Threats on Pedestrians (or instituting a bollard installation program) along sidewalks;
- Section 11504: Studying impacts on roads from self-driving vehicles;
- Section 14511: Investing in the Appalachian Regional Energy Hub Initiative, which will try to capture natural gases in the Appalachian region;
- Section 11510: The Cybersecurity Tool, which is a new cyber-coordinator program allowing the administrator of the Federal Highway Administration to develop tools to assist transportation authorities in protection against cyber incidents; and
- Pollinator-friendly investment practices on roadsides and highway rights-of-way, which will allow for grants for planting and seeding plants that are attractive to pollinators like butterflies and bees and to reduce mowing practices.
Other Changes to Federal Law
Section 24220, Advanced Impaired Driving Technology, is a somewhat controversial change in the federal code that is intended to prevent alcohol-impaired driving accidents. Under that section, to be implemented within three years, advanced drunk and impaired driving prevention technology must be standard equipment in all new passenger motor vehicles manufactured and sold in the U.S. MADD.org and Car and Driver have a few of these systems explained on their websites.
Another curious change is being made to the federal Manual on Uniform Traffic Control Devices (“MUTCD”), which had been statutorily created to “promote safety.” Now, in 2021, it will, by law, promote “the safety, inclusion, and mobility of all users.” As a professional engineer who spent the better part of his career dealing with safety issues in roadway design, construction, and often litigation, I’m really not sure what changes will come by adding “inclusion” in the MUTCD, but if it is consistent with other mandates from Washington, it will be expensive.
A New “Conflict” with a New-ish Section of the Ohio Revised Code
The Ohio General Assembly under R.C. 9.75 (circa 2016), and Ohio Supreme Court under City of Cleveland v. Ohio (2019), 157 Ohio St.3d 330, eliminated the opportunity for local governments to include local hiring preferences in their construction projects in Ohio. Congress, conversely, under the IIJA is encouraging those arrangements. Section 25019 of the law titled “Local Hiring Preference for Construction Jobs” directs that a recipient or sub-recipient (think ODOT or perhaps the City of Columbus) of a grant provided by the Secretary under title 23 or 49, United States Code, may implement a local or other geographical or economic hiring preference relating to the use of labor for construction of a project funded by the grant, including pre-hire agreements, subject to any applicable state and local laws, policies, and procedures.
Clearly the operative words in this paragraph are “may” and “subject to” and the IIJA does not change Ohio law. However, this directive from Washington certainly gives advocates and local governments who want to direct their tax dollars to their local workforce ammunition to argue that such terms should be allowed. The federal government is not shy when it wants to mandate something (federal preemption). It would not be a stretch for them to mandate such terms and conditions in the future if they find that directive could promote one of their priorities, like creating workforce opportunities in the urban sectors of the United States.
The IIJA is currently under construction. It is near completion and may be at the point of punch-out through amendments being completed by the various groups trying to get it done. The owner of this law will not just be the federal government, but also the taxpayers through the existing motor-fuel tax, fees, and other sources like unused COVID-relief dollars. Hopefully the as-built bill will truly facilitate a better infrastructure system through variable projects, and not just create more federal programs that promise much, spend more, but only modestly deliver.