Surface Transportation Authorization Bill Winners & Losers

You could be forgiven for not even realizing that Congress actually passed a transportation authorization bill last week, nearly three years after the previous one officially expired. After all, it was kind of a busy news week what with that Supreme Court decision on the Affordable Care Act and all. Of course it may also have been that despite the months of hard fought negotiations that led to the bill’s passage, the $105 billion finished product seemed less like an ultimate victory to some and more like just another step along the road. The Hill newspaper had a list this week of their winners and losers from the transportation bill debate among Washington politicos and interest groups. But how did transportation policy and all it impacts actually fare? Here’s a look at some of the transportation winners and losers to emerge from passage of the “Moving Ahead for Progress in the 21st Century Act” (or MAP-21 for short).

House Transportation and Infrastructure Committee Chairman John Mica described the benefits of MAP-21 in announcing the conference committee agreement on the legislation in a statement last week:

“The unprecedented reforms in this legislation — cutting red tape, truly making projects ‘shovel ready,’ shrinking the size of the federal bureaucracy, attracting more private sector participation, and giving states more flexibility to address their critical priorities — will ensure that we more effectively move forward with major highway and bridge improvements and put Americans back to work,” Mica said.

But as reaction to the legislation came in from across the political spectrum and the stakeholder community, it was clear that one man’s “unprecedented reform” can be another man’s “missed opportunity” or “last gasp of a bygone era.”

Winners: Program Streamlining, Sped-Up Project Delivery, State Flexibility

The legislation consolidates the number of highway programs by two-thirds and makes more resources available directly to states and metropolitan areas.

Tennessee Republican Congressman John Duncan, who chairs the House Highways and Transit Subcommittee, touted MAP-21’s provisions aimed at speeding project delivery:

“The average highway project in the United States takes 15 years from concept to completion, far more than any other developed nation,” he said. “We have got to cut the red tape and speed up these projects. This bill goes further in streamlining environmental rules and regulations than any previous highway bill.”

Under the bill, transportation projects could qualify for a categorical exclusion from environmental provisions of the National Environmental Policy Act (NEPA) in an expanded variety of ways, including if they involve repairs to infrastructure damaged in emergencies, work being done in some existing rights-of-way or if they receive a low percentage of federal funding. Stakeholders would be able to limit the length of environmental impact statement preparation to four years under another provision.

Losers: Public Oversight & Accountability, Environmental Protections

But Deron Lovaas of the Natural Resources Defense Council argues that changing NEPA rules may do damage to current project oversight and accountability over project construction.

“Project reviews are crucial not just for improving designs but for discarding harmful ones that might destroy treasured open spaces or communities,” he writes. “The conference report invites harmful unintended consequences such as putting damaging highway projects through our communities, and it could lead to more not fewer lawsuits filed by putting a thumb on the scale for an alternative proposed by a highway agency.” 

Lovaas goes on to say that the bill’s categorical NEPA loopholes may “allow projects to be built with minimal or no participation by the affected public.”

Moreover, a new report from the Regional Plan Association’s America 2050 program argues NEPA itself isn’t the sole cause of increasing delays on highway projects. The report says uneven implementation practices of state and federal agencies that unnecessarily prevent the process from running smoothly should get some of the blame too.

“Many of these delays can be attributed to a lack of communication and consensus in the pre-NEPA planning stage, administrative process bottlenecks, project management failings, or a lack of capacity among the agencies involved in the process,” the report said.

As Nate Berg of The Atlantic’s Cities blog writes in a recent post: “So, while discussions about expediting project delivery often begin with changing the NEPA law, in reality, rewriting NEPA would likely undermine environmental protections and fail to address root causes of delay. Instead, reforming the internal administrative policies, procedures, and practices currently in place to follow the NEPA law has the potential to shorten proj­ect delivery timelines while maintaining the strong environmen­tal protections that NEPA established. Even greater efficiency can be achieved by integrating environmental reviews with state and metropolitan planning requirements into a more cohesive project development process.”

Winner: The Status Quo

The legislation maintains current funding for transportation, with a slight adjustment for inflation. But it does not index the gas tax, limit spending to revenue, or transition funding to a more sustainable, user-based revenue source to ensure the future long-term solvency of the Highway Trust Fund as many hoped a new authorization bill would.

To fund the bill, lawmakers altered the way pension interest rates are calculated and set up a couple of transfers of general funds ($6.2 billion in FY 2013 and $12.6 billion in 2014) from income tax collections to the dwindling Highway Trust Fund. As Yonah Freemark of The Transport Politic pointed out in his blog post this weekend, that means “Federal transportation funding is no longer really dependent on the collection of user fees.”

But with the fund transfers that have been necessary in recent years to shore up the HTF, that has really been the case for some time. The more things change, the more they stay the same.

Losers: Transformative Change, Long-Term Solutions

While generally praising the passage of MAP-21, U.S. Chamber of Commerce President and CEO Thomas Donahue also addressed the bill’s temporary, stopgap nature.

“While we would have preferred a bill covering a period longer than 27 months and with greater funding, this is a major step in the right direction,” said Donohue. “The bigger challenge lies ahead—devising a predictable, sustainable, and growing source of dedicated, user-fee based funding to ensure we have adequate resources to maintain the world’s greatest infrastructure system for decades to come. We promise to work with members of Congress to pursue that important goal.”

James Corless, the Director of Transportation for America, a coalition of transportation, housing, business, environmental and other organizations, had even harsher words for a bill with “21st Century” in its title.

“We are encouraged that Congress will avoid a shutdown of the program,” Corless said in a statement. “Unfortunately, this last-minute, closed-door deal does little more than that. The bill ultimately looks and feels like what it is: A stopgap that is the last gasp of a spent 20th century program. It doesn’t begin to address the needs of a changing America in the 21st century.”

And T4America’s Stephen Lee Davis points out that “because this bill is only 27 months long – less time than it took to draft and pass it – the battle for the next one begins the minute this one is signed.”

Loser: Vehicle Miles Traveled System

Hopes for one potential new revenue source to fund transportation in the future were delivered a setback when the House approved an amendment from Minnesota Congressman Chip Cravaack to block any money in the bill from being used to explore a system based on vehicle miles traveled. Two federal commissions and numerous others have recommended that the nation transition to such a system since the gas tax appears to be on its last legs in the wake of increasing fuel efficiency and other factors. Cravaack however argued that such a system “would hurt rural drivers, cost a lot to implement since it would require devices in each car to track how many miles have been driven, and could impinge on privacy rights.”

The problem with Cravaack’s assessment though is that it is based on incomplete information and faulty assumptions. Although states such as Oregon have experimented with VMT pilot projects, there is so far no universally agreed upon technology or system to track mileage. Therefore it is impossible to know how such as system could impact rural drivers (or whether there could be accommodations made for those who must drive long distances regularly), how much the equipment would cost or whether privacy concerns would even be a factor. A decision to shut down Federal funding that could be used to test what so many believe is one of the only viable future transportation revenue sources seems premature and short-sighted. Or, as Oregon Congressman Earl Blumenauer (and avid cyclist) put it in a transportation bill post-mortem interview with Bike Portland, “almost impossible to defend.”   

Clarification/Revision: Cravaack's amendment was not to the authorization bill but to the FY 2013 spending bill for the U.S. Department of Transportation and other agencies.

Winner: Roads

The bill maintains the current ratio of highway-to-transit investment at 80 to 20. That’s despite significant growth in transit ridership in recent years.

Deron Lovaas of the Natural Resources Defense Council wrote in a blog post last week that the bill also ensures that more new roads will be in our future.

“It reduces the percentage of investment dedicated to repair of the highway system,” he wrote. “The final package actually undercuts current law by lowering the percentage of funding dedicated to maintenance. Highway agencies and contractors must be ecstatic, since this gives them leeway to build more sprawl-inducing highways and neglect repairs if it strikes their fancy.”

Lovaas concludes that the legislation “reads like the last gasp of a bygone era, since it turns the clock back on transportation policy to make it more highway-centric. Highway agencies and contractors made out like bandits in this bill, and our communities and environment are likely to suffer as a consequence.”

Winner: States and Communities

One of the biggest winners may be states and communities that will finally be able to make more long-term transportation plans confident that federal dollars for projects will be available. The bill will run through the end of fiscal year 2014 (just a few weeks before the next mid-term election).

U.S. Secretary of Transportation Ray LaHood writes in his Fast Lane blog this week that the bill “provides states and communities with two years of steady funding to build the roads, bridges and transit systems they need. That means jobs. With a series of extensions during the past three years, state departments of transportation were unable to plan beyond the short term. That means contractors and construction companies were unable to plan for big projects and unable to make the kind of employment decisions that put hard-working Americans back on the job. With a 27-month horizon of infrastructure planning, men and women can get back to work building the roads, bridges, tunnels, and transit our economy needs to stay competitive.”

However, while the bill covers more than two years, some point out it is not the length of previous authorization bills which extended for four years or more, providing even greater certainty.

Loser: Metropolitan Areas

The TIGER (Transportation Investment Generating Economic Recovery) discretionary grant program, which began under the American Recovery and Reinvestment Act and which has to date provided more than $3 billion in funds for road, rail, transit and port projects around the country is eliminated in the new legislation. In its place is the “Projects of National and Regional Significance” competitive grant program, which is funded at $500 million for FY 2013. But while individual communities were able to apply for TIGER grants, only states, tribal governments and transit agencies qualify under the new program.

Winners: U.S. Economy and the Construction Industry

U.S. Chamber of Commerce President and CEO Thomas Donahue assessed the importance of MAP-21 thusly: “In the near term, this legislation will save thousands of jobs in construction and related industries. In the long term, it will strengthen the nation’s economy and global competitiveness.”

Stephen Sandherr, CEO of the Associated General Contractors of America offered this: “This measure offers a much-needed lifeline for tens of thousands of construction workers trying to earn a good living and feed their families … The members of Congress that worked so hard to craft this measure understand that the benefits to our economy from infrastructure investments are too important to be undermined by legitimate disagreements over a handful of policy questions. Indeed passing this measure is a significant victory for construction workers, commuters, shippers and the economy.”

Winner: Intelligent Transportation Systems

The legislation ensures that intelligent transportation system technologies are eligible for funding within every major formula program. Funding for the ITS research program was restored to $100 million annually in the final bill (it had been reduced to $50 million in the original Senate bill).

However, a $50 million per year competitive program called the System Operations and ITS Deployment Grant Program was eliminated and replaced with a broader Technology and Innovation Deployment program to accelerate the adoption of innovative technologies across the transportation system.

Winner: National Goals and Performance Measures

The legislation directs states to set targets and incorporate performance measures into planning and programming processes to better focus spending on measurable outcomes such as reducing congestion, reducing traffic fatalities and serious injuries, improving efficiency, improving road and bridge conditions, enhancing environmental sustainability, improving freight movement and economic vitality and reducing project delivery delays.

Within 18 months of the legislation’s enactment, the U.S. Secretary of Transportation is required to promulgate rules establishing performance standards and measures for each of the goal areas in consultation with state DOTs, metropolitan planning organizations and other stakeholders. Within one year of the final rulemaking, each state will have to set performance targets that reflect the measures.

Loser: Accountability

But Transportation for America’s James Corless questions whether the bill’s efforts go far enough:

“The resulting transportation bill takes a major step backwards on accountability in how transportation funding is spent, essentially handing states a blank check without proper assurances that roads will get safer, traffic congestion will improve, people can get to work or bridges will get fixed,” he said in a blog post last week. “Americans will never agree to pay more at the pump or elsewhere until we restore public confidence and trust, and this conference report will hardly do that.”

And the Bipartisan Policy Center's Emil Frankel offers this: “While the bill that has emerged from the conference committee has been described as a significant reform of federal surface transportation programs, the test of that description will depend upon whether the new surface transportation authorization bill establishes a foundation for making better decisions about the investment of limited federal resources ... The conference committee report includes a statement of goals and elements of performance management, and these provisions of the bill can provide an important beginning for better decision-making and wiser investments in the transportation sector. The test of progress will be the full implementation of these elements of the bill and how we can build on them."

Loser: Bike/Pedestrian Projects

The bicycle and pedestrian funding language in the bill is the product of a compromise. Many Republicans wanted to see the funds slashed entirely. Instead, the bill sends 50 percent of funds for the new “Transportation Alternatives” program to the local level and 50 percent to states. State governments will be able to choose to opt out of the funding requirement.

The America Bikes coalition estimates that overall the bill slashes funding for biking and walking by an estimated 60 to 70 percent.

The Safe Routes to School program, which previously had its own dedicated pot of funding, will no longer. Such projects will be thrown into the mix of eligible projects states can choose to fund under the Transportation Alternatives program. Among the other projects eligible under the program: truck stop electrification, HOV lanes, turning lanes, and diesel retrofits.

Language in the original Senate bill that created a federal requirement for accommodation of non-motorized road users in transportation project design and planning (the so-called “complete streets” provision) was stripped out of the final version.

Kevin Mills of the Rails to Trails Conservancy writes that the bill “shrinks from the challenge of meeting America’s needs for forward-looking 21st century policy that provides balanced transportation choices and improves public health and safety, the quality of our environment and the livability of our communities.”

Winner: Ports

While the bill encourages the Obama Administration and Congress to spend all money collected through the Harbor Maintenance Tax on port projects, the language used to do so is softer than some hoped for. The final bill would direct the administration to give an annual estimate of the maintenance needs of U.S. ports and determine how much funding would be needed to make 95 percent of ports and waterways operational within three years.

Winner: Commercial Motor Vehicle Safety

The legislation includes provisions directing the Secretary of Transportation to issue regulations requiring electronic logging devices for recording hours of service in commercial motor vehicles and sets basic performance standards for the device. The bill also includes provisions to ensure that appropriate measures are taken to protect the privacy of individuals and the confidentiality of data. Also included in the final bill are several other provisions to address commercial driver safety including: driver medical qualifications, operator training, a driver’s licensing program, driver’s requirements and driver information systems.

Winner: Traffic Safety

U.S. Transportation Secretary LaHood writes that the legislation “builds on our aggressive safety efforts, including our fight against distracted driving and our push to improve transit and motor carrier safety. Whether you ride transit, travel by inter-city buses, or enjoy driving, you deserve to know that we're doing everything we can to ensure your safety and the safety of your neighbors and loved ones on America's busy transportation network. The new law helps DOT and the States continue that effort.”

The legislation directs the Secretary to study the effects of truck size and weight on highway safety and infrastructure and compile a list of existing state truck size and weight laws.

The bill also contains incentives for states to spend transportation funds on programs to detect drunk drivers, such as ignition interlocks.

Winner/Loser: Freight Policy

While the bill calls for both a national freight policy and a freight strategic plan, some are disappointed that the focus on freight does not go further. Joshua Schank of the Eno Center for Transportation told Streetsblog last week that it’s disappointing freight is not one of the core formula programs in the bill and there is no discretionary grant program for freight. He also lamented the heavy emphasis on road freight to the detriment of more intermodal projects.

The bill’s call for creation of a national freight transportation policy would include the designation of a network of 27,000 miles of roads.

States that create a freight plan that meets U.S. DOT guidelines could be reimbursed up to 95 percent of the cost if a project fits into the national freight network.

While the bill calls for the tracking of intermodal movements of freight, it does not include funding for the National Cooperative Research Program, which researches such movements.

Winner/Loser: Public Transportation

In a statement last week, the President and CEO of the American Public Transportation Association Michael Melaniphy commended conferees for reaching a final agreement.

“The bill maintains funding for public transportation through September 2014,” Melaniphy noted. “It includes improvements to keep our systems in a state of good repair; streamlines delivery of public transit projects; provides funding for new start projects and for a bus replacement and a bus facility program.”

But Tanya Snyder of Streetsblog writes that “the bill maintains current funding levels at a time when more Americans are turning to transit but cities can barely maintain their existing services. Ridership has been growing steadily for countless economic and social reasons. But transit agency budgets haven’t grown with it, and Congress, with this bill, is surrendering its chance to help struggling cities and move toward a future where Americans have more transportation options.”

Loser: Public Transportation Riders

And a union for public transportation system employees has called MAP-21 “a death blow to public transportation.”

“It not only does nothing to address the American mass transit crisis, but will make it much worse,” said Amalgamated Transit Union President Larry Hanley in a statement.

Hanley said the bill will limit public transit systems from using federal money that traditionally had been used for new construction to help pay for operations. That will likely result in fare increases for riders and more cuts in service for cash-strapped transit systems.

The original Senate bill had included language dealing with capital funding requirements for transit systems but it did not survive conference negotiations.

The legislation also did not include a provision to restore a $230 tax credit for commuters who take public transit to work. Handley said the effect of that will be to stifle public transportation ridership. Transit riders are currently allowed to deduct only $125 per month, compared to those who pay for parking, who can deduct $240 per month.

Winner: Transit-Oriented Development

MAP-21 creates a $10 million pilot program to provide grants to communities for development planning around transit stations.

Winners: Public-Private Partnerships and Tolling

Many state officials as well as organizations like the Bipartisan Policy Center, Building America’s Future and AASHTO lobbied against a provision in the Senate version of the bill that would have penalized states for using public-private partnerships to fund infrastructure projects. States that chose to lease roads to private operators would have had their Federal highway money reduced. That measure was not included in the final bill.

MAP-21 expands tolling authority, not to existing roadways as some had hoped but to more highway expansions than were previously allowed. Federal funding may be used for construction, rehabilitation or replacement of a tolled highway, bridge and tunnel facility as long as the number of toll-free non-high occupancy vehicle (HOV) lanes after construction is not less than the number of toll free non-HOV lanes before construction.  Funding may also be used to convert HOV lanes to high occupancy toll (HOT) lanes if the public authority consults with the respective metropolitan planning organization for projects in metropolitan areas and meets other requirements.

All toll facilities on Federal-aid highways are required to implement technologies or business practices that provide for the interoperability of electronic toll collection within four years of the bill’s enactment.

But Peter Samuels of Tollroadsnews writes this week that: “The big need is for the states to have the right to toll existing capacity during rebuilds and modernization. With vehicle-miles traveled per person static or declining there won't be a huge need for extra capacity, and extra capacity is difficult to make serious money from with untolled lanes right alongside.”

And Emil Frankel at the Bipartisan Policy Center offered this: "BPC has recommended that the constraints on states’ introducing new programs for tolling and user-charges on all facilities, existing, as well as new, should be reduced, and that the federal government should provide incentives to encourage such efforts. We regret that the conference committee report does not remove the restrictions on states and localities to introduce these funding innovations."

Winner: TIFIA

Loser: National Goals, Innovation

The TIFIA (Transportation Infrastructure Finance and Innovation Act) Federal credit assistance program has been hugely popular with states and heavily oversubscribed considering the limited amount of funding that has been available (it’s dedicated to “nationally or regionally significant” transportation projects, including highway, transit and rail). It has historically leveraged its $122 million annual budget into $1 billion for loans. Now the program will have $750 million in year one and $1 billion in year two to start with under an expanded program now called America Fast Forward. The program can now also be used to finance up to 49 percent of a project’s costs, up from 33 percent.

But Streetsblog editor Tanya Snyder points out that the revamped TIFIA eliminates all project selection criteria, which had been used to evaluate potential loan recipients. That, Snyder contends, makes it “completely useless as an instrument to reward and enable innovation.” TIFIA is turned into a bank with creditworthiness as the sole criteria for projects to qualify for loans and national policy goals no longer entering into the equation, Snyder writes.