In the latest chapter in a long-running controversy, 18 business organizations—including several in construction and related industries—have asked the Federal Highway Administration to cancel a controversial 2021 guidance document recommending how state departments of transportation should prioritize projects that draw on Infrastructure Investment and Jobs Act funds.
The amount of work potentially affected by the memo is considerable. According to an FHWA summary, the highway and bridge portion of the $1.2-trillion IIJA is about $350 billion over five years.
For more than a year, business groups and congressional Republicans have blasted the guidance document, issued Dec. 16, 2021, and titled "Policy on Using Bipartisan Infrastructure Law Resources to Build a Better America.”
They contend it favors maintenance and repairs of existing highways over projects that would add new road and bridge capacity.
A leading congressional critic of the memo, Sen. Shelley Moore Capito (R-W.Va.) has said that the guidance "imposes a one-size-fits-all approach."
But Biden administration officials have pushed back against the criticism. For example, U.S. DOT Secretary Pete Buttigieg said in a Senate hearing last year that that adhering to the document is not mandatory, rather it only offers a set of recommendations.
Critics Say Memo Has Caused 'Significant Confusion'
In their new letter, sent to FHWA Administrator Shailen Bhatt on Jan. 18, the industry groups, led by the U.S. Chamber of Commerce, said that the document “elicited significant confusion within the transportation community as the guidance intended to serve as an overarching framework that prioritizes IIJA resources towards certain projects, which was inconsistent with what was laid out under the legislation President Biden signed into law the month before.”
Moreover, the organizations noted that on Dec. 15, the Government Accountability Office issued a determination that the guidance memo has the status of a federal regulation. If so, they say, state and local transportation agencies must abide by it.
An FHWA spokesperson told ENR via email, "We are reviewing the letter and will respond directly to the group that submitted the letter."
Several Construction Groups Among Signatories
Organizations signing the letter include the American Council of Engineering Cos., American Road & Transportation Builders Association, Associated General Contractors of America, Association of Equipment Manufacturers, National Asphalt Pavement Association, National Stone, Sand & Gravel Association and Portland Cement Association.
This is not the first time that critics of the memo have sought to get rid of the FHWA guidance.
Last Feb. 18, Senate Minority Leader Mitch McConnell (R-Ky.) and 28 other Republican senators wrote to Buttigieg asking that the memo be rescinded or substantially revised.
But so far, U.S. DOT has defended the document and kept it in place. And at his Senate confirmation hearing, Bhatt—who has held senior positions at four state DOTs—said, "I've added capacity in every state that I've worked in."
The FHWA memo says that the agency will work with states "to encourage and prioritize the repair, rehabilitation, reconstruction, replacement and maintenance of existing transportation infrastructure."
It also says that though the policy doesn't bar construction of new highway and bridge capacity projects, in most cases federal IIJA funds "should be used to repair and maintain existing transportation infrastructure before making new investments in highway expansions for additional general purpose capacity."