Senate EPW Committee takes a big swing at new surface transportation authorization

At a time when it becomes more and more obvious that a new long-term federal surface transportation reauthorization is clearly needed, the Senate Committee on Environment and Public Works (EPW) stepped up to the plate today, trying to get on base with the introduction of a bill, that, were it to be approved and signed into the law, would truly be a grand slam, as it would represent the single largest highway legislation ever.

Entitled America’s Transportation Infrastructure Act of 2019, Senate EPW officials said this five-year, $287 billion bill includes $259 million for formula programs to maintain and repair United States roads and bridges. What’s more, they noted that the $287 billion tally represents a 27% increase over FAST (Fixing America’s Surface Transportation) Act levels.

This bill was introduced by Senators John Barrasso (R-WY), committee chairman, Tom Carper (D-DE), committee ranking member, Shelley Moore Capito (R-WV), chairman of the EPW Subcommittee on Transportation and Infrastructure), and Ben Cardin (D-MD), ranking member of the EPW Subcommittee on Transportation and Infrastructure.

“Every American benefits from better roads and bridges. America’s Transportation Infrastructure Act is a bill for the whole country,” said Barrasso in a statement. “The legislation is the most substantial highway infrastructure bill in history. By modernizing our roads and bridges, we can make the roads safer for every family driving on them. The bill cuts Washington red tape, so road construction can get done faster, better, cheaper, and smarter. It will help create jobs and support our strong, growing, and healthy economy. Infrastructure is critical to our country and we should responsibly pay for this legislation. I want to thank Ranking Member Carper and all the members of the committee for their work and input on this legislation. America’s Transportation Infrastructure Act will grow the economy, make our roads safer, and enhance quality of life for the American people.”

In addition to the bill’s $287 billion price tag, with $259 billion to be distributed to states by formula, other aspects of the America’s Transportation Infrastructure Act of particular interest to freight transportation and logistics stakeholders include:

• codifying key tenets of the “One Federal Decision” policy to streamline project delivery and federal approvals;
• establishing a program to support policies that will improve the resiliency of roads and bridges to natural disasters and extreme weather events;
• the authorization of a mix of formula-based and grant-based programs to begin to reduce transportation-related emissions;
• grants for charging and fueling infrastructure to modernize and reconnect America for the 21st century to strategically deploy alternative fuel vehicle charging and fueling infrastructure  along designated alternative fuel corridors that will be accessible to all drivers of electric, hydrogen and natural gas vehicles;
• reduction of truck idling and emissions at port facilities through a competitive grant program, including port electrification efforts;
• a carbon reduction incentive program comprised of supplemental formula and competitive grant funds [of $600 million and $100 million, respectively] to expand investment in transportation improvements designed to reduce on-road mobile sources of carbon and incentivize planning and investments to reduce carbon emissions;
• a congestion relief program in the form of competitive grants to state and local governments to advance innovative, integrated, and multimodal solutions to congestion relief in the most congested U.S. metropolitan areas, with $200 million in dedicated funding out of the Highway Trust Fund, from fiscal years 2021-2025;
• adds new strategies for inclusion within the national freight strategic plan, including strategies to promote resilience, national economic growth and competitiveness, and strategies to reduce local air pollution and water runoff. Does not add or establish new procedural requirements for the approval of state freight plans;
• Establishes a supplemental formula and competitive grant program to help States improve the resiliency of transportation infrastructure. This bill provides $786 million and $200 million from the Highway Trust Fund for formula and competitive grants, respectively, for each of fiscal years 2021 through 2025;
• Transportation Infrastructure Finance and Innovation Act of 1998 (TIFIA) amendments in the form of updates to the TIFIA program to increase utilization, streamline the application process, and increase transparency in the vetting process for projects seeking TIFIA funds. Expands program eligibility to airport projects and additional transit-oriented development projects, subject to a cap and sunset. Extends the authorization of State Infrastructure Bank program through fiscal year 2025;
• increases INFRA/ Nationally Significant Freight and Highway Projects Program funding to $5.5 billion over five years (the FAST Act authorized the program at $4.5 billion over five years). Funds available to multimodal projects through this program increases significantly – from a cap of $500 million over five years to a cap of 30% annually, or $1.65 billion. The proposal also calls for transparency measures in the grant decision making process;
• increases freight formula program funding to $8.5 billion over five years (the FAST Act authorized the program at $6.3 billion over five years) and raises the amount that can be invested annually in multimodal freight infrastructure from a cap of 10% of project funds available to multimodal projects, to a cap of 30%, or $2.55 billion; and
• provides funding to test the feasibility of a road usage fee or other user-based alternative revenue mechanisms that preserve a user fee structure to maintain the long-term solvency of the Highway Trust Fund. Builds upon the pilot program authorized in the FAST Act and strengthens the program objectives to ensure projects test solutions for the collection, privacy, and security of data for the purposes of implementing a user-based alternative revenue mechanism

The introduction of this bill comes at a time when movement on a new long-term bill has been stagnant, due, in large part, to partisan dividing lines, as well as a lack of consensus over how to pay for it, with the Highway Trust Fund, continually paying out more than it collects, as the national gasoline tax has remained at current levels going back to 1993.

The current legislation, the FAST Act, is set to expire on September 30, 2020. If agreement on a new bill is not reached by then, it is safe to expect surface transportation funding will go through a series of short-term extensions.

Randy Mullett, principal of Mullett Strategies, a consulting practice focused on helping clients navigate the intricacies of Washington, DC in the areas of trucking, freight, sustainability, security, and safety, and longtime Government Relations and Public Affairs official for Con-way and XPO Logistics, described the America’s Transportation Infrastructure Act of 2019 as a really important first step if there is to be any hope of an infrastructure bill before 2021.

“The increased dollar amounts are substantial and necessary but don’t come close to the numbers both sides of the aisle and the administration have been touting,” he said. “Advancing the ‘One Federal Decision’ for environmental reviews and approvals is an important step toward improved project delivery times. Not to minimize the importance of the bill or some of the program tweaks contained but, other than the points above, this is a pretty ‘plain vanilla’ piece of legislation.  Then again, I’m sure that was necessary to get a bipartisan bill written to get the infrastructure ball rolling.”

In June, at the SMC3 Connections 2019 event in Colorado Springs, Colorado, Jim Burnley, a partner at Washington D.C.-based law firm Venable LLP and former Secretary of Transportation under the late President Ronald Reagan, was selling short on the prospects of a new bill being passed anytime soon.

“Things in Washington are as dysfunctional as they have ever been on a sustained basis,” Burnley told the audience. “We are not getting much done on the legislative side. One area where a lot is happening is in deregulation…with the Trump administration being focused at all levels of looking at regulatory schemes it inherited that were put out by the Obama administration and rolled back a number of those.”

Burnley lamented the lack of any serious discussion inside the Beltway regarding how to pay for the next surface transportation infrastructure bill.

“When you keep increasing expenditures out of the Highway Trust Fund and don’t increase the revenue stream [the HTF is the primary source of infrastructure funding and has not been increased since 1993], it cannot end well,” he said. “We can no longer make up the shortfall by moving money out of the U.S. general fund. We are going to have a $1 trillion deficit and are looking at a four- or five-year reauthorization bill with a HTF shortfall of anywhere from $78 billion to $125 billion. I don’t see a political scenario right now where we close that gap up.”