This is the fourth installment of a series of client Alerts that focus on topic areas included in the Infrastructure Investment and Jobs Act (HR 3684) (the “IIJA”) . The IIJA provides new or enhanced funding for many infrastructure programs, including transportation infrastructure, transportation technology, electric vehicles, water infrastructure, energy, western water infrastructure, broadband infrastructure, resiliency, environmental remediation, and other programs. The IIJA is being called the most significant bipartisan investment in the nation's infrastructure in decades.
This alert is an overview of important provisions in the IIJA that provide incentives for technologies that will transform the future of transportation. A key take-away here is that the enormous funding and other policy decisions will largely flow through traditional entities: federal, state and local governments and transportation agencies. These traditional entities will soon face significant increases in the volume and complexity of decisions before them. Due to both legislative requirements and practical need, we anticipate opportunities for stakeholders to engage with the decision makers in a meaningful way. Proponents that are thoughtful in developing their ideas and projects have historically had advantages in seeking opportunities and advancing policies.
The $1.2 trillion IIJA will provide innovative states, including our home state of Massachusetts, an opportunity to both address longstanding infrastructure deficiencies and take important steps to a new transportation future. Given the breadth of priorities addressed in the legislation, the U.S. Department of Transportation (“US DOT”) and state Departments of Transportation will shortly be busy making sure that the implementation of the IIJA measures live up to their promise. Although the implementation will require tremendous efforts just to complete more familiar projects such as rehabilitating scores of aging and dilapidated bridges, forward looking states will look even further into the future and determine how technology can provide answers to growing transportation problems. Autonomous vehicle technology is just one example of a technology that should be further promoted under the IIJA. Since Massachusetts Governor Baker's 2016 Executive Order and initial City approvals in 2016-17, autonomous vehicle companies have been testing and developing their transformative technologies in Boston's South Boston Waterfront. Intelligent sensor-based infrastructure, hyperloop efforts, and shared-use mobility initiatives are other examples of transportation technology that should benefit from IIJA funding, research, or other provisions.
Every day, deep thinkers and skilled researchers at institutions like the Volpe Research Center and MIT's Urban Mobility Lab are pondering how this technology can help us (and hopefully not harm us). Soon, building upon forward-looking (but sometimes not long-lasting) study efforts of the past, private, academic, and public sector leaders will more regularly need to bring all of this brainpower together help their communities reach the promise of new technology while avoiding the potential pitfalls. A near-term challenge for policymakers is to determine how the IIJA can best advance new technology that exists or is about to exist. For example, just recently, President Biden noted that some of the $17 billion designated for ports in the IIJA will be used on data sharing solutions to address the supply backlog.
The IIJA includes a number of provisions that innovative states and communities can utilize to take advantage of the economic, climate, and mobility benefits of new technology, including:
Sections Authorizing Significant New Funding and Research Capacity for New Transportation Technologies, Such as Autonomous Vehicles and “New Mobility” Shared Services
Sections Involving Emerging Forms of Transportation, such as Hyperloop Technology
Sections Focusing on Combating Transportation Caused Climate Change Through Electric Vehicle Charging, and Carbon Reduction
In addition to the new funding and research mandates for new transportation technology, the IIJA includes significant funding for electric vehicle charging activities. The ability of states to meet climate change goals is dependent upon a rapid expansion of electric vehicle charging capabilities. The potential for successful development of autonomous vehicle technologies is also closely aligned with the need to rapidly expand electric vehicle charging.
In general, the IIJA allocates $7.5 billion to enable the U.S. to expand its electric vehicle infrastructure and to further expand the use of alternative fuels in transportation including hydrogen, propane, and natural gas. More detail on these programs is provided in Part #2 of this series, “Transportation Electrification”. States and communities, and metropolitan planning organizations are among the eligible entities that can apply for this funding, which will also focus on the utilization of public private partnerships. Agencies charged with implementing these programs are already beginning to move forward. For example, the Federal Highway Administration recently issued a Request for Information regarding the implementation of two programs: the National Electric Vehicle Program or EV Charging Program which “will provide funding to the States to strategically deploy EV charging infrastructure” and the Charging and Fueling Infrastructure Program “to strategically deploy publicly accessible EV charging infrastructure and hydrogen, propane, and natural gas fueling infrastructure in designated alternative fuel corridors.”
The US DOT and its respective agencies will have an opportunity to look to the future in implementing the IIJA. They will be assisted in the gargantuan task of implementing the IIJA by a newly announced White House implementation coordinator. The IIJA funding will be released through a combination of grants administered at the federal level and funding provided directly to the states. Those involved in developing new technologies to address longstanding transportation challenges will want to engage with state and local governments, metropolitan planning organizations, transportation districts, tribes and US territories to encourage them to use funding and resources on forward-looking priorities.
Most of the initiatives in the IIJA will be administered over a five-year period. During this time, priorities may change, especially as new technologies become more developed. In the near term, many of the programs and priorities face a legislative deadline for specific actions within 180 days from enactment. Following President Biden's signature on November 15, 2021, the 180-day deadlines will arise on May 14, 2022. Some new programs, such as new grant programs, may take some time to design and administer. In a recent Office of Public Affairs release, the US DOT noted that some “new & expanded competitive grant programs in the Bipartisan Infrastructure Law (BIL) [are] anticipated to launched over the course of the next year.” Potomac Law Group attorneys will be on the watch for Notices of Funding Opportunities that are released by the US DOT and other agencies. In addition to funding, the legislation includes a number of study efforts that also come with deadlines for reports to Congress. As noted above, some of these reports will be made within one to two years.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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