A New Bill Passes, But America’s Transpo Policy Stays Stuck in 20th Century

The House of Representatives approved the transportation bill conference report this afternoon by a vote of 373 to 52. [UPDATE 4:00 PM: The Senate has also approved the bill, 74-19.] This is a bill that’s been called “a death blow to mass transit” by the Amalgamated Transit Union, “a step backwards for America’s transportation system” by the Rails-to-Trails Conservancy, “a retreat from the goals of sustainability and economic resiliency” by Reconnecting America, “a substantial capitulation” by Transportation for America, and “bad news for biking and walking” by America Bikes.

Remember the empty highways that symbolized the House Republicans' vision of America's transportation system? The final transpo bill might as well have the same unfortunate cover.

After more than 1,000 days of waiting since the last transportation bill expired, the nation’s new transportation policy is a grave disappointment to people seeking to reform the current highway-centric system.

The fact that the House GOP tried and, for the most part, failed to reverse the progress made under presidents Reagan and Bush the elder offers a small degree of consolation. “Some of the worst ideas pushed initially by House Republicans went nowhere – funding the highway system with new oil drilling revenues, taking transit out of the highway trust fund, de-federalizing transportation funding – to mention some of the most radical proposals that were seriously being put forward,” wrote Deron Lovaas of NRDC this morning. “But… that pretty much exhausts the good news.”

So what does the bill actually do? Overall, it doesn’t change a whole lot, and the most significant changes tend not to benefit livable streets or sustainable transportation. Here’s a breakdown.

Length and funding. The bill lasts a year longer than the Senate bill would have, expiring at the end of September 2014. That gives states, cities, and the construction industry substantially more stability and allows them to move forward on projects that have been delayed for years because of the uncertainty surrounding federal funding. It maintains funding levels at around $54 billion a year, as did the Senate bill, which is roughly current levels plus inflation.

While some have criticized the complex funding mechanisms that prop it up and its departure from a user-pays model, the Congressional Budget Office reported this morning that the bill actually reduces the deficit by $16.3 billion.

Everyone seems to understand that Congress won’t be able to pull this kind of magic for long and will soon have to deal with the long-term insufficiency of current Highway Trust Fund revenues to cover the nation’s transportation needs. However, the gas tax was not raised, and at the same time the House passed this bill, it also approved an appropriations bill that prohibits even studying the possibility of moving toward a VMT fee.

Non-transportation-related items. The Keystone XL pipeline and the EPA’s ability to regulate coal ash as a hazardous substance, introduced into the transportation negotiations by the House Republicans, were stripped out of the bill. The RESTORE Act to spend BP oil spill fines on Gulf Coast restoration is included.

Transit. Funding stays level, adjusted for inflation. Some high points are a new transit-oriented development pilot program and a big bump in funding to help keep transit systems in a state of good repair. Advocates are also bullish on the streamlining of the “New Starts” program, which could mean new transit projects get built quicker. A new “bus and bus facilities” program has also been added. The bill also establishes federal oversight over transit safety for the first time. However, an attempt to allow transit systems the flexibility to use capital funds for operations in hard economic times was scrapped. So was a measure to bring the maximum commuter tax benefit for transit up to the level of the maximum parking benefit. Drivers can deduct up to $240 a month on their taxes for parking, whereas transit riders max out at an inequitable $125.

Bicycle and pedestrian projects. This is one of the unmitigated failures of the bill. It’s been clear for a while that the Republicans had the Transportation Enhancements program and other programs dedicated to safer biking and walking in their sights. Sen. Barbara Boxer fought to save the program, but it verged on “deal-breaker” status for Republicans. The GOP managed to paint these life-saving, community-enhancing programs as a frivolous waste of money spent planting flowers, and they hacked off a big chunk of money that used to be set aside for them. The end result is a “Transportation Alternatives” program which, according to America Bikes, cuts bike/ped funding by 60 to 70 percent. Not only is the overall pot smaller, but these funds can now be used on certain types of road projects. Worse, although half the funds will go straight to local areas to distribute, the half that goes to the states doesn’t need to be used for active transportation – they can “transfer” it to a whole host of other uses if they want. “Complete streets” language in the Senate bill that created a federal requirement for accommodation of non-motorized road users was stripped as well.

TIFIA. Over the last few years, the TIFIA loan program has gotten 12 to 14 times more applications than it can fund for infrastructure projects around the country. TIFIA leverages private investment and local dollars, historically making $1 billion in loans with its $122 million annual budget. Both the House and the Senate, cheered on by advocates like Los Angeles Mayor Antonio Villaraigosa, expanded TIFIA’s budget from $122 million to $1 billion. Experts from Taxpayers for Common Sense and the Bipartisan Policy Center have urged caution, saying that this might actually be too high a level. They worry that there aren’t enough creditworthy projects in the TIFIA pool to use up all that money and that lowering the bar too much could expose U.S. taxpayers to debt if those projects default. Somewhat tangentially, the bill also expands tolling authority – not to existing roadways, but to more highway expansions than were previously allowed.

Maintaining infrastructure. The bill establishes performance measures for highway and transit maintenance. However, overzealous program consolidation has meant that dedicated funding for road and bridge repair – currently about 32 percent of highway funds – has disappeared. A focus on repair reins in state DOTs bent on building new roads while not maintaining old ones, a tendency that creates sprawl as development crops up along the new roads. This bill is a step backwards on road maintenance and sprawl prevention.

Freight. Calls for a national freight policy have been answered in this bill, but Joshua Schank of the Eno Transportation Center says the final product is disappointing. It’s not one of the core formula programs and doesn’t include a discretionary grant program. It also has a heavy emphasis on road freight, meaning highways, although railway-highway grade separations and intermodal connectors are listed as eligible projects for prioritized federal funding. The bill also calls for a freight strategic plan.

Performance measures. The bill includes performance goals for air quality, freight movement, safety and state of good repair for both highways and transit, but largely without teeth. The House stripped provisions for financial penalties out of the bill. The bill “requires” agencies to incorporate these goals in their planning but does not tie funding to achievement. Calls to create performance measures for emissions reductions and oil consumption went unheeded.

Solid goal-based performance requirements could be the key to reforming the entire system. “You don’t need mandated spending on anything – including Safe Routes to School and bike/ped — if you have the right performance measures in place and the right goals in place,” said Schank when asked whether the consolidation or elimination of nearly 70 federal programs in the bill was a good thing. Performance goals could help achieve the conservative goal of reducing federal bureaucracy and eliminating programs without losing any important functions.

“How far you go on performance determines how far you go on consolidation,” Schank said. “I don’t think we need a separate program for congestion mitigation and air quality. But that’s because I think we should have a performance measure for emissions and for air quality and for oil consumption. If we don’t have those things then you kind of have to keep the CMAQ program.”

Unfortunately, what we ended up with, he said, was the “worst of both worlds.”

“We lost mandated spending, and we didn’t get the performance measures that would encourage that kind of spending,” Schank said.

TIGER. This bill was a perfect opportunity to authorize the TIGER grant program, an enormously popular initiative that rewards transportation innovation at all levels of government — including cities, which can’t directly access federal transportation dollars. There is a program, maintained from SAFETEA-LU, which funds “Projects of National and Regional Significance” on a discretionary basis, “which could be a TIGER-like program,” according to Transportation for America Director James Corless, but “cities are not allowed to apply for grants.” One of the strengths of the TIGER program is that it allows metropolitan areas to coordinate directly with the federal government on projects without going through state governments. PNRS is funded at about the same level as TIGER’s last round.

Environmental “streamlining” (NEPA). The Republicans led the charge against community consultation and environmental review. By perpetuating the myth that environmental reviews have made a 13-year timeline “average” for road construction projects, they have managed to cut away at the limited protections communities have when a major infrastructure project threatens to do harm. The final conference deal lifts the cap on lateness penalties when agencies hold up projects, potentially forcing rushed decisions. It reduces the window for litigation from 180 to 150 days, which could potentially increase litigation, since it leave less time to settle differences outside of court. Even complex projects will be held to a four-year timeline.

Other initiatives. The inter-agency Partnership for Sustainable Communities, gutted in recent appropriations bills, could have had a place in this bill, though no one necessarily expected it to. High-speed rail isn’t even mentioned. Rail is authorized separately from the rest of surface transportation, an awkward procedural issue that could have been solved here but wasn’t. Perhaps it’s for the best: given the way other compromises worked in this bill, Amtrak could have been eviscerated and high-speed rail buried for good. However, it’s disappointing to see the removal of a good rail section in the Senate bill, which according to NRDC’s Lovaas positioned rail planning “as a viable alternative to highways.” And finally, there is no infrastructure bank in the final version of the bill, which at this point is hardly a surprise.

How money is distributed. The bill bypassed an opportunity to reward innovation and performance with discretionary money, due to pressure from Republicans keeping this bill strictly formula-based. “If Congress doesn’t have earmarks, they sure as hell aren’t going to give the president the chance to have discretionary grant authority,” said Schank. However, he says, it doesn’t actually use formulas to update the correct amount for each state, instead simply awarding states money at the levels mandated in SAFETEA-LU – essentially, ossifying formulas set in 2005.

One positive change is the elimination of the so-called equity bonus program, long considered a “slush fund” to placate states that felt they hadn’t gotten back a big enough portion of the gas tax money they’d sent to Washington.

Perhaps the best thing about this bill is that it will be over in 27 months. “Within six months you really need to start the process of debating and designing a new bill moving forward,” said John Robert Smith, president of Reconnecting America. That will present another chance to enact more lasting reforms to the transportation system.