The Biden administration is giving up its effort to push states to use a large chunk of their new infrastructure money in ways that match Democrats’ climate goals, such as fixing existing highways rather than building new ones.
The Federal Highway Administration issued a new policy memo on Friday that rescinds previous language it had sent to states in December, which had urged them to use money from the 2021 infrastructure law on “fix it first” programs. The December 2021 guidance drew the ire of Republicans, who accused the administration of going beyond the law’s requirements in telling states how to spend the money.
Friday’s action makes it explicit that states will be free to spend a $466 billion pot of money from the law in ways that environmental groups warn will worsen carbon pollution, such as by adding new lanes to traffic-choked highways, rather than investing it into new projects for transit, bicycles or pedestrians. Even before that, GOP-led states such as Virginia had said they planned to use the money as they saw fit, within the bounds of the statute.
The Biden administration pushed back against Republican complaints by saying the December guidance was nonbinding. However, the Government Accountability Office determined that the document went beyond listing legal requirements and instead expressed a policy preference.
The new memo, distributed to FHWA staff on Friday afternoon and obtained by POLITICO, instead says that “the maintenance of existing roads and highways in a state of good repair is an important tool to ensure the effective use of Federal funding.” It adds that “different states have different needs when it comes to transportation assets that must be reconfigured and modernized, expanded and added, or retired and replaced.”
“FHWA recognizes and values the authority and role of the States in deciding how to prioritize the use of their Federal-aid highway dollars and will continue to administer funds and programs consistent with all requisite statutory requirements and considerations,” the memo says.
A footnote in the new memo also makes clear that the document does not “have the force and effect of law” — something DOT had said about the December 2021 memo repeatedly, but that did not satisfy Republicans.
Sen. Shelley Moore Capito (R-W.Va.), the top Republican on the Senate Environment and Public Works Committee and a vocal critic of the earlier guidance, said this newest version is an admission from the administration that “it was wrong in their attempts to undo the flexibility provided to states in the law by establishing preferences for certain policies and projects.” She issued that statement with Rep. Sam Graves (R-Mo.), chair of the House Transportation Committee.
“We’re pleased FHWA recognized that when it comes to legislation of any kind that is passed and signed into law, an administration cannot ignore the role and will of Congress,” they continued.
Senate EPW Chair Tom Carper (D-Del.)
said in a statement that “I hope that this updated guidance can help alleviate
any concerns as we continue working together to address our nation’s