The Infrastructure, Investment & Jobs Act of 2021: What's In It For You? (Part VI: Implementation and Input Update)

This is the sixth installment in a multi-part series of client Alerts that break down the Infrastructure Investment and Jobs Act (the “IIJA”).  The IIJA provides needed funding for many infrastructure programs, including, but not limited to, transportation infrastructure, electric vehicles, water and energy infrastructure, broadband, resiliency, and environmental remediation.  It is the most significant bipartisan legislation enacted in decades to invest in the nation’s infrastructure.  

Over three months have passed since the IIJA, also known as the Bipartisan Infrastructure Law (“BIL”), was signed by President Biden.  Federal and state policymakers and administrators have been taking important steps to implement this groundbreaking investment in the nation’s infrastructure.  Agencies have already released significant funding, have provided advice on how to prepare for this funding, and have started outreach to solicit further input from the BIL’s many stakeholders.  

While the Biden Administration has taken steps to implement the BIL expeditiously, it has also made clear that it will take the necessary time to ensure that the law is implemented wisely.  At a recent White House Briefing, White House Infrastructure Implementation Coordinator Mitch Landrieu stated that the scale of the investment is larger than anything the country has seen in generations and that the law’s funding should be viewed as a long-term investment.  Mr. Landrieu went on to say “we’re talking about how to do it with accountability and transparency — on time, on task, on budget, spending taxpayer dollars both wisely and well…. But I want to level set: This infrastructure work in general is not a one-time economic stimulus.  It is not a race to see how many ribbons we can cut before the end of the year.  Doing this is going to require balance.  It’s going to require order.  We are definitely going to go fast, but we are not going to hurry and we are going to get it right.”  

BIL stakeholders can take from these remarks and this approach that agencies are moving forward, that opportunities springing from this law will take some time to develop, and that there is time to participate in the policy choices that will shape these opportunities. 

Funding Released / Steps Already Taken.  Many of the initial implementation steps have been described in various official summaries.  Among the major highlights of these steps, excerpted below, are: 

• Nearly $100 billion has been announced to states, territories, Tribes and local governments from formula and competitive programs for roads and highways, bridges, ports, airports, and water systems.
• The U.S. Department of Transportation (USDOT) and Federal Highway Administration (FHWA) announced $27 billion in funding to replace, repair, and rehabilitate bridges across the country over the next five years, including many locally-owned “off system” bridges.
• The U.S. Army Corps of Engineers announced that it will invest more than $14 billion of funding for over 500 projects across 52 states and territories.  These key projects will strengthen the nation’s supply chain, provide significant new economic opportunities nationwide, and bolster our defenses against climate change.
• USDOT awarded $1 billion in Rebuilding American Infrastructure with Sustainability and Equity (RAISE) grants to invest in 90 major projects across 47 states funding that will be boosted by an additional $7.5 billion in the Bipartisan Infrastructure Law.
• The Federal Aviation Administration (FAA) at USDOT announced $3 billion for 3,075 airports across the country that can use investments to upgrade critical infrastructure.

In addition to these steps, the White House released a list of 25 competitive sources of funding that are available or soon-to-be-available to local governments.  This list of 25 sources totals well over $50 billion in funding opportunities, including, but not limited to, $7.5 billion in Rebuilding American Infrastructure Sustainably and Equitably (RAISE) Grants ($1.5 billion in RAISE funding was made available on January 28, 2022); $2.25 billion in Port Infrastructure Development Program Grants ($450 million in applications for these grants was made available in February 2022); and $5 billion in Safe Streets and Roads for All Grants (applications projected to open in May 2022).  The list also includes other grant programs with later application dates, such as $1 billion in Middle Mile Grants Program for broadband infrastructure (applications anticipated in the second quarter of 2022) and the $3 billion Smart Grid Investment Grant Program (anticipated to be open by the end of 2022).   

Further, on February 10, the US Departments of Transportation and Energy announced that almost $5 billion will be available under the National Electric Vehicle Infrastructure (NEVI) Formula Program.  According to a press release issued by the FHWA, the funding will be available over 5 years to “help states create a network of EV charging stations along designated Alternative Fuel Corridors, particularly along the Interstate Highway System.  The total amount available to states in Fiscal Year 2022 under the NEVI Formula Program is $615 million…. A second, competitive grant program…will be announced later this year.”

States, including our home state of Massachusetts, have begun to allocate some of the BIL funding.  In February, Massachusetts issued a list of 146 bridge projects that will be funded under an anticipated $3 billion bridge program that includes both BIL funding and funding under the Commonwealth’s Next Generation Bridge Program.  As part of the announcement, Governor Baker’s office noted that “[o]ver 5 years, the BIL will deliver approximately $9.5 billion in total funding to the Commonwealth including $5.4 billion in highway formula funds, $2.2 billion in MBTA formula funds and $591 million in Regional Transit Authority (RTA) formula funds, as well as $1.4 billion in both formula and discretionary funds for environmental work.  The new law will also allow all 50 states to compete for a portion of an additional $110 billion through various discretionary transportation funding.…”  At that time, Massachusetts Transportation Secretary Jamey Tesler announced that within a period of weeks legislation will be filed to provide funding needed to match the new federal funding.

White House Advice to Stakeholders. The White House has also provided advice to states, communities, Tribal governments, community stakeholders and others on how to prepare to apply for and receive federal infrastructure funds.  The advice included the following seven action items: 

1. “Prioritize your community’s capital needs and develop a project pipeline – taking time to think about the projects previously considered impossible due to lack of funding or regional coordination.  This is a once-in-a-generation funding opportunity that will require bold, inclusive thinking. 
2. Use the forthcoming Bipartisan Infrastructure Law Guidebook to identify federal funding streams to target. 
3. Ensure all transit, railway, road, highway, and bridge projects are a part of your MPO’s Transportation Improvement Plan. 
4. Begin mapping sites for electric vehicle and alternative fuel charging stations. 
5. Inventory and map the lead pipes in your city. Read through the Biden-Harris Lead Pipe and Paint Action Plan here for additional federal resources for this effort. 
6. Work with your state’s broadband agency to ensure your city or region’s needs are appropriately mapped and inventoried. 
7. Establish relationships with the regional offices for key federal agencies, who can help direct you to resources and provide technical assistance.”

White House Implementation Guidebook and Infrastructure School Webinars.  On January 31, 2021, the White House issued a Guidebook to the Bipartisan Infrastructure Law for State, Local, Tribal, and Territorial Governments, and Other Partners which will serve as a supplement to the above advice.  The White House release states that the “guidebook is a roadmap to the funding available under the law, as well as an explanatory document that shows direct federal spending at the program level.  To this end, the White House has also published an accompanying data file that allows users to quickly sort programs funded under the law by fields like agency, amount, recipient, or program name.  The guidebook contains 12 chapters grouping Bipartisan Infrastructure Law programs by issue area.  Each chapter contains a cover note explaining how to get ready to receive this funding, and these memoranda also identify additional resources our partners can and should utilize to prepare, while the federal government gets ready to distribute Bipartisan Infrastructure Law funds from new and existing programs.”  In February, the White House also launched a series of webinars that go in depth into each of the 12 chapters of the Guidebook.  Some of the webinars scheduled in March focus on Roads, Bridges, and Major Projects, Clean Energy and Power, and Broadband.

Opportunities to Provide Input.  In addition to heeding the White House advice on implementation steps, stakeholders may also want to review opportunities to provide comment to the agencies implementing the BIL.  Below is a list of some of the input opportunities and comment periods that have already been issued (some with near term deadlines or deadlines that have just passed).  Stakeholders should take from these outreach examples that many opportunities will arise over time to provide input on how these funds should be distributed. 

• Shortly after the signing of the BIL, the U.S. Department of Transportation’s Federal Highway Administration (FHWA) announced that it “launched a new website designed for transportation agencies, communities and stakeholders interested in learning more about the Infrastructure Investment and Jobs Act (also known as the Bipartisan Infrastructure Law).”  On January 25, the FHWA released ten Fact Sheets explaining aspects of the BIL.  In December, the FHWA issued a Request for Information (RFI) which did not include a comment deadline.  The notice stated that the RFI is “intended to solicit information on: (i) Potential opportunities and challenges for implementing new BIL programs; (ii) potential opportunities and challenges for implementing existing programs modified by the BIL; (iii) solutions or suggestions as to how FHWA might implement the BIL; (iv) necessity for additional guidance, FAQs, or program changes; and (v) areas requiring new and continued research.” 

• The Federal Railroad Administration has issued a Request for Information regarding the Corridor Identification and Development Program, which, according to the FRA, will “facilitate the development of new, enhanced, and restored intercity passenger rail corridors throughout the country.”  The deadline for written comments is March 9, 2022.  Pursuant to the BIL, the program must be established by May 14, 2022. 

• The US EPA has also established a website dedicated to the BIL.  On this website, the EPA provides an opportunity to send comments and questions related to the EPA and the BIL.  The website also includes a description of funding provided to the EPA and BIL fact sheets.      

• As noted in a recent Alert issued by our Potomac Law Group partner Douglas Bonner, “On January 5, 2022, the National Telecommunications and Information Administration ("NTIA") released a request for comment on how best to design and implement the broadband programs that NTIA is responsible for administering under the $1.2 Trillion Infrastructure Investment and Jobs Act of 2021, also known as the Bipartisan Infrastructure Law (BIL).  This legislation involves an historic (and record) congressional appropriation of $65 billion to finally close the digital divide to ensure that virtually all Americans have access to reliable, affordable, broadband. $48 Billion of this amount is to be administered by NTIA through several different programs.  NTIA requested public comment on various questions regarding these programs by February 4, 2022." 

• On December 6, 2021, the US Department of Energy released “a Request for Information (RFI) on technologies ready to be demonstrated that reduce carbon emissions and remove carbon dioxide from the atmosphere.  The RFI seeks feedback from industry, investors, developers, academia, research laboratories, government agencies, NGOs, and potentially affected communities (including environmental justice, Tribal, energy transition, and other communities).  The RFI follows the enactment of the Bipartisan Infrastructure Law, which includes more than $62 billion for DOE to deliver a more equitable clean energy future for the American people by, among other things, building the technologies of tomorrow…. Responses [were] due no later than 5:00 p.m. ET on Feb. 1, 2022.”

• On December 2, 2021, the FHWA requested comment on “on the development of guidance for two new electric vehicle charging station programs included in the recently enacted Bipartisan Infrastructure Law….the National Electric Vehicle Formula Program to strategically deploy an interconnected network of EV charging stations along highway corridors [and the]… Charging and Fueling Infrastructure discretionary grant program … to improve public accessibility to electrical vehicle charging and hydrogen, propane and natural gas fueling stations”.  The Comment period ended on January 28, 2022.

PLG attorneys will be keeping a close eye on BIL implementation and other relevant aspects of the program and would be happy to assist our clients in needs related to the BIL and its opportunities.