Partisan fissures emerged Wednesday during a Senate hearing about how to implement the $1 trillion bipartisan infrastructure package signed into law by President Biden last year.
At a Senate Environment and Public Works Committee hearing, Republicans questioned Transportation Secretary Pete Buttigieg over a Biden administration memo that they say undermines the spirit of the law.
GOP lawmakers urged Buttigieg to rescind or modify December guidance from the Federal Highway Administration (FHWA) that advises states to prioritize fixing existing roads and implement public transit or bike lanes before signing off on highway expansion projects.
Sen. Shelley Moore Capito (R-W.Va.), the committee’s ranking member who helped draft the infrastructure bill, accused the Biden administration of using regulations to bypass Congress, stating that the FHWA guidance was pulled “basically verbatim” from House Democrats’ transportation funding proposal.
“Are you in the habit of lifting language from unpassed bills and putting it into regulations that you’re putting forward that obviously had been negotiated out of bills?” Capito asked Buttigieg.
Buttigieg said that the guidance is a recommendation, not a mandate, and noted that it will not impact how states can spend federal highway funding, a point the Biden administration and Democratic lawmakers have frequently driven home.
“The Senate did not go forward with a requirement saying the state has to meet its performance requirements in order to be allowed to do new construction, and so as we go forward implementing the law, we would not impose any such mandate,” Buttigieg told lawmakers.
Capito said that the policy created confusion for state transportation agencies, which initially expressed concern about how it would impact their ability to receive funding.
“Proposals to require ‘Fix it First’ solutions or prescribe the use of certain sources of funding for system preservation do not reflect the use of strategic planning but rather a one-size-fits-all approach to asset management,” the American Association of State Highway and Transportation Officials wrote in a January letter responding to the guidance.
The memo has drawn skepticism from transportation industry groups, whose members are in line for massive contracts to construct new highways or add lanes, and 16 states that are pushing for highway expansion, most of which are led by Republican governors.
“It almost appears designed to create some of that confusion, and I hope that’s not the case, but that’s how it was taken,” Sen. Kevin Cramer (R-N.D.) said of the policy during Wednesday’s hearing.
Senate Minority Leader Mitch McConnell (R-Ky.) and Capito last month called the guidance a “wish list of policies” not included in the infrastructure bill and urged states to ignore it.
“The FHWA memorandum is an internal document, has no effect of law, and states should treat it as such,” they wrote in a letter to governors.
Advocacy groups pushing to modernize American transportation systems and fight climate change backed the policy, pointing to recent studies showing that highway expansion dramatically increases emissions.
Sen. Tom Carper (D-Del.), the committee’s chairman, said Wednesday that the guidance simply reinforces longstanding U.S. priorities to preserve and repair existing infrastructure. He cited a memo from the George W. Bush administration stating that “preventive maintenance is a cost-effective way of extending the service life of highway facilities.”
State transportation officials have stressed that they need to be on the same page as the federal government for infrastructure implementation to run smoothly, and policy disputes could worsen the timeline and cost of projects.
Still, the FHWA memo was the only major point of disagreement during Wednesday’s hearing.
Several of the committee’s Democrats and Republicans, along with Buttigieg, emphasized that Congress needs to pass an omnibus spending bill to unlock billions of dollars in infrastructure spending.
Under existing continuing resolutions, the FHWA and the Highway Trust Fund are unable to spend their full allocations on projects. If Congress doesn’t enact an appropriations bill, the federal government will be locked out of around $45 billion in funds authorized by the infrastructure law, according to state and local government groups.
“The [continuing resolution] prevents the vast majority of new spending authorized in the Infrastructure Investment and Jobs Act, including not just transportation, but telecommunication, drinking water, wastewater, resilience and other investments the law provides,” a coalition of business groups, including the U.S. Chamber of Commerce, wrote to lawmakers last month.
Congress passed a short-term spending measure last month that funds the government through March 11. Senators have struggled to come up with a compromise that can get 60 votes in the upper chamber.
Some parts of the $1 trillion bill, which aims to overhaul roads, bridges, water systems, broadband and other infrastructure and build some 500,000 electric vehicle charging stations, are already being put into action. Buttigieg said Wednesday that the Transportation Department has so far authorized $60 billion in funding to states and communities.
And on Tuesday, Biden touted the passage of the bill during his State of the Union address.
“We’re done talking about infrastructure weeks,” Biden said to lawmakers. “We’re now talking about an infrastructure decade.”
–Updated 3/4/22 at 9:10 a.m.