Senate’s passage of infrastructure bill is welcomed but challenges remain to get to finish line

While the United States Senate voting in favor of passing the $1 trillion Infrastructure Investment and Jobs Act (IIJA) this week, there comes a sense of relief that a long-awaited bill was finally passed, but more work needs to occur for everything to fall into place moving forward, according to various transportation infrastructure experts.

As reported by LM, this bill should provide an almost immediate impact on the nation’s infrastructure, which received a “C—” grade from the American Society of Civil Engineers recently. That’s because it provides $113.3 billion in advance general fund appropriations for various forms of infrastructure—including transport—“above and beyond” authorization and funding from trust funds.

The deal provides about $567 billion new federal money for roads, bridges, rail lines, transit projects, water systems and other physical infrastructure programs. To address the truck driver shortage, the bill creates a pilot apprenticeship program for drivers under 21. As much as $77.9 billion is to address freight system needs. Other key freight-related components of the legislation include:

• funding for freight formula and Infrastructure for Rebuilding America (INFRA) programs is 40% above 2015 Fast Act levels, to $8 billion;
• increases the amount of multimodal eligible funding to 30% annually;
• provides $2.25 billion over five years, or $450 million annually, for the Port Infrastructure Development Program;
• $40 billion over five years for bridge improvement projects through new competitive and formula funding programs;
• $110 billion in new spending to address the aging infrastructure needs of the nation’s roads and bridges;
• $72 billion for the Surface Transportation Block Grant Program, which includes electric vehicle charging infrastructure and vehicle-to-grid infrastructure;
• $1.225 billion for Railway-Highway Grade Crossings;
• $7.15 billion for the National Highway Freight Program, which increases the maximum number of highway miles a state may designate as critical rural freight corridors from 150 to 300 miles, and critical urban freight corridors from 75 to 150 miles;
• $6.42 billion for a Formula Carbon Reduction Program, which establishes a new carbon reduction program to reduce transportation emissions;
• $250 million for reducing truck emissions at ports;
• $3 billion for the FRA Railroad Crossing Elimination Program; and
• a pilot program on a gas tax alternative that would charge users based on vehicle miles traveled (VMT)

James Burnley, an attorney at Washington, D.C.-based Venable LLP, former U.S. Secretary of Transportation and one of the nation’s foremost authorities on transportation law and policy, described the Senate’s passing of the IIJA as a major step, albeit with some caveats.

“We are a long way from having legislation signed by President Biden,” he said. “There are a lot of conflicting signals coming out of the House. The Progressive Caucus has raised a lot of concerns even in the last couple of days. Chairman DeFazio is very unhappy, I don’t know to what extent he will go to express that unhappiness, but one issue that [gets overlooked] is that, for the first time in a decade, there are a lot of earmarks in the bill that the House Transport committee marked up. If you simply pass the Senate bill as it is, those earmarks all evaporate. I don’t know how ultimately that affects the bill’s passing in the house, but it is a factor, I think.”

Notable in its absence, in the bill, is the lack of user fees to pay for infrastructure upgrades. Burnley observed that the Department of Transportation (DOT) will need to figure out how to implement the VMT pilot program, which he said has received pushback from both sides of the aisle in recent days, noting that criticism is way off target, as it is a pilot program—and there have been VMT pilots at the state level in Oregon, California, and Utah.

“It is a way to learn what the alternatives are as a practical matter to the fuel tax,” he said. “I was personally pleased they included a pilot program but am a little surprised at the flack it has drawn.”

And Fred Wagner, an attorney at Venable LLP, and former chief counsel of the U.S. Federal Highway Administration (FHWA), said that the bottom line of this bill is that there is more deficit spending.

“If they are not going to be increasing user fees then they need to get more serious about this moving forward,” said Wagner. “And, remember, this goes hand in hand with the major push towards electrification, which only exacerbates the problem in terms of the collection of revenue.”

Wagner went on to point out how that is a big development for the freight community, noting how in 2009, when the American Recovery and Reinvestment Act was passed, the additional money above baseline for highways, roads, and bridges, for the first year of the legislation was $25 billion. Whereas, now, there is $550 billion allocated over five years, and another $100 billion for DOT per year above baseline, as not all of that funding is marked for DOT.

“Remember, this White House is not necessarily in favor of projects that add capacity, so things like safety for freight movement in corridors with truck traffic, rail freight movement, last mile connectivity, all of that kind of stuff gets a great deal of attention under this bill because of these additional revenues,” he said. “That is the obvious part, but the second part is the nature of the projects that are going to be favored and promoted by this administration are those that improve existing infrastructure, not necessarily building brand new capacity. And there is a whole backlog of things like truck rest stops, truck corridors, rail connections, last mile stuff that I think will get a lot of attention as a result of these additional dollars.”  

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, said that he was pleased the Senate got the IIJA across the finish line.

“It feels like we finally made it but it is only the end of the beginning—still a long way to go,” he said. “I am happy at the increased highway spending but concerned about the large percentage that will be controlled by DOT rather than traditional state formula funding. I remain concerned about the huge increase in passenger rail funding and the reduction in freight capacity that could result as passenger and freight trains compete for the same track assets.”

Mullett said, at the moment, it is unclear how the House plans to respond, in terms of if they take up the Senate bill or try to conference with their already passed Invest Act (T&I Bill), calling the possible next steps wildcards.