Congress Passes $1.2 Trillion Bipartisan Infrastructure Legislation

November 10, 2021

After passage in both houses of Congress, the highly-anticipated $1.2 trillion infrastructure legislation package, more commonly referred to as the “Infrastructure Investment and Jobs Act” (“Act”), has headed to President Biden’s desk for approval. The President has announced that he will sign the bill on November 15, 2021, in a bipartisan bill signing ceremony. The Act will provide key funding to rebuild and modernize the nation’s roads, bridges, public transportation, broadband, and other energy and resource infrastructure needs.

Not only would the Act provide funding for several “shovel ready” projects in California and elsewhere in the country, it would also fund many other infrastructure projects that require significant planning, engineering and design, including but not limited to permitting and environmental review strategies under the National Environmental Policy Act (“NEPA”), the Clean Water Act, the Clean Air Act, the Endangered Species Act, and the California Environmental Quality Act (“CEQA”). Further, these projects are very likely to involve contaminated properties, and the Act also includes funding provisions for cleanup of such contaminated properties.

Background Information and Key Provisions of the Act

In June 2021, President Biden signed off on a bipartisan agreement to allocate trillions of dollars in infrastructure improvements across the country. The agreement proposed to spend $973 billion over five years – totaling $1.2 trillion over eight years – on infrastructure projects.  Ten senators from both political parties as well as three White House officials spent weeks negotiating the agreement to propose to Congress in late June.

On August 10, 2021, the Senate passed the Act with a vote count of 69 to 30. Its passage followed a week of debate on amendments and tension along party lines, especially concerning what is considered “core infrastructure,” and sources of funding. After months of being stalled in the House of Representatives, on November 5, 2021, the House approved the Act with a 228-206 vote.

A summary of some of the key provisions of the Act is provided below; however it is not an exhaustive list of the funding categories in the over 2,000-page Act.

Physical Infrastructure Improvements

• Roads and Bridges – About $110 billion is allocated for roads, bridges, highways, and surface transportation projects, including $40 billion of new funding for bridge repair, replacement, and rehabilitation, and around $16 billion for major projects that are too large or complex for traditional funding programs. According to the White House, one in five miles of the United States’ highways and major roads and 45,000 bridges are in poor condition, requiring repairs, rehabilitation, and rebuilding. The investment aims to repair and rebuild the roads and bridges “with a focus on climate change mitigation, resilience, equity, and safety for all users, including cyclists and pedestrians. “

• Transit and Rail – About $39 billion would be allocated to repair public transit, and $66 billion in passenger and freight rail. These transit funds are intended to be allocated to modernizing bus and rail fleets and increasing access to communities that currently lack public transportation options. The rail funds could eliminate Amtrak’s maintenance backlog and increase railway service areas outside the Northeast and mid-Atlantic regions. The package includes $12 billion in partnership grants for intercity rail service, including high-speed rail.

• Internet Upgrade – About $65 billion is intended to improve broadband internet access and ensure access to reliable, high-speed internet.

• Airports and Ports – About $17 billion is allocated to improving ports and $25 billion to airport improvements. The intent is to allow for reduced congestion and emissions and to promote electrification and utilization of other low-carbon technologies.

Focus on Clean Energy

The Act provides a roughly $73 billion investment in upgrading power infrastructure such as new transmission lines and the expansion of renewable energy. This funding will also promote investment and research in electricity distribution technology. It further commits $7.5 billion funding to zero- and low-emissions buses, ferries, and vehicles, and another $7.5 billion would go to building a nationwide network of plug-in electric vehicle chargers

Water Improvements

The Act invests over $50 billion in water infrastructure improvements to protect against droughts and floods, and weatherization technology aimed to increase the resilience of water systems. Another $55 billion is invested in advancing clean drinking water – the Act would replace all of the nation’s lead pipes, and contribute to addressing “forever” contaminants like per- and polyfluoroalkyl substances (“PFAS”). Earlier in October, Biden Administration issued a PFAS Strategic Roadmap that outlined various actions that the U.S. Environmental Protection Agency will take between 2021 and 2024 regarding PFAS,  including developing a Notice of Proposed Rulemaking to designate perfluorooctanoic acid (“PFOA”) and perfluorooctane sulfonate (“PFOS”) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act. As reported previously by Downey Brand, even the State of California’s Office of Environmental Health Hazard Assessment (OEHHA) has been taking steps to regulate PFAS and released draft public health goals for PFOA and PFOS in drinking water earlier this year.

Environmental Remediation

The Act provides $21 billion in environmental remediation investment, including Superfund and brownfield sites, abandoned mines, and cap orphan gas wells.

Analysis

The Act provides key funding opportunities for those with infrastructure projects across a wide variety of industries, including transportation, telecommunications, energy and water. The Act focuses and creates new opportunities, not just on traditional infrastructure projects such as roads, tunnels, and bridges, but also on new technologies such as electrification technology, broadband infrastructure, and water. As stated above, these investments will have their own permitting and environmental considerations, including triggering NEPA and CEQA requirements. Those with infrastructure projects should carefully monitor upcoming developments as this Act may assist with projects pending approval and upcoming applications. For assistance in understanding how the Act may impact your business, industry, or project both in the short-term and long-term, please feel free to contact attorneys in Downey Brand’s Infrastructure Practice Group to help you understand the Act’s implications.