The Infrastructure Investment and Jobs Act of 2021 is a generational investment to repair legacy infrastructure across the United States and to unleash investment in future projects while promoting new technologies and streamlining permitting. The $1.2 trillion investment includes $550 billion in new federal infrastructure spending over five years for airports, railways, ports and waterways, power grids, broadband internet, and other major long-term projects.
Morgan Lewis has long been a trusted adviser to the full range of private infrastructure companies on investing, financing, transactional, corporate, and regulatory matters, as well as federal, state, and local governments on launching and implementing critical infrastructure projects. With a keen grasp of the infrastructure act and its regulatory ramifications, our lawyers assist clients in assessing and acting upon the myriad opportunities generated by the legislation.
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The Infrastructure Investment and Jobs Act allocates $17 billion for ports and waterways, with nearly 70% of the funds focused on new port construction. A large portion of the funds are expected to be expedited to alleviate short-term port congestion and supply chain issues. The overall spending is intended to reshape the domestic ports and waterways with money allocated for projects such as dredging to allow larger boats to enter ports and/or allow more boats to dock simultaneously. Additional funds are earmarked for ongoing operations and maintenance of ports as well as to improve marine highways, such as the Mississippi River, related to shipping and flood control measures.
The act also designates $25 billion for airports to fund passenger and freight aviation infrastructure. The improvements are anticipated to cover runways, gates, and taxiways and to improve terminals and air traffic control towers. A portion of the airport funding is allocated to energy efficiency and LEED certification.
Contact: Michael A. Müller
More than 30 million Americans lack access to high-speed internet networks, and the $65 billion devoted to broadband-related initiatives is intended to bridge this “digital divide.” The COVID-19 pandemic put disparities in access to broadband networks in bold relief as Americans pivoted to cyberspace for work and school and increased their online activity, including streaming, ecommerce, and social media.
On the supply side, the act dedicates funds to build broadband networks for unserved and underserved communities, and it substantially reduces the timeframe for distributing the funds where states submit five-year action plans. Parties seeking funds apply to state agencies and grant recipients must build networks and begin offering services within four years of receiving a grant. Funds are also reserved to allow states to offer private activity bonds to finance broadband deployment. On the demand side, the act allocates money to provide $30-per-month subsidies from the Federal Communications Commission to certain qualifying households as well as support demand-related activities aimed at qualifying households and community institutions for awareness, education, and related activities.
Contact: Andy Lipman
The act authorizes funding to facilitate critical electrification investments and widespread deployment of zero-emission vehicles in US markets. It provides $7.5 billion to build a national network for electric vehicle (EV) charging to accelerate the adoption of EVs to reduce transportation emissions, facilitate long-distance travel by EV, and make EV charging more convenient for consumers. The act also provides $5 billion for zero-emission buses, including EV school buses, and $2.5 billion for zero-emission ferries.
Other electrification and zero-emission vehicle provisions in the act broadly impact the sector and are likely to impact all US market participants involved in electrification initiatives. For example, the act directs the secretary of Energy to carry out a program to research, develop, and demonstrate second-life applications for EV batteries. It also establishes a 25-member EV working group, which will be led by the secretaries of Transportation and Energy, to provide federal guidance and strategy for the development, adoption, and integration of EVs into the US transportation and energy systems.
Contact: Levi McAllister
The act provides an historic level of investment in the cleanup of Superfund and brownfield sites, which is anticipated to incentivize action on some of the country’s most significantly contaminated sites and ultimately spur redevelopment at the locations.
The act allows for the Environmental Protection Agency (EPA) to conduct remediation on legacy contamination Superfund sites at locations prioritized under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). As a significant departure from prior bills, the infrastructure act waives the state cost-sharing requirements, meaning that the EPA can carry out these measures without creating an additional burden for states. Additionally, the act provides for EPA grants and loans for remediation of brownfield sites. There are an estimated 450,000 brownfields where the presence of hazardous materials or contaminants complicates expansion, redevelopment, or reuse, and many brownfields are near disadvantaged communities where appropriate cleanup and redevelopment would enhance health and spur economic development. Like the Superfund program, these funds are exempt from the state cost-sharing requirements under CERCLA.
The act aims to improve core climate and energy technology programs by providing $35 billion for demonstration activities in priority areas such as carbon capture, carbon removal, advanced nuclear, hydrogen, renewables, battery technology, energy efficiency, and industrial emissions. For example, the act authorizes funding for renewable energy demonstration projects; establishes clean hydrogen programs for at least four regional clean hydrogen hubs that would include a network of clean energy producers, potential consumers, and connective infrastructure in close proximity; and funds a battery material processing grant program, a battery manufacturing and recycling grant program, a Lithium-Ion Battery Recycling Prize, and US Department of Energy (DOE) battery recycling programs.
The act also aims to enhance the resilience of the electricity grid and prevent outages by dedicating the remaining funds to strengthen and expand infrastructure, reduce vulnerabilities due to extreme weather and natural disasters, and establish a new electricity grid reliability and resilience demonstration program. For example, the act authorizes funds to establish a DOE grant program to support activities that would reduce the likelihood and consequence of impacts to the grid due to extreme weather, wildfires, and natural disasters; a program for remote and rural areas with the goal of demonstrating innovative approaches to transmission infrastructure and to enhance regional grid resilience implemented through the states by public and publicly regulated entities on a cost-shared basis; and a revolving loan fund to allow the DOE to serve as “anchor tenant” for a new transmission line or an upgrade of an existing line.
Contact: Neeraj Arora
The largest investment in passenger rail since the creation of Amtrak, the act calls for $66 billion to promote expanded and improved passenger and freight rail operations and provides funding to eliminate the maintenance backlog and broaden services beyond the Northeast and Mid-Atlantic regions. The act aims to increase development of rail services in rural areas and dedicates funding to upgrade the 457-mile-long Northeast Corridor from Boston to Washington, DC, which suffered severe damage from Superstorm Sandy in 2012.
Specifically, the act authorizes Amtrak grants (including investments in new Amtrak routes through eastern Pennsylvania); funds a federal-state partnership for high-speed and intercity rail; aims to improve safety, efficiency, and reliability of the short line and passenger rail network; addresses hazards at railway-highway crossings; funds restoration and enhancement grants for railway maintenance; and establishes transit-oriented development funding. The act also provides for investment in research initiatives focused on the development of technologies that will allow railroads to reduce greenhouse gas emissions and climate change impact.
The act establishes a pilot program to remedy the adverse effects caused by transportation infrastructure projects that disrupted community connectivity, particularly in urban communities of color. Eligible entities may apply for planning grants or capital construction grants to fund the planning, design, and reconstruction of certain existing projects that have created barriers to mobility, access, or economic development.
States and local government units, tribal governments, metropolitan planning organizations, and nonprofits are eligible to apply for planning grants of up to $2 million each that may be used to evaluate the feasibility, cost, and impact of removing, retrofitting, or mitigating existing eligible facilities such as highways, limited-access highways, viaducts, and other principal arterial facilities that create a barrier to community connectivity. The federal share of the cost of the planning activity cannot exceed 80 percent. Additionally, owners of eligible facilities may apply for capital construction grants of up to $5 million each to either renovate an eligible facility or replace it with a new facility. An owner may partner with a state or local government unit, tribal government, metropolitan planning organization, or nonprofit. The federal share of the cost of such a project cannot exceed 50 percent, but additional federal assistance other than the construction grant may be used as long as the total federal assistance provided does not exceed 80 percent of the total cost.
Recent events, from extreme weather to cyberattacks, have raised concerns about the ability of the nation’s infrastructure to withstand shocks caused by large-scale disruptions. Such disruptions, like those in February 2021 following Winter Storm Uri in Texas, can pose grave risks to public health and safety and have devastating economic impacts.
The act allocates funds for infrastructure resiliency across a number of sectors. For example, in the electric sector, the act establishes grants to be administered by the DOE to cover the costs of hardening the electric grid and deploying advanced technologies, such as fire prevention systems and battery storage, to increase the resiliency of the system. It also establishes a federal financial assistance program to award funds to electric sector owners for the implementation of innovative approaches to grid resilience and reliability. For the water sector, the act enables the EPA to award grants to safeguard publicly owned treatment works from natural hazards or cybersecurity vulnerabilities. It also allocates billions for natural disaster response, including flood mitigation programs, drought resilience, and wildfire prevention and mitigation.
Contact: Arjun Ramadevanahalli