Tag: transport

Federal Surface Transportation Agencies Issue Updated Guidance for Section 139 Environmental Review and Permitting Process

The Federal Highway Administration (FHWA), Federal Transit Administration (FTA), and Federal Railroad Administration (FRA) (the Agencies) recently issued updated guidance for implementing 23 U.S.C. § 139 (Section 139). Section 139 contains special procedures and requirements for the environmental review and permitting process for surface transportation and multimodal projects. The new guidance — officially titled “Section 139 Environmental Review Process: Efficient Environmental Reviews for Project Decisionmaking and One Federal Decision” (Guidance) — is effective immediately. The Agencies will accept public comments on the Guidance until February 18, 2025. This article highlights some of its significant features.

Background

Section 139 was first enacted in 2005 as part of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). Section 139 was innovative as an early effort to improve the efficiency of environmental reviews under the National Environmental Policy Act (NEPA) for highway and transit projects. Aspects of Section 139 later formed the basis for other NEPA streamlining measures such as Title 41 of the Fixing America’s Surface Transportation (FAST) Act, President Trump’s since-revoked Executive Order 13807, and the NEPA amendments in the Fiscal Responsibility Act.

The updated Section 139 Guidance is long overdue. FHWA and FTA’s prior version of the Section 139 guidance document was published in 2006. In the ensuing 18 years, Section 139 was amended by multiple surface transportation reauthorization laws (the Moving Ahead for Progress in the 21st Century Act in 2012, the FAST Act in 2015, and the Infrastructure Investment and Jobs Act in 2021); NEPA was amended by the Fiscal Responsibility Act in 2023; and the Agencies (in 2018) and the Council on Environmental Quality (CEQ) (in 2020, 2022, and 2024) revised their regulations implementing NEPA.

Notable Aspects of the New Section 139 Guidance

Applicable Version of Section 139

As noted above, Section 139 was first enacted in 2005 and was amended in 2012, 2015, and 2021. The Guidance clarifies that the applicable version of the statute is the version in effect “at the time the project was initiated (e.g., publication of a notice of intent (NOI) to develop a new environmental impact statement (EIS), or a determination to proceed with an environmental assessment (EA) that will follow the Sec. 139 environmental review process).” For projects undergoing supplemental environmental review, the Guidance states that the applicable version of the statute is the version in effect at the time of the NOI for the supplemental EIS or EA (if a NOI is published) or at the time the project was initiated (if a NOI is not published for the supplemental environmental review). These applicability rules could affect a lead agency’s decision whether to publish an optional NOI for an EA or a supplemental environmental review.

The Guidance states that as a “limited exception” to the general rule described above, a supplemental EIS is exempt from the Section 139 requirements if the original EIS was “under active development” during the eight months prior to August 11, 2005 (the date of SAFETEA-LU’s enactment). The Guidance does not explain the statutory or other legal basis for this exception. This exception is similar to an exception in the prior version of the guidance for “an EIS that was under active development during the 8 months prior to August 11, 2005, and that is being re-scoped due to changes in plans or priorities, even if a revised [NOI] is published.”

As another exception, the Guidance states that FRA will not apply Section 139 to “any railroad project for which the Secretary [of Transportation] approved the funding arrangement under title 49, U.S. Code, before December 4, 2015” (the date of the FAST Act’s enactment). While this exception is consistent with 49 U.S.C. § 24201(e), the Guidance does not acknowledge that this statutory section also covers “any existing environmental review process, program, [or] agreement” for a railroad project as of the date of the FAST Act’s enactment.

Applying Section 139 to Railroad Projects

One of the most notable changes in the Guidance is the addition of FRA as an author and changes throughout the document explaining how FRA will apply Section 139. When initially enacted in 2005, Section 139 applied only to highway and public transportation capital projects; the previous version of the Section 139 guidance was issued only by FHWA and FTA. After the FAST Act was enacted, Section 139 applied to railroad projects “to the greatest extent feasible.” (49 U.S.C. § 24201(a).) The Guidance dispenses with that qualifier, suggesting that Section 139 applies categorically to all railroad and FRA projects.

“Major Project” Determinations

Certain aspects of Section 139 apply only to “major projects,” defined as a project for which (1) multiple permits, approvals, reviews, or studies are required under a federal law other than NEPA; (2) “the project sponsor has identified the reasonable availability of funds sufficient to complete the project;” (3) the project is not a covered project under Title 41 of the FAST Act; and (4) an EIS is required or, if an EA is required, the project sponsor requests that the project be treated as a major project. (23 U.S.C. § 139(a)(7).) The Guidance explains the information that FHWA, FTA, and FRA each will consider to determine whether a project has a reasonable availability of funding. The Guidance states that the federal lead agency will determine whether a project is a major project during project initiation.

Harmonizing Section 139 with the Fiscal Responsibility Act’s NEPA Amendments

The Guidance states that Section 139’s timeframes for major projects “apply in lieu of” the deadlines in NEPA. For major projects, Section 139 requires, “to the maximum extent practicable and consistent with applicable Federal law,” a schedule consistent with an agency average of not more than two years for the completion of the environmental review process for major projects. (23 U.S.C. § 139(g)(1)(B)(iii).) NEPA, as amended by the Fiscal Responsibility Act, establishes deadlines of two years for completion of an EIS and one year for completion of an EA. (42 U.S.C. § 4336a(g).) These two timing provisions are not necessarily irreconcilable. And the Guidance does not address how its interpretation is consistent with 23 U.S.C. § 139(g)(1)(C) (which states that a schedule “shall be consistent with any other relevant time periods established under Federal law) and 23 U.S.C. § 139(k)(2) (which states that nothing in Section 139 “shall be construed as superseding, amending, or modifying” NEPA).

The Guidance states that Section 139’s 200-page limit for an EIS — which applies “notwithstanding any other provision of law” (23 U.S.C. § 139(n)(3)), unlike the schedule provision described above — takes precedence over NEPA’s generally applicable page limits (150 pages, or 300 pages for a proposed action of “extraordinary complexity”).

For other provisions that are not in direct conflict — including those related to lead agency responsibilities, the project’s purpose and need statement, and considerations for using a single environmental document for all federal agency reviews and decisions — the Guidance states that Section 139 “supplements” the requirements in NEPA.

Applicable Page Limits and Deadlines

The Guidance includes two appendices with tables depicting the applicable page limits (Appendix F) and timing requirements (Appendix G) for EAs and EISs based on the date the environmental document was initiated. Curiously, the tables do not reference the 2023 NEPA amendments (which were effective upon enactment on June 3, 2023). And the tables do not recognize that agencies “may apply” CEQ’s current NEPA regulations “to ongoing activities and environmental documents” begun before the effective date of the regulations (July 1, 2024) (40 C.F.R. § 1506.12).

Applicability of Section 139 to Projects Not Having an EIS

Section 139 provides that its project development procedures apply to projects for which an EIS is prepared and “may be applied” to other projects for which an environmental document is prepared “as requested by a project sponsor and to the extent determined appropriate by the Secretary [of Transportation].” (23 U.S.C. § 139(b)(1).) The Guidance states that FHWA will determine whether, and to what extent, to apply the Section 139 process requirements to non-EIS projects “on a project-by-project basis.” The Guidance states that, in general, FRA and FTA will apply the Section 139 process requirements only to EIS projects but may apply them, in whole or in part, to non-EIS projects “depending on the circumstances of the project; these provisions could include the statute of limitations (SOL) on claims or the joint lead agency approach.”

Concurrence Points on Purpose and Need Statement and Alternatives

The Guidance states that lead agencies should, as a “best practice,” obtain written concurrence from cooperating agencies on a draft purpose and need statement and the preliminary range of alternatives before publishing the NOI, as well as later concurrence on the preferred alternative. The Guidance also states that if the purpose and need statement or the range of alternatives are modified “after consideration of the public comments received in response to the publication of the NOI, the Federal lead agency should obtain additional written concurrence from the cooperating agencies prior to publishing the Draft EIS.” While concurrence is a well-intentioned practice, it could result in unnecessary delays in the environmental review process, especially to the extent the Guidance encourages lead agencies to obtain concurrence from cooperating agencies that do not have jurisdiction to issue any authorization for the project.

Pre-NOI Activities

The Guidance encourages lead agencies to conduct significant work before publishing the NOI. This includes identifying and inviting cooperating and participating agencies, soliciting public comment on the draft purpose and need statement and preliminary range of alternatives, obtaining written concurrence from cooperating agencies on a draft purpose and need statement and preliminary range of alternatives, developing a draft coordination plan and project schedule, developing a public involvement plan, determining the extent of environmental analysis needed for each resource, identifying potentially significant environmental issues, and identifying potential mitigation strategies.

Requesting Extensions of Established Schedules or Deadlines

The Guidance states that project applicants may request an extension to a schedule or deadline by submitting a request in writing to the lead agency at least 45 days before the deadline, “explaining the project’s status, explaining why an extension is needed, and providing a proposed updated schedule. The NEPA federal lead agency will determine whether an extension will be granted. A schedule extension should be requested if a project’s schedule is not expected to meet a deadline for completion of the EIS or EA.”

Notices of Statute of Limitations on Claims

The Guidance describes each of the Agencies’ different processes related to publishing notices in the Federal Register to trigger Section 139’s short statute of limitations on claims pursuant to 23 U.S.C. § 139(l) (150 days for highway, transit, and multimodal projects) or 49 U.S.C. § 24201(a)(4) (2 years for railroad projects). (If no such notice is published, NEPA’s generally applicable six-year limitations period would apply.) The Guidance includes an explanation of “risk management factors” that FHWA (but not FTA or FRA) will consider when deciding whether to publish such a notice for a project.

Planning and Environmental Linkages

The Guidance explains how statutory and regulatory authorities allow for transportation planning documents and state environmental review processes to be used during the NEPA process to inform the purpose and need statement, alternatives, description of environmental setting, and identification of environmental impacts and mitigation. The Guidance states that FHWA encourages the use of Planning and Environmental Linkages under the provisions of both 23 U.S.C. § 139(f)(4)(E) and 23 U.S.C. § 168 to the extent practicable, whereas FTA’s preference is to follow the Planning and Environmental Linkages approach in 23 C.F.R. part 450 instead of 23 U.S.C. § 139(f)(4)(E). The Guidance notes that 23 U.S.C. § 139(f)(4)(E) applies to railroad projects and encourages railroad project sponsors to coordinate with FRA on integrating planning (including the Corridor Identification and Development Program) with the NEPA process.

Using Errata Sheets for a Final EIS and Issuing a Combined Final EIS and Record of Decision

The Guidance incorporates, with some changes, many aspects of the Department of Transportation’s “Guidance on the Use of Combined Final Environmental Impact Statements/Records of Decision and Errata Sheets in National Environmental Policy Act Reviews” (Apr. 25, 2019).

Applicability of Section 139 and Guidance to NEPA Assignment States

The Guidance states that Section 139 applies to projects for which a state has assumed the Department of Transportation’s responsibilities under NEPA and other environmental laws pursuant to the Surface Transportation Project Delivery Program under 23 U.S.C. § 327. The Guidance is silent on whether Section 139 applies to projects covered by the more limited categorical exclusion assignment program under 23 U.S.C. § 326. As to the applicability of the Guidance itself to NEPA assignment projects, the Guidance suggests that states participating in the NEPA assignment program “should coordinate with FHWA, FRA, or FTA, as appropriate, regarding the applicability of this guidance.”

Process Charts

The Guidance includes, as Appendix H, two detailed charts depicting a “recommended best practice timeline” for completing the NEPA and permitting processes for EAs and major project EISs. These charts depict how other state and federal agencies’ permitting processes can be coordinated to achieve the timeframes required by NEPA and Section 139.

Next Steps

As an interim final guidance, the Guidance is effective immediately while the Agencies solicit public comments. The deadline to provide comments on the Guidance is February 18, 2025. The Agencies will then make any changes they determine to be appropriate and will issue a final guidance. Notably, this work will occur during the incoming Trump administration, and the final guidance may reflect the priorities of the Agencies’ new leadership.

© 2010-2024 Allen Matkins Leck Gamble Mallory & Natsis LLP
For more on Federal Surface Transportation Agencies, visit the NLR Environmental Energy Resources and Utilities Transport sections.

Navigating the Data Privacy Landscape for Autonomous and Connected Vehicles: Best Practices

Autonomous and connected vehicles, and the data they collect, process and store, create high demands for strong data privacy and security policies. Accordingly, in-house counsel must define holistic data privacy best practices for consumer and B2B autonomous vehicles that balance compliance, safety, consumer protections and opportunities for commercial success against a patchwork of federal and state regulations.

Understanding key best practices related to the collection, use, storage and disposal of data will help in-house counsel frame balanced data privacy policies for autonomous vehicles and consumers. This is the inaugural article in our series on privacy policy best practices related to:

  1. Data collection

  2. Data privacy

  3. Data security

  4. Monetizing data

Autonomous and Connected Vehicles: Data Protection and Privacy Issues

The spirit of America is tightly intertwined with the concept of personal liberty, including freedom to jump in a car and go… wherever the road takes you. As the famous song claims, you can “get your kicks on Route 66.” But today you don’t just get your kicks. You also get terabytes of data on where you went, when you left and arrived, how fast you traveled to get there, and more.

Today’s connected and semi-autonomous vehicles are actively collecting 100x more data than a personal smartphone, precipitating a revolution that will drive changes not just to automotive manufacturing, but to our culture, economy, infrastructure, legal and regulatory landscapes.

As our cars are becoming computers, the volume and specificity of data collected continues to grow. The future is now. Or at least, very near. Global management consultant McKinsey estimates “full autonomy with Level 5 technology—operating anytime, anywhere” as soon as the next decade.

This near-term future isn’t only for consumer automobiles and ride-sharing robo taxis. B2B industries, including logistics and delivery, agriculture, mining, waste management and more are pursuing connected and autonomous vehicle deployments.

In-house counsel must balance evolving regulations at the federal and state level, as well as consider cross-border and international regulations for global technologies. In the United States, the Federal Trade Commission (FTC) is the regulatory agency governing data privacy, alongside individual states that are developing their own regulations, with the California Consumer Privacy Act (CCPA) leading the way. Virginia and Colorado have new laws coming into effect in 2022, the California Privacy Rights Act comes into effect in 2023, and a half dozen more states are expected to enact new privacy legislation in the near future.

While federal and state regulations continue to evolve, mobility companies in the consumer and B2B mobility sectors need to make decisions today about their own data privacy and security policies in order to optimize compliance and consumer protection with opportunities for commercial success.

Understanding Types of Connected and Autonomous Vehicles

Autonomous, semi-autonomous, self-driving, connected and networked cars; in this developing category, these descriptions are often used interchangeably in leading business and industry publications. B2B International defines “connected vehicles (CVs) [as those that] use the latest technology to communicate with each other and the world around them” whereas “autonomous vehicles (AVs)… are capable of recognizing their environment via the use of on-board sensors and global positioning systems in order to navigate with little or no human input. Examples of autonomous vehicle technology already in action in many modern cars include self-parking and auto-collision avoidance systems.”

But SAE International and the National Highway Traffic Safety Administration (NHTSA) go further, defining five levels of automation in self-driving cars.

Levels of Driving Automation™ in Self-Driving Cars

 

 

Level 3 and above autonomous driving is getting closer to reality every day because of an array of technologies, including: sensors, radar, sonar, lidar, biometrics, artificial intelligence and advanced computing power.

Approaching a Data Privacy Policy for Connected and Autonomous Vehicles

Because the mobility tech ecosystem is so dynamic, many companies, though well intentioned, inadvertently start with insufficient data privacy and security policies for their autonomous vehicle technology. The focus for these early and second stage companies is on bringing a product to market and, when sales accelerate, there is an urgent need to ensure their data privacy policies are comprehensive and compliant.

Whether companies are drafting initial policies or revising existing ones, there are general data principles that can guide policy development across the lifecycle of data:

Collect

Use

Store

Dispose

Only collect the data you need

Only use data for the reason you informed the consumer

Ensure reasonable data security protections are in place

Dispose the data when it’s no longer needed

Additionally, for many companies, framing autonomous and connected vehicle data protection and privacy issues through a safety lens can help determine the optimal approach to constructing policies that support the goals of the business while satisfying federal and state regulations.

For example, a company that monitors driver alertness (critical for safety in today’s Level 2 AV environment) through biometrics is, by design, collecting data on each driver who uses the car. This scenario clearly supports vehicle and driver safety while at the same time implicates U.S. data privacy law.

In the emerging regulatory landscape, in-house counsel will continue to be challenged to balance safety and privacy. Biometrics will become even more prevalent in connection to identification and authentication, along with other driver-monitoring technologies for all connected and autonomous vehicles, but particularly in relation to commercial fleet deployments.

Developing Best Practices for Data Privacy Policies

In-house counsel at autonomous vehicle companies are responsible for constructing their company’s data privacy and security policies. Best practices should be set around:

  • What data to collect and when

  • How collected data will be used

  • How to store collected data securely

  • Data ownership and monetization

Today, the CCPA sets the standard for rigorous consumer protections related to data ownership and privacy. However, in this evolving space, counsel will need to monitor and adjust their company’s practices and policies to comply with new regulations as they continue to develop in the U.S. and countries around the world.

Keeping best practices related to the collection, use, storage and disposal of data in mind will help in-house counsel construct policies that balance consumer protections with safety and the commercial goals of their organizations.

A parting consideration may be opportunistic, if extralegal: companies that choose to advocate strongly for customer protections may be afforded a powerful, positive opportunity to position themselves as responsible corporate citizens.

© 2022 Varnum LLP
For more articles about transportation, visit the NLR Public Services, Infrastructure, Transportation section.

Ongoing Canadian Protests Shine Spotlight on Ripple Effect of Supply Chain Disruptions

Although the last two years have seen a nearly never-ending line of supply chain impacts for manufacturers, the latest disruption is also serving to shine a spotlight on the broader impact that relatively small disruptions in the supply chain can have on the global economy.  We all know that trucking is a critical component of the economy.  The U.S. estimates seventy two percent of goods in the U.S. travel by truck.  Trucking has become even more important in this era of increased deliveries and backlogs at ports and other logistics hubs.

In Canada, what began as protests by truckers regarding certain pandemic-related restrictions and mandates have snowballed into broader protests and blockages of roads, bridges, and border crossings.

Protesters have been blocking various bridges and roads in Canada in protest of certain pandemic-related restrictions and mandates.  On Tuesday, the bridge connecting Windsor, Ontario to Detroit (a critical linkage for cross-border travel) was largely blocked, with traffic stopped going into Canada and slowed to a trickle going into the United States. The blockades are now leading U.S. automakers to begin trimming shifts and pausing certain operations in their Michigan and Canadian plants. The bridge protests and automakers’ reduction in capacity continued on Thursday without an end in sight.

The ongoing protests in Canada have also served as a reminder of how seemingly local trucking disruptions in one country can cascade through the supply chain.  This is not the first time that trucking strikes and blockages have rippled through the supply chain and economy.  In 1996, a truckers’ strike in France lasted 12 days, barricading major highways and ultimately leading to concessions from the French government over certain worker benefits and hours.  The resulting agreement led to heightened tensions with Spain, Portugal, and Great Britain due to the impact felt across borders.  In 2008, truckers went on strike in Spain and blocked roads and border crossings, protesting fuel prices.  In 2018, truckers in Brazil staged a large strike and protest that lasted for 10 days, blocking roads, disrupting food and fuel distribution, canceling flights, and causing certain part shortages for automakers.

The ongoing protests in Canada have similarly expanded from Ottawa to the current blockage of border crossings, further raising their profile internationally as they begin to impact global trade.  It remains to be seen how the blockades and protests will resolve, as leaders call for de-escalation and re-opening of roads and crossings.  However, the ripple effects of what started as a localized protest will continue to be felt far beyond Canada’s borders.

Article By Lauren M. Loew of Foley & Lardner LLP

For more COVID-19 and supply chain legal news, click here to visit the National Law Review.

© 2022 Foley & Lardner LLP

Electrification of the Fleet is on the Horizon, Preparing Now is Key

While we often hear how EVs will revolutionize the lives of the average consumer, commercial fleet owners are starting to take note of the impact these new powertrain systems will have on their own business and operations. As OEMs find creative ways to increase aerodynamics, extend battery range, and increase charging speeds, the zero emission and lower long-term cost of EVs compared to ICE (internal combustion engine) vehicles makes a compelling argument for adoption, at least on paper. What really matters is how those factors play out as the rubber hits the road, which OEMs are starting to see play out in real time. Over the past few years, there has been an explosion of commercial fleet platforms from existing and new entrants in the commercial vehicle space. From light to heavy trucking to fleet platform automobiles, EV technology is looking to capture every corner of the commercial fleet sector. Coupled with a slow reduction in the number of ICE vehicles produced in future years, the market may start pushing fleet operations towards EVs, whether they like it or not.

According to the Department of Transportation, over eight million vehicles made up commercial fleets in the US in 2020, which includes a mix of trucks and automobiles used in commercial and government operations. Even more make up commercial vehicles on the road that are not considered part of a fleet. As consumer demand drives most traditional OEMs toward EV dominated fleets, commercial fleet owners and operators need to start to prepare now for the same shift in their vehicle suppliers, or risk playing catchup once the market does turn from ICE to EV. This isn’t to say that failure to be an early adopter will be the death-knell to commercial fleet businesses; it likely won’t be. What businesses with commercial fleets should consider is their own business needs and their timeline for their own fleet replacement as EV technology and infrastructure support continues to evolve. Establishing a process and plan for upgrading existing fleets, training personnel, upgrading infrastructure, and understanding available programs for conversion will be key.

The switch from an ICE to EV fleet isn’t as simple as flipping a switch or plugging in a car – EVs bring a new powertrain and new sources of information. EVs in their current state are expensive, new vehicle supply is constantly in question, current operators are unaware of the nuances involved with operating an EV, and the infrastructure necessary to support a commercial fleet of EVs isn’t universally robust. For the average fleet operator, there also is a need to focus on route optimization, installing and maintaining new hardware capable to supporting charging on-site, revamping their maintenance and care procedures, and working with their local energy providers to understand how power demands in their local market may impact their own energy costs and needs. Additionally, although data analytics has improved existing fleet operations over the past few years, expect to see more nuanced data availability to the benefit of fleet operators.  As commercial and consumer EVs come out with ever more connectivity to the web and each other, coupled with the ability for “smart cities” to increase data available to drivers and vehicles, expect future fleet operators to get even more granular and predictive understanding of traffic patterns to optimize commercial routes. Managing these dynamics and capitalizing on new sources of information will better enable operators to adapt to the changing landscape. The ability to adapt to this new frontier will be a key trait for successful fleet operations in the Auto-2.0 operated environment.

Article By Christopher R. Boll of Foley & Lardner LLP

For more infrastructure and transportation legal news, click here to visit the National Law Review.

© 2022 Foley & Lardner LLP

H.R. 3684: Infrastructure Investment and Jobs Act

On November 5, the U.S. House of Representatives approved a $1.2 trillion infrastructure spending bill that will make historic investments in core infrastructure priorities including roads and bridges, rail, transit, ports, airports, the electric grid, and broadband.

The legislation, titled the Infrastructure Investment and Jobs Act (“IIJA”), will have major implications for states and municipalities of all sizes, as well as the entities involved in responding to governments’ needs for hard and cyber infrastructure.

Improvements to roadways, ports and mass transit are the focus of the legislation and the majority of the funding is targeted at these traditional hard infrastructure projects. U.S. Senator Rob Portman (R-OH) has championed the massive infrastructure bill and pushed for its passage.

This weekend, Senator Portman noted the massive impact the IIJA will have on Ohio, highlighting the bill’s bridge investment program which will award competitive grants to certain governmental entities to improve the condition of bridges. “This additional federal funding means we are one step closer to a solution for the Brent Spence Bridge,” Portman said.

The Brent Spence Bridge, which connects Cincinnati, Ohio with Covington, Kentucky has one of the busiest trucking routes in the nation. Questions about its safety and long shutdowns for repair have long concerned area residents as well as the business owners responsible for the more than $400 billion of freight which passes over the bridge every year.

While hard infrastructure priorities like bridge maintenance, port modernization, freight rail, and highway improvements account for a majority of the new spending appropriated by the bill (which totals $550 billion over five years), a sizable portion is dedicated to the expansion of broadband networks and the improvement of cybersecurity.

The new cybersecurity grant program and record-setting investments in broadband development could be game changing for state and local leaders wishing to modernize and protect their communities in these ways.

The U.S. Senate approved the IIJA in August 2020. Friday’s vote means the infrastructure bill will now move to the desk of President Joe Biden, who has indicated a bill signing ceremony will happen soon. Answers to questions about the billions of dollars in new infrastructure grants and programming are below.

Question: How will the money be distributed? 

Answer: The IIJA contains formulaic allocations of funds as well as earmarks and competitive grants. Some categories and sub-categories contain both non-competitive and competitive grants.

  • NON-COMPETITIVE FUNDING ALLOCATION PROCESSES
    • Formulas dictated by the bill are based on criteria like state population, or, potentially for specific items, users (ex: transit funds potentially determined by ridership)
    • Once the money is directed to the states, the local bureaucrats are able to make the important decisions about which projects deserve the funding.
    • States can also decide to allocate some of the funding to the county or city governments within their state
  • EARMARKS AND COMPETITIVE GRANT PROCESSES
    • Earmarks override state plans for how infrastructure funds should be spent. “Earmarks come out of the money that the state was going to get anyway.”
    • Localities must compete for Competitive Grants via an application process. The U.S. Department of Transportation’s Discretionary Grant Process is officially outlined on their website.
    • Generally, the award of competitive grants can be influenced by advocates who confer with decisionmakers in the Executive Branch about the merits of certain proposals.

Question: Which projects will qualify for funding?

Answer: The bill details specific funding streams for the specific projects included in its provisions. Categories of projects included in the $550 billion in new spending are below.

  • Roads, Bridges, & Major Projects: $110B — Funds new, dedicated grant program to replace and repair bridges and increases funding for the major project competitive grant programs. Preserves the 90/10 split of federal highway aid to states.
  • Passenger and Freight Rail: $66B — Provides targeted funding for the Amtrak National Network for new service and dedicated funding to address repair backlogs. Increases funding for freight rail and safety.
  • Safety and Research: $11B — Addresses highway, pedestrian, pipeline, and other safety areas (highway safety accounts for the bulk of this funding).
  • Public Transit: $39.2B — Funds nation’s transit system repair backlog, which includes buses, rail cars, transit stations, track, signals, and power systems. This allocation also includes money to create new bus routes and increase accessibility to public transit for those with physical mobility challenges.
  • Broadband: $65B — Funds grants to states for broadband deployment and other efforts to address access issues in rural areas and low-income communities. Expands eligible private activity bond projects to include broadband infrastructure.
  • Airports: $25B — Increases Airport Improvement grant amounts for runways, gates, & taxiways and authorizes a new Airport Terminal Improvement program.
  • Ports and Waterways: $17.4B — Provides funding for waterway and coastal infrastructure, inland waterway improvements, port infrastructure, and land ports of entry through the Army Corps, DOT, Coast Guard, the GSA, and DHS.
  • Water Infrastructure: $54B — Provides a $15 billion for lead service line replacement and $10 billion to address PFAS in water, in addition to other items.
  • Power and Grid: $65B — Funds grid reliability and resiliency projects and support for a Grid Development Authority; critical minerals and supply chains for clean energy technology; key technologies like carbon capture, hydrogen, direct air capture, and energy efficiency; and energy demonstration projects from the bipartisan Energy Act of 2020.
  • Resiliency: $46B — Funds cybersecurity projects to address critical infrastructure needs, flood mitigation, wildfire, drought, coastal resiliency, waste management, ecosystem restoration, and weatherization.
  • Low-Carbon and Zero-Emission School Buses & Ferries: $7.5B — Funds and authorizes the adoption of low-carbon and zero-emission school buses, including through hydrogen, propane, LNG, compressed natural gas, biofuel, and electric technologies. Provides support for a pilot program for low emission ferries and rural ferry systems.
  • Electric Vehicle Charging: $7.5B — Funds alternative fuel corridors and a national build out of electric vehicle charging infrastructure. The federal funding will have a particular focus on rural and/or disadvantaged communities.
  • Reconnecting Communities: $1B — Provides dedicated funding for planning, design, demolition, and reconstruction of street grids, parks, or other infrastructure (funding is especially targeted at infrastructure which is deteriorating due to age).
  • Addressing Legacy Pollution: $21B — Funds to clean up brownfield and superfund sites, reclaim abandoned mine lands, and plug orphan oil and gas wells, improving public health and creating good-paying jobs.

Article By Katherine M. Caprez of Roetzel & Andress LPA

For more legislative and legal news, read more from the National Law Review.

©2021 Roetzel & Andress

Tesla Bringing Supercharger Stations to Boston and Chicago

On September 11th, Tesla announced the opening of Supercharger stations in downtown Boston and Chicago, representing the first step in the company’s effort to expand its Supercharger network into urban areas. The company currently operates 951 Supercharger stations worldwide, primarily along major highways to provide quick recharging on long trips. By bringing the network of charging stations into city centers, Tesla hopes to service growing demand among urban dwellers without immediate access to home or workplace charging.

Unlike the Destination Charging connectors at hotels and restaurants meant to replicate the longer home-charging process, Superchargers quickly deliver 72 kilowatts of power to each car for short-term boosts, resulting in charging times around 45-50 minutes. The new stations will be installed near supermarkets, shopping centers, and downtown districts, making it easy for drivers to charge their car while running errands. The Boston Supercharger station will be located at 800 Boylston Street and include 8 charging stalls.

Tesla announced plans to double its national charging network to 10,000 stations by the end of 2017. The company is bringing urban Superchargers to New York, Philadelphia, Washington, Los Angeles, and Austin by the end of this year. The expansion accompanies Tesla’s release of the Model 3 this summer, which boasts a lower starting price of $35,000 that is expected to bring more buyers to the brand.

A spike in Tesla sales would fall in line with the trend of increased demand for electric vehicles (EV) across the country. The year 2016 saw EV sales in the United States increase by 37% over 2015. Total EV sales topped out at roughly 160,000, with five different models (Tesla Model S, Tesla Model X, Chevrolet Volt, Nissan Leaf, and Ford Fusion Energi) selling at least 10,000 units. These sales, coupled with the expanding ease of access to charging station’s like Tesla’s, bode well for continued innovation and growth in the electric auto sector.

This post was written by Thomas R. Burton, III of  Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved. ©1994-2017
For more legal analysis go to The National Law Review