Senate EPW Committee Approves 5-Year Highway Bill

This morning, the Senate Environment and Public Works Committee approved, by a 23 to 0 vote, a five-year highway program reauthorization bill containing $287 billion in Highway Trust Fund contract authority and authorizing an additional $5.7 billion in general fund appropriations. The bill, the America’s Transportation Infrastructure Act, is S. 2302.

  • The 8,800-word Eno staff summary of the bill as reported is here.
  • The bill text as introduced is here.
  • The text of the bipartisan amendment in the nature of a substitute for the bill, which was then made base text for further amendment, is here.
  • The text of the five amendments to the substitute adopted in the markup session is here.
  • A two-page table showing all funding authorizations made by the bill, as reported, is here.
  • A series of tables showing estimated state-by-state formula funding under the bill is here.

Bipartisanship was on full display at the hearing – the only votes taken were unanimous, and everyone who spoke was in support of the legislation. And a litany of stakeholder groups were cited as being in full support of the legislation.

And, shortly before the markup started, the legislation was blessed from on high, via tweet:

No pay-for. Of course, the biggest unanswered question is still “how to pay for all this” – the $287.3 billion in HTF contract authority for FHWA is only part of surface transportation legislation that will have contributions from other committees as well. If the same proportions are used for this bill that were used in the FAST Act of 2015, where FHWA got 80.1236 percent of the contract authority, mass transit 17.4004 percent, and NHTSA and FMCSA 2.4760 percent, then FTA would get $49 billion of contract authority over five years and NHTSA and FMCSA would share $7.0 billion. ETW estimates that the outlays from that contract authority would boost the amount of additional tax revenues (or bailout transfers) needed to keep the Highway Trust Fund solvent through the end of FY 2025 from the CBO May 2019 baseline of $79 billion up to around $110 billion, as follows:

But EPW chairman John Barrasso (R-WY) and ranking minority member Tom Carper (D-DE) each made a point of saying that they would work with the Finance Committee to restore the user-pay system, which means new tax revenues on highway users. (Barrasso has been explicit that electric vehicles need to be brought into the user-pay system as soon as possible). And section 1525 of the bill expresses the “sense of the Senate” that “(1) the Highway Trust Fund shall achieve long-term solvency through user fees; and (2) any spending beyond current Highway Trust Fund revenues and balances during the reauthorization period under this Act shall be fully offset.”

Big Four. Bills like this are best understood as “Big Four” bills – the legislation was developed in such a way that unanimity between four key Senators on all provisions was necessary: EPW chairman John Barrasso (R-WY), EPW ranking minority member Tom Carper (D-DE), Transportation and Infrastructure Subcommittee chairman Shelley Moore Capito (R-WV), and subcommittee ranking member Ben Cardin (D-MD). They designed the base bill, they decided which of their colleagues’ proposals to include in the substitute amendment, they decided which of the proposed amendments to the substitute would be allowed to pass by a voice vote, and they told their colleagues that it would not be in their interest to exercise their rights to offer other amendments at the markup that would face unified Big Four opposition.

After the substitute version of the bill was circulated to EPW members late Friday afternoon, the only further amendments that passed “Big Four” muster were the five that were accepted by voice vote at the markup:

  • Carper #1 – amends the authorizations in sec. 1101 of the substitute to further subdivide funding under the competitive side of the PROTECT grant program.
  • Inhofe-Boozman #1 – amends sec. 1110 of the substitute to make marine highway projects (including inland waterway projects) eligible for INFRA grants.
  • Duckworth #2 (revised) – adds a new section to the substitute requiring FHWA to study existing and future impacts of self-driving vehicles on the roads.
  • Merkley #3 (revised) – amends sec. 1528 of the substitute to require priority be given to pollinator-friendly wildflowers.
  • Van Hollen #3 (revised) – amends sec. 3001 of the substitute to increase funding for the VMT pilot programs from $25 million per year to $30 million per year (with the increase split 50-50 between the state pilots and the national pilot).

Looking at the legislation as a Big Four endeavor explains some of the disparate parts:

  • Barrasso – You might be surprised to see $250 million in the bill to provide for better large animal crossings of highways, but there are lot of elk, antelope, moose, and bison running around Wyoming. (Cardin made a point of saying that the last time he was in Wyoming, he drove around a blind curve and almost hit a bison.) Barrasso made a point of talking about this issue at the July 10 hearing. And there are a whole host of Indian provisions in the bill (title IV ROADS Act, section 1524 of the bill giving oil, gas and water lines on Indian reservations NEPA categorial exclusions, and big funding authorizations for roads and bridges on Indian lands) make sense when you realize that there is a 3,000-square-mile Indian reservation in the middle of Wyoming. Also, there is an odd provision in the bill’s changes to the INFRA grant program giving priority to states that have a population density of fewer than 80 residents per square mile and have 3 or fewer Interstate exchanges of two different routes of the Interstate System in each state, which is Wyoming all over.
  • Carper – His primary focus was on climate change and resiliency issues, and the new bill goes much farther in that regard than any previous surface transportation legislation. Also, sec. 1408 of the bill on diesel emissions reductions was taken directly from Carper’s bill S. 747.
  • Capito – She managed to get the Appalachian Regional Commission reauthorization included in the bill as sec. 1506. And that odd provision in title II of the bill that allows unused TIFIA contract authority balances to be traded to Appalachian states also bears her fingerprints.
  • Cardin – Many elements of Cardin’s bill (S. 1098) to beef up the Transportation Alternatives program made it into the bill, and the community connectivity program in section 1508 was a priority of his as well.

What didn’t make it in. Several members discussed amendments that they had filed behind the scenes that did not meet the Big Four unanimity test. Two Senators (Joni Ernst (R-IA) and Mike Rounds (R-SD)) said they had proposed amendments to require the electric vehicle and alternative fuel charging/fueling infrastructure grant program funded by the bill to also include biofuel refueling stations (and, for Rounds, propane as well), but this did not pass Big Four muster.

And Sen. Mike Braun (R-IN) discussed two amendments that did not receive clearance: a Buy America amendment that would codify President Trump’s executive order on the subject and eliminate blanket BA waivers for highway programs, and an amendment giving priority in the INFRA grant program for applicants who are requesting a low INFRA grant share (Braun was miffed that Indiana did not get any INFRA funding in the latest round despite only asking for a 20 percent INFRA grant share of whatever the project was).

There is currently no schedule for other Senate committees (Banking for mass transit, Commerce for safety and rail, and Finance for da money) to act on surface transportation reauthorization legislation.

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