Last week marked the one-year anniversary of the Bipartisan Infrastructure Law (officially the Infrastructure Investment and Jobs Act). The BIL was not only a historic federal commitment to improving the nation’s infrastructure, but it also represents a major bipartisan achievement.
The White House marked the anniversary by releasing new figures on the amount of BIL funding made available so far—$185 billion—and new map showing the nearly 7,000 projects that have been awarded grants. Obviously, these are big numbers, but they raise some important questions. Is the administration on track in implementing BIL? Are there still challenges to overcome? What should we expect in the law’s second year?
To help answer these questions, BPC reached out to five experts whom we interviewed in January of this year, as BIL implementation was just beginning. All five served at one time or another in the federal government overseeing infrastructure programs. We asked them four key questions about the administration’s progress. Click on the takeaways below to see quotes from each of the experts.
1. One year into BIL implementation, many programs have been launched and billions of dollars have gone out. But there is more to do: some programs are still awaiting NOFOs or guidance, and various studies and pilots have yet to be launched. Based on your experience implementing infrastructure programs, how would you assess the administration’s progress to date?
“Given the enormity of the bill, and the need to develop guidance for so many new programs, the administration has done a remarkable job. They published important timelines for issuing the guidance and have focused on meeting those timelines, which in many cases meant an incredibly quick turnaround.” – Jane Garvey, former FAA Administrator; former FHWA Acting Administrator and Deputy Administrator
“It is as good as can be expected with so many new programs…Not only do they have to establish new programs and new guidance, they also need to add whole teams of new people to implement them, in this economy where hiring is incredibly difficult and the labor market is incredibly tight.” – Beth Osborne, former DOT Acting Assistant Secretary and Deputy Assistant Secretary for Transportation Policy
“Standing up a new grant program is very difficult. Federal agencies have done a good job getting these new programs stood up and putting out the NOFOs. They also have established websites to make information publicly available.” – Susan Bodine, former EPA Assistant Administrator
“Speaking as someone that has implemented a bill previously, there’s a tremendous amount of effort and work needed to get the process moving. It cannot happen overnight. However, the machinery is starting to move now, the money is beginning to flow.” – Jim Ray, former DOT Senior Advisor
“I think the general themes of the program are playing out, with an emphasis on resilience, sustainability and equity. I applaud the efforts to date, I think they are moving along with the specific regulations and outlines for the new programs—like the Reconnecting Communities program, which I think is a big initiative. At this point I’m pleased with where they are, though these programs, especially the new ones, take some time.” – Rodney Slater, former DOT Secretary and FHWA Administrator
“It is accurate to say the billions “have gone out” only because of the significant funding provided for existing allocation programs, like the Highway Trust Fund and the EPA Clean Water and Drinking Water State Revolving Loan Funds…. For the new grant programs, most of the funding has not yet gone out.” – Susan Bodine
“The downside of course is that the new programs are the ones bringing all the promise for change, but they will be the ones implemented last, with the least time to show their impact before the next authorization.” – Beth Osborne
“Usually much of the money moves pretty quickly…When it comes to highway formula money and transit to a degree, much of that is moving through a formula process directly to the states or directly to transit properties and it moves pretty quickly on an annual basis—so that process is on its way.” – Rodney Slater
“States and municipalities are still in the planning stages for many of these new programs. Many of the best projects that will come out of this bill are still in the design stage. So there is much more to come in the next few years and I think the momentum we have right now at the federal and state levels is really important.” – Jane Garvey
“For example, under the CWA and the SDWA, after receiving SRF funding from EPA states have one year to attach funding to a project. Under DOT’s Bridge Infrastructure program, FY 2022 funds must be obligated by September 2025. As a result, we have not yet seen the ‘on the ground’ impact of the BIL funding.” – Susan Bodine
“One of the most exciting areas of opportunity has been broadband/fiber. At Meridiam, we have worked closely with Mayor John Hamilton of Bloomington, IN, a pioneering champion for fiber in his community and we’re seeing this all over the country. There is a high degree of activity around fiber particularly with regard to the Affordable Connectivity Program, and that’s been encouraging to see. Cities are going to be increasingly important in implementation, working with their state counterparts to be a key driver in implementing and delivering on these new programs.” – Jane Garvey
2. One of the themes that emerged from the expert Q&A is that successful BIL implementation depends on federal agencies effectively coordinating with each other so that projects can proceed as quickly and efficiently as possible. Have you seen such coordination happening, or are agencies still operating within their own silos?
“I have seen evidence of coordination, most recently the Thriving Communities technical assistance offering, which was coordinated between DOT and HUD and with another technical assistance program at EPA. One of my concerns is that we love to complain that the agencies don’t coordinate, but the real silos are at the congressional level. Their committee jurisdictions—the Senate has four committees of jurisdiction for transportation—lead to siloed program writing. It’s not fair to complain when the agency is following the requirements as written in the law; we really need to deal with the silos that are built into the law.” – Beth Osborne
“In my view, there has been deliberate and effective coordination between the federal government and the states, led by Mayor Landrieu and his team. Just as agencies are setting up new processes and programs at the federal level, the states are doing comparable work at the state level to prepare to implement these programs. My colleagues and I have participated in several roundtables with Mayor Landrieu’s office and state offices, and the coordination among them has been recognized and effective.” – Jane Garvey
3. Another theme from the expert Q&A was the importance of clear federal guidance on issues like equity and resilience. Has the administration offered adequate guidance and technical assistance, particularly to smaller and disadvantaged communities, on how to use BIL funding for these purposes?
“Much of the agency guidance has been clear, while also offering flexibility to allow communities to address some of their particular issues surrounding equity and resilience. Through the Build America Bureau, DOT has offered case studies and technical assistance and I would encourage them to expand that even more. The Build America Bureau is a unique position to educate and provide best practices and this is a critical role of the federal government to support local communities.” – Jane Garvey
“[With regard to water infrastructure funding] EPA has caused confusion by attempting to direct the spending of state formula funding by suggesting conditions that are not authorized by law. For example, EPA suggested that states should change their intended use plans and priority lists to emphasize disadvantaged communities to meet the administration’s Justice40 goals. However, within the eligibility criteria, the statutes leave SRF funding decisions to the states… Further, amid calls for making race an express factor when making funding decisions and uncertainty about the legality of such an approach, the administration’s own EJ screening tool is not finalized.” – Susan Bodine
“Local communities do not have a lot of access to federal funds. The guidance is mostly aimed at state DOTs, as the law requires. It puts USDOT in a difficult position, where they have to give direction to localities that they do not fund directly, about how to use funding that they may never access, since it goes through the states. We may need to think more about how states are expected to support small and disadvantaged communities, though there’s nothing in the law that requires that now.” – Beth Osborne
“I think the key really is, if you’ve got the resources, making sure that you get outside of Washington, working with state and local partners and stakeholders to identify model projects. When I was at DOT, I met with many state and local officials and we learned about how the bill could apply better, and what we gained was greater insights about the applications of the law. The current administration has done a lot of that as well and I would encourage the administration to do as much of that as possible. The real worry is that so many people feel so distant from politics and the benefits of policy, that you have to go to where they are.” – Rodney Slater
4. What would you recommend the administration focus on during the second year of BIL implementation? Have any concerns arisen during the first year, and if so, how would you address them?
“When you get around to reauthorization the most important thing is to keep the new provisions in place if they have proven themselves worthy. So they have got to test those policies as they invest in infrastructure, and what they’ll have when this bill comes up for reauthorization is those examples to show that it was a worthy effort and that it makes a difference. If you don’t have that, it’s very easy to go back to viewing infrastructure as concrete, asphalt, and steel. And that misses out on a lot of opportunities. But I can tell you, with this new Congress, you’re going to have people starting to think about that new reauthorization cycle next year, which is good because you have to work through a lot of issues.” – Rodney Slater
“I would encourage the administration to focus on regulation streamlining. The regulatory framework governing approvals and permitting still takes too long—implementing the streamlining provisions that Congress set out in the IIJA could help expediate this.” – Jim Ray
“What I would focus on in the second year is the policy changes that are needed for them to meet the promises they made when the IIJA passed…. For example, on carbon, USDOT has issued a rule requiring transportation agencies to measure the GHG that comes from transportation and set targets for reducing it. But they could also require transportation agencies review the accuracy of their past modeling to make sure the benefits they expect are likely to materialize… Why not also require them to measure induced demand to ensure we are accounting for all the likely GHG? There’s a lot of very old dusty rules and regulations that could use updating with or without the IIJA. There’s so much buried in the rules that they could do better on, but the focus has been on the money. Updating these regulations has been shunted to the side, and I hope they get on these issues as soon as possible.” – Beth Osborne
“Agencies will face significant oversight from both Congress and their Inspectors General. They need to be very careful when selecting projects under their direct grant programs to avoid the appearance of cronyism or political motivation. Also, agencies need to be very careful about using racial preferences for allocating funds, at least until the Supreme Court decides the UNC and Harvard cases on use of racial preferences in university admissions. For example, EPA’s EJScreen tool includes race as a factor. However, EPA does not use that tool to allocate funds. In contrast, DOT has recommended that applicants use EPA’s EJScreen when applying for the new Reconnecting Communities grants.” – Susan Bodine
“There’s still a tremendous amount ahead of us. The biggest challenges continue to be around execution. We must continue to ask ourselves, are we doing all we can to implement the programs as quickly, as effectively as possible? What can we do to streamline the processes? Both the public and private sector need to continue to implement the processes as quickly and effectively as possible.” – Jane Garvey
“Any attention they can give to P3s would be very important because that is so new, and I think that holds the key to accessing new resources, and so they really need to test that to the degree they can.” – Rodney Slater
The experts interviewed for this post include:
- Susan Bodine, Partner, Earth & Water Law
- Jane Garvey, Global Chair, Meridiam
- Beth Osborne, Director, Transportation for America
- Jim Ray, Corporate President, Advisory, HNTB
- Rodney Slater, Partner, Squire Patton Boggs
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