The Emerging Concerns Over the Infrastructure Law Rollout

Republican lawmakers in Congress and some state highway officials are criticizing a proposal by the Transportation Department that would require states to set goals for reducing greenhouse gas emissions on their roads. 

State officials are also pressing for federal agencies to grant their departments greater flexibility in deciding how to spend funding from the new infrastructure law. And they’re warning that they could run into problems trying to meet requirements for buying American-made materials for projects—including with the nationwide buildout of electric vehicle charging stations.

The Transportation Department’s rules for giving out discretionary grants under the $1.2 trillion Infrastructure Investment and Jobs Act tend to be so complicated that West Virginia Transportation Secretary Jimmy Wriston said he can “confidently predict” the administration of that money will be seen as an “abject failure” a year from now.

Wriston and others made their comments on Wednesday during a Senate Environment and Public Works Committee hearing. In addition to flagging their concerns, state and local officials who testified also praised the infrastructure law for providing funding that will allow them to fix bridges, make roads safer and address climate change. 

‘Partisan Policy Priorities’?

Sen. Shelley Moore Capito, the committee’s top Republican, said that the greenhouse gas emissions proposal is another example of the Transportation Department overstepping what lawmakers agreed to in crafting the federal infrastructure law.

The objections over the rule, proposed by the Federal Highway Administration in July, are just the latest complaints from GOP lawmakers that the Biden administration is reaching beyond what Republicans were willing to go along with negotiating the package.

The transportation department did not return a request for comment. But in proposing the rule, Transportation Secretary Pete Buttigieg said it was aimed at addressing the fact that transportation is the leading source of greenhouse gasses in the U.S. The department noted that the infrastructure law includes billions in climate funding, including $6.4 billion in formula grants to states and local governments to develop and implement carbon reduction strategies.

“We are taking an important step forward in tackling transportation’s share of the climate challenge, and we don’t have a moment to waste,” Buttigieg said at the time.

Capito, though, said during the hearing that Republicans had rejected including the provision in the infrastructure act, but are now seeing the administration try to implement it on its own

The West Virginia senator also repeated her objection to guidance from December, by Stephanie Pollack, the deputy administrator of the Federal Highway Administration, encouraging states to use infrastructure dollars to improve existing roads rather than building new ones. 

That and the proposed emissions rule, Capito said, illustrate a “common theme at FHWA, which is implementing partisan policy priorities they wish had been included in the IIJA, and doing so ahead of implementing many of the provisions that are actually in the legislation.”

Capito said she has also raised the issue with Shailen Bhatt, Biden’s nominee to head the highway administration.

States Seek Flexibility

While the department has emphasized that states will be given discretion to come up with their own goals, Wriston and the head of an association representing state transportation officials also objected to the Transportation Department’s proposed emissions rule.

Wriston said that he feared that if his state set goals for reducing emissions on its roads, “I'm going to have to move that needle over time or I'm gonna get a penalty somewhere.”

He also said he remains concerned about what requirements might be coming from the Transportation Department over the use of infrastructure dollars after Pollack’s guidance.

“If I need to add a sidewalk arbitrarily to a bridge whether I need it or not, then I have to go back to the design and literally redesign the steel that holds that bridge,” he told the committee.

Jim Tymon, executive director of the American Association of State Highway and Transportation Officials, said that while states are divided over the proposed rule, his organization had opposed a similar idea by the Obama administration and has “concerns” about the new proposal.

“Every state in the country wants to do everything they can to reduce greenhouse gas emissions, but state DOTs are probably limited in how they can impact this reduction specifically,” Tymon told the committee.  

Tymon said the highway administration has not been giving states enough flexibility to move funds from one transportation program to another. “Several states had asked for the ability to transfer funds,” he said. “Some were told, ‘yes,’ some were told, ‘No.’ Some were told, ‘yes,’ but then were sent a stern letter saying that they shouldn't do it.”

One area where states will need more leeway to implement the infrastructure law, Tymon said in his written testimony to the committee, will be in building electrical vehicle charging stations. For example, he cautioned that installing too many chargers in some very rural areas could require costly grid upgrades for stations that will be underused.

Tymon also said state highway administrators are worried about projects, particularly the construction of EV charging stations, being delayed by a provision in the infrastructure law requiring the use of materials made in the U.S.

The Transportation Department in May granted a 180-day waiver on the Buy America requirement. But Tymon said state transportation officials are still worried the materials they need will not be available domestically. 

He said the waiver should be extended until the department and the White House assess whether there are enough American-made materials to meet demand.

Upbeat Outlook for Many Projects

Sen. Tom Carper of Delaware, the Democratic chair of the committee, told the officials, though, that they should take comfort in Bhatt’s nomination, noting that he has served in top state transportation jobs in Colorado and Delaware. “He has sat where you are,” he said.

Despite the concerns, state and local officials praised the infrastructure funds Congress is sending their way.

Tucson, Arizona Mayor Regina Romero, a Democrat, said the money would help her meet her goal of making her city more equitable and resilient to the changing climate. Romero said the city will be applying for funds for projects like extending its bus rapid transit system.

“We will improve the quality of life for Tucsonans who have lived with safety risks, heavy trucks in their neighborhoods, few options for non-motorized travel and separation from other neighborhoods,” she said. 

Romero also said the infrastructure law will add to the $1 million the city is already spending to address polyfluoroalkyl substances, or PFAS, that have contaminated 10% of its water supply. The widespread class of chemicals, which has turned up in water around the country, has been used to manufacture products like nonstick cookware, raincoats and in fire fighting foam.

“The Colorado River is experiencing an unprecedented drought,” Romero said. “This makes us increasingly reliant on our groundwater supply that is being polluted by PFAs.”

Nicole Majeski, secretary of Delaware’s transportation department, said the state will use its infrastructure dollars to find ways to protect its infrastructure from climate change.

“As the lowest lying state, Delaware is seeing firsthand the effects of climate change and sea level rise. We are increasingly seeing roads in our coastal areas overtopped with water, not just during significant storm events, but due to tidal flooding on sunny days,” she said.

Majeski also emphasized making the state’s roadways safer. The state had 139 fatalities on its roads last year, the highest in 15 years. The 109 deaths it has seen thus far this year is 20% higher than at the same time last year.

“Over the next six years, we will invest hundreds of millions of dollars in projects across our state to improve safety for all modes, including our most vulnerable users, pedestrians, bicyclists, and motorcyclists,” she said.