The Biden administration has caved to GOP pressure and will no longer push states to repair existing highways before building new ones, a move that angered livable cities advocates and rewarded the political pressure of conservative lawmakers.
On Feb. 24, Federal Highway Administration Administrator Shailen Bhatt announced in a memo that the White House had pulled back from its earlier 2021 memo that advised states to use the new flood of federal infrastructure money to improve the safety and condition of existing roads before building new lanes that serve single-occupancy cars.
Bhatt’s revised memo — a reversal to the policy known as “Fix It First” — removed all references to highway expansion and single occupancy vehicles. Instead, Bhatt wrote that the feds would defer to states “in deciding how to prioritize the use of their federal-aid highway dollars.”
Opponents of more highway construction were outraged.
“This speaks to the complete inability of a huge share of the transportation establishment in the United States to accept anything other than highway expansion as the priority in every possible case,” said Yonah Freemark, a researcher at The Urban Institute. “And I think this speaks to the privilege that folks in the highway arena feel about their ability to just keep expanding no matter the consequences.”
The flip-flop was a long time coming and likely inevitable. The original six-page memo written in December 2021 by acting FHWA Administrator Stephanie Pollack triggered a battle about federal authority over discretionary spending. States do ultimately control almost all funds from the infrastructure bill, so the Biden pullback is a symbolic loss. But the unlikely political battle led by Sen. Shelly Moore Capito (R-WV) offered a stark reminder on how many tools are at the disposal of supporters of the status quo.
“When it comes to formula grants, states get to choose individual project priorities, not Uncle Sam." said transportation expert Susan Binder, a longtime high-level FHWA official who now works at the transportation consultancy firm Cambridge Systematics. "Uncle Sam controls processes to encourage good planning, transparency and good performance outcomes, but it's still the states who own and operate these facilities. ...[The original memo] was tone deaf to that reality.”
And if the White House couldn't hear, the Republican Party was eager to raise its voice. Sixteen GOP governors signed a letter calling any FHWA attempt to limit state highway projects as “a clear example of federal overreach.”
Three weeks later, Sens. Mitch McConnell (R-KY) and Capito wrote to all governors and Secretary of Transportation Pete Buttigieg that “the FHWA memorandum is an internal document, has no effect of law, and states should treat it as such.”
The party never let up. During Bhatt’s confirmation hearings in September, Capito and Sen. Dan Sullivan (R-Alaska) each pressed the appointee about whether the original memo exceeded the agency’s authority. Bhatt, a former head of departments of Transportation in Colorado and Delaware, simply answered that he would “follow the law” and remained mum about the controversy until his February memo.
Meanwhile, the Government Accountability Office ruled that the Pollack memo could be subject to Congressional review, which GOP lawmakers argued was further proof that FHWA was seeking to exceed its authority. Bhatt's memo confirmed that the White House didn't want to fight anymore. “Different states have different needs,” the memo said, echoing the criticisms voiced by Republicans from the moment the ink on Pollack’s memo dried.
The bottom line is that Bhatt’s revised memo means there is no guardrail to states ignoring the environmental and social impacts of highway expansion.
“We have many [state departments of Transportation] that have for years, been engaged in a Ponzi scheme of building more and more roads with the dollars they have and were not maintaining the ones they have,” said Kevin Brubaker, deputy director of the Environmental Law and Policy Center. “And then they claim poverty and ask for more money to maintain the roads that they chose not to maintain to begin with.”
To Freemark, Pollack’s memo represented a needed correction to the generational bias toward highway building and the automobile industry instead of the environmental costs and reduced livability that accompanied such expansion.
“What's changed over the past few years is that, you know, there's been increasing acknowledgment of the damage that's caused by a highway-first/highway-only agenda, and that has transformed into political power to some degree,” Freemark says. “What we saw with the memo was an attempt, to a small degree, to promote alternative vision for the world. And what we saw with the revocation of the memo was an acknowledgement of the reality on the ground.”
One of the most troubling results for livable cities advocates was the portrayal of Pollack’s memo — something they saw as an overdue recognition of the environmental degradation, racist underpinnings and decreased quality-of-life caused by American transportation policy — as a federal quid-pro-quo for state transportation budgets.
“The underlying law cited in both memos has a great deal of discretion of how federal dollars are spent and still has guardrails on how particular funds are spent in particular ways,” Brubaker says. “The new memo clarifies that the administration views are opinions and suggestions to states rather than binding guidance on how states spend dollars.”
States didn’t specifically cite the Pollack memo when announcing new infrastructure programs, but a series of them are prioritizing a “fix it first” model: New York plans to use $55 million in federal funds to aid the restructuring of Buffalo’s Kensington Expressway; Fairfield County, Pennsylvania is allocating $493,000 to repair one bridge and replace another; New Orleans is planning to use its federal funds to revitalize the Claiborne Expressway, which the Biden administration has specifically cited as an area harmed by decades of racist transportation policy.
Capito’s protracted battle to defeat the Pollack memo not only reflects the strength of highway and auto expansion in state departments of Transportation, but re-emphasizes the difficulty that opponents will face trying to make incremental federal changes. To make federal progress, according to Binder, advocates and legislators could work on establishing focused funding categories with a combination of formula and discretionary grants, built-in incentives, rewards and performance measures instead of proposing direct federal control of state money.
“You catch more bees with honey,” she joked, while conceding that some environmental advocates would claim such an approach is tantamount to “wimping out.”
Brubaker lamented the politicization and defeat of the Pollack memo, but didn’t see the need to change tactics in the fight for safe streets and livable cities.
“The fight for complete streets, for safety, for livable communities, for addressing climate change through transportation spending priorities was, is and remains a state and local issue,” Brubaker said. “Having a federal vocal champion in the prior memo was nice. But it wasn't ever going to meaningfully change state level decisions.
“The fight is still at the state level," he added. "Are states going to invest in complete streets and bikeways and flex money over to transit? Or are they going to build sprawl inducing carbon creating new highways?”
The memo, he added, “became just another front in the culture wars.”
That's a war that Freemark has been studying for years — and it still causes head-scratching.
"The bigger question is, ‘Why were state governments so opposed to the idea that they might, God forbid, have to maintain their roads?' What these state governments were suggesting was that they literally were in favor of spending on expanding their roadways before they maintain their roads.”
