A three-judge panel of the California Court of Appeal for the Third District heard oral arguments last week in the longstanding companion cases challenging the legality of AB 32’s cap and trade auctions. (California Chamber of Commerce v. California Air Resources Board and Morning Star Packing Co. v. California Air Resources Board) The questions most frequently posed by the Justices related to the nature of payments made for greenhouse gas (GHG) emission credits, a contributor in the billions of dollars to the state general fund for programs designed to reduce greenhouse gasses ...
For years, policymakers and economists around the country have been well aware that the federal gas tax is dying.
In its report to Congress, the National Surface Transportation Infrastructure Financing Commission, on which I was honored to serve, made clear that we must replace the 18.4 cent federal gas tax with other means of funding transportation in order to maintain and improve our highways, bridges and transit systems in the United States.
The commission recommended a road user charge as the most effective approach to solving this problem.
[If] we fail to address the immediate ...
On November 14, a bipartisan group of ten U.S. Senators, led by Mark Warner (D-VA) and Roy Blunt (R-MO), introduced legislation to create a new independent Infrastructure Financing Authority (IFA) to issue loans and loan guarantees for transportation, water, and energy transmission, storage and distribution infrastructure. S. 1716, titled the Building and Renewing Infrastructure for Development and Growth in Employment or BRIDGE Act, has been referred to the Senate Committee on Commerce, Science and Transportation for review. Other cosponsors are Lindsey Graham (R-SC ...
On July 6, 2013, Oregon became the first state to establish a voluntary road usage charge system for transportation funding. Senate Bill 810 authorizes the Oregon Department of Transportation (ODOT) to charge up to 5,000 motorists 1.5 cents for every mile they drive rather than the traditional 30-cent gas tax. The law comes on the heels of two ODOT pilot programs that examined alternative funding mechanisms to the gas tax and tested the vehicles-miles traveled fee (VMT) system.
As reported here, the Executive Director and CEO of the International Bridge, Tunnel and Turnpike ...
A lawsuit recently filed by Scenic America strikes at a guidance issued by the Federal Highway Administration (FHWA) in 2007 related to the use of changeable electronic variable message signs (CEVMS) also known as digital billboards. These CEVMS, which are seen with increasing frequency on sites adjacent to and intended to be viewed from the highway right of way, rely on state of the art digital technology to provide changeable, high definition commercial messages to the traveling public.
The FHWA guidance being challenged addresses an issue raised by the Highway ...
On September 24 the Federal Highway Administration issued policy guidance on various aspects of MAP-21, including a memorandum to its Division Administrators on the tolling provisions in MAP-21 and questions and answers on federal tolling laws.
The tolling guidance addresses (1) the complete replacement of the prior statutory language of 23 U.S.C. 129(a), (2) the application of the existing HOV/HOT lane provisions in 23 U.SC 166, and (3) the status of the four existing toll pilot programs. It is a must-read for anyone concerned with federal tolling law and policy.
Sections 129 and ...
The Moving Ahead for Progress in the 21st Century Act (MAP-21) contains meaningful reforms that collectively represent a significant improvement in federal surface transportation law. For the most part, federal law directly on the subject of public-private partnerships saw little change of significance. Other federal laws, though not directly addressing PPPs, also affect the viability as a project financing mechanism. Changes to the TIFIA program and to federal tolling law that will markedly improve project finance via public-private partnerships were addressed in our ...
MAP-21 contains meaningful reforms that collectively represent a significant improvement in federal surface transportation law. Join our panel, including key house staff members critical to MAP-21, for a 90-minute discussion on selected aspects of the Act and listen as they address the effects it will have on the transportation industry.
Congress recently passed MAP-21 and under prior law, with few exceptions, tolling was prohibited on Interstate highways and many other federal-aid highways. The bill expands the exceptions, in recognition of the fact that federal fuel tax revenues are stagnant and new revenue sources are imperative to meet the growing funding gap in surface transportation.
MAP-21, a measure to reauthorize transportation funding through the end of 2014, is the product of a robust effort by transportation advocates to streamline the lengthy, complex, and cumbersome federal environmental process.
The Arizona Legislature sent to Gov. Jan Brewer on April 4, 2012 the landmark bill HB 2491, creating state-of-the-art toll collection and enforcement authority for the Arizona Department of Transportation (ADOT).
The bill follows on the heels of the state’s enactment of its public-private partnership (P3) law two years ago. While that law authorizes tolling, it lacked the enforcement mechanisms needed for effective open road electronic tolling, essential to modern toll road financing and operations.
HB 2491 includes a three-notice system, increasing charges for ...
Representatives from a coalition of Departments of Transportation (DOTs) across the United States have joined to send a letter to Speaker of the House of Representatives John Boehner to oppose inclusion into the House's surface transportation reauthorization bill two amendments, introduced by Senator Bingaman, to the recently passed S. 1813, entitled Moving Ahead for Progress in the 21st Century (MAP-21). The DOTs that signed the letter include Arizona, Pennsylvania, Florida, North Carolina, Indiana, Texas, Kansas, Virginia, and Ohio.
The DOTs say the two ...
On Friday, Dec. 9, 2011, New York Gov. Andrew Cuomo signed historic design-build legislation into law, giving five state entities - the New York State Department of Transportation, the New York State Thruway Authority, the Office of Parks, Recreation and Historic Preservation, the Department of Environmental Conservation and the New York State Bridge Authority - general authorization to enter into design-build contracts for capital projects for physical infrastructure. Previously, only public universities had legislative authorization to use design-build.
Moving Ahead for Progress in the 21st Century (MAP-21), the draft reauthorization bill unanimously voted out of the Senate Environment and Public Works Committee, contains major improvements to the TIFIA program that many, including those of us at Nossaman, have been advocating. These changes, if enacted, will greatly expand availability and eliminate much of the uncertainty over whether a project will be selected.
- The bill eliminates virtually ALL of the selection criteria, converting availability from a discretionary competitive selection process to a simple objective ...
Nossaman's Geoff Yarema, chair of the Firm's Infrastructure Practice Group and a Commissioner on the Congressionally mandated National Surface Transportation Infrastructure Financing Commission, provided testimony this week to the U.S. House of Representatives Committee on Transportation and Infrastructure, Subcommittee on Highways and Transit, "Hearing on National Infrastructure Bank: More Bureaucracy & More Red Tape."
We are pleased to report that AB 294--the bill that was the subject of our blog yesterday--is no longer in play.
A last-minute amendment to California Assembly Bill 294, if passed, would wreak havoc on Caltrans and local agency plans to use design-build for state highway projects (Public Contract Code section 6800 et seq.) and to enter into public-private partnerships (P3s) for highway projects (Streets and Highways Code section 143).
The language added to the bill would preclude local agencies from hiring consultants to work on the projects, stating that all work must be done through Caltrans employees or consultants under contract with Caltrans. Project consultants are often hired well ...
Susan Martinovich, president of the American Association of State Highway and Transportation Officials (AASHTO), together with representatives of several state departments of transportation, held a news conference yesterday to urge Congress to take action before September 30 to extend the gas tax and to reauthorize federal highway and transit programs at current funding levels. The press conference was held at the annual meeting of the Southeastern Association of State Highway and Transportation Officials.
A press release reporting the news conference quoted Martinovich ...
The Pennsylvania Transportation Funding Advisory Commission just issued its final report on a strategy to improve the commonwealth's transportation funding. Aside from a list of recommendations for streamlining operations, the Commission made the following key recommendations for solving the commonwealth's transportation revenue and funding problems:
- Expand program management and outsourcing, including bundling "individual projects into programs—such as rehabilitating 100 to 300 bridges at one time—and engag[ing] experienced private sector program managers ...
On June 15, House Transportation and Infrastructure Committee Chairman John Mica and Rep. Bill Shuster, Chairman of the Railroads, Pipelines and Hazardous Material Subcommittee, introduced the Competition for Intercity Passenger Rail in America Act.
Chairman Mica said: After 40 years of costly and wasteful Soviet-style operations under Amtrak, this proposal encourages private sector competition, investment and operations in U.S. passenger rail service. The legislation would force Amtrak to sell the Northeast Corridor (NEC) to the U.S. government, establish a committee ...
The roll-out of positive train control (PTC) is a daunting task for many railroads. Even without PTC we would still call this a very busy time in the realm of railroad safety. The Rail Safety Improvement Act of 2008 (RSIA), which included the PTC mandate, was the most comprehensive rail safety legislation in several decades. It would be easy in light of PTC to lose sight of all the other RSIA initiatives underway, but that would be a mistake.
In an effort to help our readers stay current, we will devote some space here to a series of posts on RSIA implementation issues other than PTC. I will be ...
On Monday March 14, House Transportation Committee Chairman John L. Mica (R-FL) conducted the latest of a series of field hearings, this one in his home district in Central Florida, to discuss pending major transportation legislation. It was the only scheduled field hearing in Florida on the transportation bill. The hearing was focused on improving and reforming our nation's surface transportation programs.
Among those asked to testify were:
- Geoffrey Yarema, Partner, Nossaman LLP
- The Honorable Frank Bruno, County Chair, County of Volusia
- Ananth Prasad, Assistant Secretary for ...
Last week the National Governors Association strongly urged key Senators to stand with them against new restrictions on public private partnerships and tolling in the House T&I Committee’s draft surface transportation bill. In their letter to chairs and ranking members of the Senate Environment and Public Works, Finance, and Banking, Housing and Urban Affairs, the NGA highlighted the efforts of state and local governments to pursue innovative financing options to complement traditional sources, and asked the Senate to omit the proposals from the Senate’s ...
The NOFA for service development programs, published at 75 Fed. Reg. 38,344 (PDF), outlines selection criteria and application procedures for $2.1 billion in FY 2010 HSIPR funds. A second NOFA addressing $245 million available for individual construction projects within a corridor, was published at 75 Fed. Reg. 38,365 (PDF).
Applications pursuant to these NOFAs are due to FRA by August 6. Grant awards are expected to be announced by September 30.
The NOFAs both indicate that FRA is preparing draft guidance to establish a long-term framework for the HSIPR program. This forthcoming guidance does not apply to the $2.3 billion in FY 2010 HSIPR funding but is intended to provide further clarification about future project development processes (from planning and design through construction and operation), and technical assistance for successful project development and delivery. FRA has stated that outreach on proposed new guidance will begin this fall.
The powerful House Ways and Means Committee recently heard testimony from state and local officials on how to create and fund a new National Infrastructure Bank. Witnesses highlighted efforts around the country to find new ways to finance transportation projects, from the Measure R dedicated sales tax in Los Angeles to Kentucky’s new Green Bank (a revolving fund dedicated to promote energy efficiency, capitalized with ARRA funds).
Witnesses emphasized the need for new transportation funding, noting that the United States has fallen far behind certain ...
USDOT has published interim guidance on its new TIGER II competitive grant program, a $600M successor to the popular $1.5B TIGER program included in the American Recovery and Reinvestment Act (ARRA). The guidance outlines application deadlines, eligibility and project selection criteria, and indicates a shift in the focus of the program from near-term job creation to long-term outcomes.
TIGER II is not constrained by ARRA’s focus on shovel ready projects and immediate job creation (funds must be awarded by 9/30/2012, but there is no deadline for expenditure or project completion). Instead, TIGER II seeks long-term outcomes, though these outcomes fall in the same general areas as TIGER I: safety, economic competitiveness, livability, sustainability, and state of good repair (the extent to which a project improves the condition of existing infrastructure and minimize life-cycle costs).
Click below for additional details about the focus and requirements of TIGER II.
USDOT Announces $1.5 Billion in TIGER Grants – $60M in TIFIA Allocations
On February 17, the one year anniversary of the landmark American Recovery and Reinvestment Act, USDOT announced the final list of TIGER grant recipients. Grants range in size from $3.15M for a roadway rehabilitation/reconstruction in Burlington, VT to a $105M grant for construction of two new intermodal facilities in Memphis, TN and Birmingham, AL to support freight rail service from the Gulf Coast to the Mid-Atlantic.
When combined with state and private funds, the TIGER funds will support ...
USDOT has published new program guidance for the TIFIA Program which clarifies project selection criteria and processes. The new guidance is the product of long deliberation at USDOT, which withdrew an earlier proposal last spring. [See USDOT Withdraws Proposed Changes to the TIFIA Program.]
- Announces a change in TIFIA selection criteria and processes going forward – rather than the current first come, first served basis for project submission, the new process would pool all letters of interest and apply weighting criteria to choose the best projects.
- Requests ...
The Obama Administration recently outlined its proposal for enhanced federal safety oversight of subways, light-rail and municipal bus systems. USDOT Secretary Ray LaHood said, Now, would we prefer that states regulate their own systems? You bet. But some states simply lack the resources to do that. And, in a pinch, some state will cut safety items from their budgets. For transit passengers those cuts are too dear.
The proposed Public Transportation Safety Program Act of 2009 would authorize the Secretary, through the Federal Transit Administration (FTA), to set and enforce minimum federal transit safety standards and ensure that transit safety efforts grow in tandem with increased ridership.
USDOT is currently prohibited from establishing federal transit safety standards, and instead relies on 27 State Safety Oversight Agencies (SSAs) to monitor transit safety as provided in 49 CFR Part 659. Following several transit incidents earlier this year, FTA Administrator Peter Rogoff announced the Administration’s intent to enhance federal oversight. [See FTA Considering New Safety Oversight for Rail Transit.] Funding, independence, and enforcement powers are critical concerns for SSAs, which average less than one staff person per transit agency and in some cases rely on transit revenues from the systems they oversee.
Under the proposed program, FTA would be authorized to promulgate minimum national standards for rail transit safety, applicable to all fixed rail systems not currently under Federal Railroad Administration jurisdiction. (The legislation would also authorize bus safety regulatory authority but DOT expects its initial focus to be on rail transit safety.)
States could choose to continue transit safety oversight on behalf of FTA, but only when FTA finds that the SSA has:
- an adequate number of fully-trained staff to enforce federal regulations;
- been granted sufficient authority by its governor and state legislature to compel compliance by the transit systems it oversees; and
- sufficient financial independence from any transit systems under its purview.
Senators Boxer and Inhofe are preparing to hotline a six-month extension of the federal surface transportation programs, which would provide funding at gross FY2009 levels, with an additional $8.7 billion in contract authority to replace the funds rescinded on September 30.
The bill would also extend funding for projects of national and regional significance (SAFETEA-LU 1301) and national corridor infrastructure (SAFETEA-LU 1302) according to 2009 receipts. House Transportation and Infrastructure chairman Jim Oberstar’s 3-month extension, which recently passed in ...
California will soon have a new authority that can authorize California transportation agencies to toll transportation facilities, eliminating the need for legislative approval for each tolling project.
AB 798, a bill sponsored by state treasurer Bill Lockyer and recently signed by Governor Schwarzenegger, creates a new state level agency, the California Transportation Finance Authority, with the limited purpose of issuing revenue bonds for new capacity or improvements to the state transportation system at the request of a public sector project sponsor. Project sponsors ...
California is now ready to assess P3 candidate projects. At its October 14th meeting, the California Transportation Commission approved policy guidance addressing the Commission’s role in selecting proposed P3 projects. The CTC developed the guidelines to assist Caltrans and regional transportation agencies (RTAs) as they move to develop P3 transportation projects, taking advantage of the new authority granted to them under Senate Bill X2 4, enacted in February of this year.
The enabling legislation requires the CTC to select projects nominated by Caltrans or an RTA ...
With the delay of the federal transportation re-authorization and federal transportation funding in limbo, state transportation agencies across the nation are trying to cope any way they can. In California this week, 19 self help local transportation financing agencies - that collectively generate more than $4 billion a year for transportation - drew a large crowd of transportation public agency officials, elected officials, contractors and consultants to the 20th Annual Focus on the Future Conference in Los Angeles to explore their options. Conference speakers discussed current developments in transportation funding, environmental compliance and project delivery. The news on project delivery and innovation was positive, the environmental compliance news mixed, and the funding news pretty discouraging.
Interspersed with the grim chronicling of the current state and federal funding landscapes, the conference highlighted some bright spots, including federal ARRA funds, Measure R funding in Los Angeles, and innovative project delivery, PPPs and congestion pricing.
Included in New Jersey’s Economic Stimulus Act of 2009 are provisions to allow the use of PPPs to design, build, finance, operate and maintain higher education facilities. Is this the start of a trend for developing social infrastructure in the US?
Social infrastructure includes housing, educational, recreational and law and order facilities that support the community's need for social interaction. As reflected by several projects in Canada, this is not a new concept for North America. Along with the recent use of a PPP for development of the Long Beach Courthouse, New Jersey’s ...
Infrastructure Investor, a trade publication, examined how the proposed extensions to the transportation authorization could pull money from states through rescission. Monday’s article, US states face $9bn in transportation funding cuts, discusses the looming rescission of budget authority required by SAFETEA-LU, as well as the proposed extensions of program authority moving forward in the Senate. The article extensively quotes Ed Kussy, former Federal Highway Administration Deputy Chief Counsel, and current Nossaman partner. Excerpts from the article ...
Yesterday, House Transportation and Infrastructure Chairman Jim Oberstar introduced the bill under an expedited process which waives committee approval and prevents amendment. The bill does not address the $8.7 billion rescission required under SAFETEA-LU, which will force FHWA to cancel program funding apportioned under SAFETEA-LU (as amended by the EISA) on September 30.
In addition to the recent passage of comprehensive P3 legislation in Arizona and California, the newly created Massachusetts Department of Transportation (MassDOT) has also been authorized to utilize public private partnerships for transportation projects. Provisions for design-build-operate-maintain (DBOM) and design-build-finance-operate-maintain (DBFOM) procurements are included in Senate Bill 2087, commonly known as the "Transportation Reform Act," under which MassDOT was formed. Under the Act, P3’s may be used for a new or existing highway, road ...
Arizona has passed comprehensive P3 legislation on the heels of the passage of similar legislation in California. Last month, Governor Jan Brewer signed House Bill 2396 which both updates Arizona’s existing toll road development and operations laws and gives the Arizona Department of Transportation (ADOT) broad authority to develop and operate a range of transportation projects through a variety of delivery methods.
Under House Bill 2396 ADOT is authorized to use virtually any innovative delivery method, including P3s. Facilities eligible in the bill include: new or ...
California is serious about using its new legislative authority to deliver some of the state’s much-needed transportation projects through public-private partnerships (P3s). On August 12, 2009, the California Transportation Commission issued draft guidelines addressing the Commission’s role in approving the P3 delivery method for specific projects.
The draft guidelines follow the California legislature’s momentous enactment of Senate Bill 4, referred to as SBX2 4. That bill authorizes Caltrans and regional transportation agencies to enter into P3s for ...
A recent survey conducted by KPMG International confirms what many in the infrastructure industry already knew: current infrastructure investment is insufficient to support economic growth and politics frequently influences infrastructure development in the United States. In this global survey, KPMG surveyed 455 infrastructure executives, including 118 from the United States.
While much of the recent industry press has focused on the lack of available financing as the primary challenge to delivering infrastructure, a vast majority of the respondents indicated that ...
Nossaman LLP’s 30-plus infrastructure attorneys offer clients, colleagues, strategic partners, and industry media a wealth of practical experience, insider insight, and thoughtful analysis here on Infra Insight. We blog about what we know best, from industry-leading procurements to local and national policy developments that affect the market and our clients.
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