October 19, 2018 | Articles
By T. Peter Ruane
The “death” of the Trump infrastructure package has been widely pronounced by the chattering class. The obituary writers have, however, missed the important reality that the underlying goals of the initiative are in fact moving forward.
A significant component of the administration’s infrastructure plan is to remove regulatory burdens and hurdles hindering the delivery of transportation and other infrastructure projects. This part of the president’s agenda is surging full steam ahead.
President Trump signed an Executive Order (EO) last August calling for a two-year permitting deadline. The EO establishes a goal of identifying one federal agency to be the point of contact for each project’s regulatory approval instead of the dysfunctional agency hopping project sponsors currently suffer with the status quo.
The president also directed all federal agencies to establish task forces to identify regulations in need of modification or outright repeal.
These developments may not earn national headlines, but they are certainly meaningful to the transportation construction industry.
While the president has acknowledged his $1.5 trillion infrastructure investment plan—that relies primarily on non-federal resources and financing—is not likely to advance during 2018, Republicans and Democrats continue to demonstrate they support increasing infrastructure investment.
The FY 2018 appropriations process—finalized in March—delivered a total of $6.5 billion in federal transportation investment above already authorized amounts. The biggest winner of this boost was the federal highway program, which received $2.5 billion on top of the $900 million increase directed by the 2015 FAST Act. Airport infrastructure, public transportation and intermodal grants also received significant increases.
The House and Senate are currently working on FY 2019 transportation funding bills that continue this trend. The House is proposing an additional $4.25 billion in highway investment, and the Senate is pushing for $3.3 billion on top of the FAST Act’s $1 billion bump. Both proposals again would provide additional resources for transit, airport and other transportation improvements totaling almost $7 billion.
The boosts stem from a two-year budget agreement reached between bipartisan leaders of the House and Senate and President Trump in February that, among other things, calls for a minimum of $10 billion a year additionally in FY 2018 and 2019 for infrastructure investments.
Congress is also expected to approve a multi-year reauthorization of the federal aviation programs by the end of this year. Both the House and Senate proposals would authorize increased airport infrastructure investments.
The good news is that this is real growth in federal transportation investment, which has been largely absent since the 2009 stimulus law. The bad news is that without some additional action by Congress and the Trump administration, transportation funding levels will fall back to authorized levels in FY 2020.
Furthermore, 2020 is the last year the FAST Act’s general fund transfers will be supplementing existing Highway Trust Fund revenues. That means we are looking at one of three outcomes: highway and transit spending cuts of an estimated 40 percent; more budget gimmicks; or a real trust fund revenue fix.
The opportunity to secure additional transportation infrastructure investment this year, along with the pressing need to permanently resolve the Highway Trust Fund’s revenue deficit argues for continued pressure. Anyone who tells you nothing is going to happen in 2018 needs to know the real story and consequences of sitting out the coming months.
Pete Ruane is president of ARTBA.
October 19, 2018 | Articles
By T. Peter Ruane
ARTBA President and CEO
In May 1940, at the precipice of World War II, new British Prime Minister Winston Churchill faced one of the world’s most defining moments: exploring a negotiated treaty with Nazi Germany or standing firm to fight for the ideals and freedom of a nation.
As Hitler’s army rolled through Western Europe, the British public was unprepared for the threat of invasion as Churchill’s own party schemed to replace him. The perilous moment forced Churchill to rally his country and try to change the course of history.
In the climactic scene of the current hit movie “Darkest Hour,” Academy Award winner Gary Oldman superbly channels Churchill in one of his most famous speeches to the U.K. Parliament House of Commons, saying:
“We shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.”
Churchill’s stirring oratory is no doubt one of his greatest legacies. And while this speech was obviously addressing much more dire and weighty issues, it conveys certain sentiments that can serve as inspiration and a rallying call today to the transportation design and construction industry.
2018 has the real potential to be the most consequential year in decades for our industry as the Trump administration and Congress are poised to consider a major transportation infrastructure package and a permanent revenue solution for the Highway Trust Fund. This is as “weighty” as domestic federal policy issues come, and the end result will have huge consequences for the nation’s future economic growth and competitiveness, as well as your market share.
There are at least three things you can do to help ensure our industry fights to win.
First, register to attend the May 14-16 ARTBA Federal Issues Program and Transportation Construction Coalition Fly-in, and bring others from your firm or agency with you. Having many hundreds of industry professionals fan out on Capitol Hill to meet with members of Congress will be critical to helping them understand the need for action this year!
Second, take grassroots action at the appropriate times when the call comes from ARTBA. Our Phone2Action digital platform makes it easy to send an email, a tweet or Facebook post to your senators and representative. As importantly, be prepared to distribute any “Action Alerts” internally to your company’s employees and direct them to contact their elected officials.
Third, make a major financial contribution to support ARTBA’s Transportation Makes America Work (TMAW) program to help ensure our industry has the financial resources necessary to mount aggressive, legislative and regulatory affairs, litigation, advertising and other communications advocacy initiatives on the industry’s behalf. Nearly 60 firms and state chapter associations supported TMAW in 2017. Let’s push that number even higher this year.
This legislative battle will not likely be easy or quick, but that’s to be expected in the public policy arena. Surrender should never be in our industry’s DNA. When it comes to an infrastructure package and a permanent Highway Trust Fund fix, it’s our collective responsibility to keep fighting until the job is done right!
October 19, 2018 | Articles
By Dave Bauer
ARTBA Executive Vice President of Advocacy
If you think 2017 was one of the most unpredictable years in recent political history—and it was—2018 looks to be all that and more. The dynamics that made last year so contentious remain in play, and the November midterm election to decide control of Congress will add more sharp turns and speed to this national roller coaster ride.
Those dynamics also provide opportunities to pursue a permanent solution for the Highway Trust Fund’s (HTF) revenue shortfall and a robust infrastructure investment package.
Despite non-stop chaos and fever-pitch partisanship, Republicans in 2017 passed the first comprehensive reform of the U.S. tax code in 30 years. Many doubted such a lofty goal could be achieved by a divided party with narrow majorities in the House and Senate, but GOP congressional leaders had been laying the foundation for this measure for over three years.
Passing the tax law demonstrated major policy achievements are possible in the current environment. It also removed from legislative consideration two main issues the GOP promised to tackle—health care and taxes. With uncertainty about what comes next, President Donald Trump called on Congress to act on a historic infrastructure package during his recent State of the Union address.
Trump’s plan
The Trump administration wants to leverage $200 billion in direct federal investment into a total of $1.5 trillion in state, local and private sector infrastructure investments.
Half of the $200 billion will be dedicated to an initiative that is intended to incentivize new state and local investment by allowing the federal resources to count toward a maximum of 20 percent of the projects’ total cost. A quarter of the new federal funds would be dedicated to infrastructure improvements in rural areas. The proposal will also allot funds to support what the administration calls “transformative” projects, and grow a variety of federal credit assistance and financing programs.
Three key points to remember about the Trump proposal:
• the spending would be spread over 10 years;
• it is intended to support all manner of infrastructure improvements—not just transportation; and
• it is largely project specific as opposed to existing programs that provide states and local government recurring funds via a pre-determined formula.
It should also be noted the administration is promoting the removal of regulatory burdens faced by infrastructure projects as a key component of its proposal.
While the Trump administration’s infrastructure plan likely will not address the HTF’s structural revenue deficit, the two could be joined as the measure advances through the House and Senate. The combination of a mechanism that stabilizes and grows HTF revenue and the administration’s project-focused initiative could create a comprehensive package that benefits each state while providing separate resources and tools to advance all manner of infrastructure projects.
The president has changed the debate in Washington, D.C., from how to preserve the status quo to how best to address the nation’s growing infrastructure deficit. This debate is long overdue and it is incumbent on all of us to ensure Congress and the White House knows that a permanent HTF fix be the foundation of any infrastructure package.
ARTBA’s top priority in any infrastructure package has been and will continue to be a permanent revenue solution for the HTF that supports increased highway and public transportation investment.
October 19, 2018 | Articles
By Nick Goldstein & Mark Holan
In August 1993, as the U.S. Midwest battled months-long flooding on the Mississippi and Missouri rivers, ARTBA began an even lengthier wetlands fight in Washington, D.C. The association initiated another industry first by filing a lawsuit in federal district court against the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers.
ARTBA President Pete Ruane called the suit “the first shot in a much more aggressive and strategic industry response to federal rulemaking” that impacted transportation construction projects.
“We are very concerned that no-growth advocates are attempting to use the Clean Water Act and Clean Air Act to shut down transportation construction,” Ruane said in 1993. “We are putting them on notice that ARTBA will challenge them every step of the way—in the legislative and regulatory arenas and in the courts of law and public opinion.”
At issue in the case was the legal definition of “discharge of dredged material” caused by earthmoving equipment in wetlands development decisions, and whether the agencies could regulate “incidental fallback” to require a permit under the Clean Water Act. It took five years in court, but ARTBA, joined by other industry partners, finally prevailed against the two federal agencies.
“This case was never about wetlands regulations of construction agencies, but the extent to which certain federal agencies try to overstep their legal authority,” Ruane said in early 1999.
In 1993, the association also filed suit against the EPA when the agency tried to broaden the transportation conformity process to penalize areas which were meeting federal standards. The agency literally wanted to punish areas for doing nothing wrong. ARTBA stepped in on behalf of the industry and stopped EPA in its tracks, forcing the agency to settle and drop the policy.
From there, ARTBA continued to be a force protecting the industry. In 1999, the association brought together a powerful coalition of construction industry allies under the umbrella of ASET, the Advocates for Safe & Efficient Transportation.
ASET fought and won multiple legal battles—in Atlanta, Baltimore, Sacramento, Las Vegas and Salt Lake City—and opened up major new opportunities for legal advocacy.
In fact, the ASET lawsuit in Salt Lake City resulted in a 2002 precedent-setting federal appellate court ruling that said construction associations have a legal right to a seat at the table in environmentally-based litigation seeking to stop regional, state or local transportation plans. As a result, the Sierra Club, which had filed the suit, was required by the court to reimburse ASET a modest amount for its legal expenses, as you can see. It was the first, and probably the last, time the Sierra Club would make such a contribution!
Over the past quarter century, ARTBA has been the only national industry organization in the U.S. to exclusively focus its legal advocacy activities on helping ensure that approved state, regional and local transportation plans and projects move forward expeditiously.
ARTBA has invested more than $1.5 million in such litigation on the industry’s behalf. The return: $58 billion in U.S. transportation projects have moved forward after being challenged by government agencies and no-growth activists.
In the most recent case, decided at the end of 2017, ARTBA helped to secure a federal appeals court decision to overrule a lower court ruling blocking the nearly $6 billion Maryland Purple Line light-rail project, one of the nation’s most high profile transit public-private partnerships.
ARTBA told the appeals court that prohibiting the 16-mile line in the Washington suburbs was an abuse of the National Environmental Policy Act (NEPA) and posed grave risks to future transportation projects. The ruling provided a clear notice that NEPA is not intended to be used as a tool to endlessly delay critically needed transportation infrastructure.
Among other notable legal victories on the industry’s behalf since 1993, we:
• Beat back a proposed injunction to stop dozens of road projects in California, setting potential legal precedent for other similar cases across the nation.
• Obtained in 2000 the first-ever federal court decision that prevented the Sierra Club and its allies from challenging a regional transportation plan under the “citizen’s suit” provision of the Clean Air Act.
• Mounted a successful 2013 defense of Virginia’s public-private partnership (P3) enabling legislation.
ARTBA’s legal program has five key components that have driven the results.
First, when appropriate, the association initiates litigation as a party plaintiff, taking on difficult cases that others might be reluctant to file or that no single organization or business could fight alone, head-to-head against government agencies and/or well-funded project opponents.
Second, ARTBA issues “amicus curiae” briefs to present compelling legal arguments and policy perspectives that often surpass the argumentation that lawyers for the involved parties are able to provide. ARTBA “friend-of-the-court” briefs serve as a valuable tool in persuading courts about the integrity of the transportation planning and approval process and the resulting safety, mobility and economic benefits that come from highway and bridge improvement projects.
Third, we file detailed issue briefs and public comments with federal and state regulatory agencies on environmental and business-related issues that might adversely impact transportation development. ARTBA ensures that a reasoned voice is heard on behalf of transportation development proponents.
Fourth, the association features a media outreach program to ensure that the views of transportation advocates are accurately portrayed in the general, business and construction media.
Fifth, ARTBA conducts seminars, an annual one-day legal and regulatory forum, and produces reports and publications to keep its members, the legal community and the media informed of litigation and regulatory developments that impact transportation development in the United States.
The flood of regulatory and anti-growth legal challenges to transportation design and construction industry projects never recedes. That’s why we’ll continue to need the financial support of interested firms and executives to ensure we have the necessary resources to continue the fight for the next 25 years. Contact Nick and he’ll explain how you can become a leader in our legal advocacy program.
Rest assured that we will continue to have the industry’s back in the legal arena because true to our mission, ARTBA not only grows, but protects, the transportation construction market.
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Nick Goldstein is ARTBA’s vice president of legal and regulatory issues.
Mark Holan is ARTBA editorial director.
October 19, 2018 | Articles
T. Peter Ruane
ARTBA President & CEO
In this column back in the May-June issue, I tried to separate fact from fiction about news relating to the looming infrastructure package and other federal transportation priorities—all of which were coming in the backdrop of heated congressional debates about repealing the Affordable Care Act and President Donald Trump’s FY 2018 budget.
As it related to a Highway Trust Fund (HTF) fix, I noted we were working with a “clean slate” and that there was growing interest in Congress to address the situation.
Fast forward a few months. Congress grappled with and ultimately failed several times to change national healthcare legislation, then took a six-week recess. Hurricanes Harvey, Irma and Maria devastated Texas, Florida, Puerto Rico, respectively, and rightfully consumed additional legislative time as Congress considered emergency assistance to aid recovery efforts. The ongoing crises with North Korea, Iran, Syria, etc. are also still prominently on the radar screen.
Nevertheless, House and Senate leaders are focused on trying to score one major domestic policy achievement in coming months: tax reform. Trump Administration officials and congressional leaders Sept. 27 announced the broad concepts in their tax plan.
While the primary focus of both chambers is currently to reduce tax rates and simplify the code, many groups, including ARTBA, believe tax reform remains the most appropriate legislative vehicle for permanently addressing the HTF’s revenue shortfall. All trust fund revenue enhancements over the last 30 years have come as part of a broad tax or budget measure.
Accordingly, House Highways & Transit Subcommittee Chairman Sam Graves (R-Mo.) and Ranking Member Eleanor Holmes-Norton (D-D.C.) sent a Sept. 28 letter to tax reform leaders supporting inclusion of a HTF fix as part of tax reform. It reminded leaders of the June 12, 2017, letter that 253 bipartisan members of the House signed asking for the same thing. In addition, House Ways & Means Committee Chairman Kevin Brady (R-Texas) recently said he was “open to” including a revenue stream in tax reform.
Given the ongoing interest in Congress and President Trump’s prioritization of upgrading the nation’s infrastructure network, it is now incumbent upon all of us to keep the heat on lawmakers. When you talk to members of your congressional delegation in coming weeks, the message is simple: enact a stable, growing, user-based and permanent HTF revenue stream to support surface transportation improvements. Working together, we can make real progress.
