United States: Federal Infrastructure Law And Policy: 2019 Update

On February 15, President Trump signed H.J. Res. 31, the "Consolidated Appropriations Act, 2019," averting a new government shutdown and authorizing appropriations for the remaining unfunded federal agencies through September 30, 2019. Now that federal legislators have turned their full attention back to the term's normal session, they face significant challenges achieving progress on key issues; historically, opportunities under a divided Congress have been limited to minor or highly popular, bipartisan legislation.

Congressional leaders and Trump administration officials have, over the past several months, pointed to one historically popular and bipartisan area as a potential source of cooperation: federal infrastructure policy. While the passing of a major infrastructure bill in 2019 remains a possibility, a lack of consensus on both goals with respect to infrastructure policy and the means for achieving those goals will likely present challenges for the development of such a bill in committee and greater challenges to the passage of such a bill. In our view, legislative leaders will more likely build on progress within existing infrastructure programs and attempt smaller modifications under standalone bills or as a component to the reauthorization of highway and transit funding. Finally, a focus by certain congressional leaders and 2020 presidential candidates on climate change mitigation and other "green" investments will likely be key in determining the shape of any bipartisan legislation over the medium and long term and represents a shift from past policy practices.

Major Infrastructure Legislation

Trump Administration Plan

Our February 2018 client alert analyzed the Trump administration's infrastructure legislative outline, which called for the use of a limited pool of federal dollars to leverage further investment in projects by states, local governments and the private sector.1 This outline received no consideration in the Republican-led Congress over the course of 2018, and we do not anticipate it receiving attention in the new divided Congress. Nevertheless, it appears that the administration may be preparing for a legislative push in the infrastructure sector with a focus distinct from the broad strokes outlined in the 2018 Trump plan. Earlier this year, approximately 20 administration officials took part in a meeting with the President to discuss aspects of a potential infrastructure plan, including a 13-year spending program, funding for a next-generation wireless network and modernization of the nation's air traffic control system.2 Also, during his February 5 State of the Union address, President Trump emphasized his eagerness to work with Congress on passing infrastructure legislation. As of the date of this alert, however, the administration's short- and long-term plans with respect to infrastructure policy remain unclear.

Congressional Bills

On the congressional side, the House Transportation and Infrastructure Committee3 and the Senate Committee on Commerce, Science, and Technology4 held hearings on February 7 and February 13, respectively, to obtain information from stakeholders on current topics in infrastructure policy. The new chairman of the House T&I Committee, Rep. Peter DeFazio (D-OR), is reported to be drafting infrastructure policy legislation, including a nationwide vehicle-miles-traveled pilot program, climate-resiliency enhancements and the expansion of public and smart technology transportation programs, to be ready by summertime.5

The Senate Committee on Environment and Public Works6 and the House Ways and Means Committee7 each held a hearing on March 6, which respectively focused on the economic benefits of infrastructure investment and possible mechanisms for financing such investment (including options for increasing revenues into or otherwise supplementing the Highway Trust Fund). In advance of the Ways and Means hearing, Representative Earl Blumenauer (D-OR) announced that the House leadership had reserved floor time for an infrastructure bill with a target of late spring.8

In the meantime, other legislators have introduced piecemeal bills to bolster particular aspects of federal infrastructure policy, in particular related to the expansion of tax-exempt private activity bond (PABs) programs.9 On January 16, Senators John Hoeven (R-ND) and Ron Wyden (D-OR) reintroduced the Move America Act, a bill which would introduce a new type of PABs with a volume cap separate from the existing PABs program. These bonds would not be subject to the Alternative Minimum Tax, increasing their attractiveness to certain investors. States could also trade in a portion or all of their bond allocation in exchange for facility or qualified infrastructure fund federal tax credits at a rate of $4 in bond volume cap for every $1 in credit allocation. On March 5, Representatives Blumenauer and Jackie Walorski (R-IN) introduced a companion bill in the House.10 The previous version of this bill attracted a wide range of support from business, labor and infrastructure industry groups.11

On February 6, Senators John Cornyn (R-TX) and Mark Warner (D-VA) reintroduced the Building United States Infrastructure and Leveraging Development (BUILD) Act. 12 This bill would raise the statutory cap in the existing PABs program with respect to bonds issued by or on behalf of state and local governments for highway and freight improvements (which has been the principal use of PABs to date) from $15 billion to $20.8 billion. On February 14, Representatives Blumenauer and Mike Kelly (R-PA) reintroduced the Public Buildings Renewal Act, a piece of legislation which would permit up to an additional $5 billion in PABs to be used to finance qualified government buildings such as schools, courthouses and hospitals.13

Separately, Rep. John Yarmuth (D-KY) is planning to introduce legislation to create up to $300 billion in Rebuild America Bonds—taxable bonds that would be sold by the federal government to private and public pension plans.14 The revenue from the sale of these bonds, including an initial $75 billion issuance from the Treasury, would be used to finance a national infrastructure bank making direct loans for transportation, environmental, energy and telecommunications projects. The bonds, which would be required to be held for a minimum of ten years, would have a 40-year maturity and accrue interest at 200 basis points above the 30-year Treasury bill rate. The hope is that these bonds, like the Build America Bonds (BABs) which were issued widely by states between 2009 and 2010, would appeal equally to investors that do not have tax liability, including pension funds and other long-term institutional investors, and to traditional investors in tax-exempt bonds, including PABs.

In addition, budget authority for highway and transit programs authorized under the 2015 Fixing America's Surface Transportation Act (FAST Act, P.L. 114-94) will expire in September 2020. As part of their consideration of the reauthorization, congressional leaders will consider once again raising the gas tax or implementing a vehicle miles traveled fee in order to ensure long-term solvency of the Highway Trust Fund, as well as other changes to surface transportation programs. To the extent the smaller bills discussed above and others are not enacted on a standalone basis or through a separate infrastructure package, lawmakers may attempt to fold their provisions into the 2020 reauthorization law.

Credit Programs Update


While the Transportation Infrastructure Finance and Innovation Act (TIFIA) and Railroad Rehabilitation and Improvement Financing (RRIF) programs, which are administered by the U.S. Department of Transportation (USDOT), had a relatively quiet 2018, the end of the year saw several successfully completed financings. Two notable closings in December 2018 included a $657.9 million loan to the Central Puget Sound Regional Transit Authority (Sound Transit) for the Lynnwood Link Extension north of Seattle, Washington15 and a $908 million loan to the Dallas Area Rapid Transit System for the Cotton Belt Corridor Regional Rail Project.16 2019 is anticipated to be more active.

Two new bills with bipartisan support were introduced in Congress in November 2018 aiming to expand and encourage greater participation in the TIFIA program. The TIFIA for Airports Act, introduced by Senators Tammy Duckworth (D-IL) and David Perdue (R-GA) would expand TIFIA eligibility to state and local airport projects, including passenger terminals and runways, and authorize up to $10 million in credit subsidies for such projects.17 This concept was included in the Trump administration's 2018 infrastructure outline. Separately, the Revitalizing American Priorities for Infrastructure Development (RAPID) Act, introduced by Senators John Cornyn (R-TX) and Tim Kaine (D-VA), would raise the total debt threshold that triggers the requirement for borrowers to obtain multiple ratings on TIFIA loans from $75 million to $150 million.18 Such ratings would, however, be required to be investment-grade in all circumstances. The bill would also require USDOT to implement a streamlined application for public agency borrowers seeking secured loans rated at least "A" for projects reasonably expected to commence a contracting process within 90 days of entering into such loans, and publish regular status reports on submitted and approved applications for TIFIA credit assistance.


In 2018, the Water Infrastructure Finance and Innovation Act (WIFIA) program, which is administered by the U.S. Environmental Protection Agency (USEPA), closed the first seven loans in its existence totaling over $1.7 billion in credit assistance.19 Notable financings included a $699 million loan to the San Francisco Public Utilities Commission for the replacement of the city's oldest and largest solids treatment facility and a $614 million loan to the City of San Diego for the first phase in its Pure Water water recycling program.

This year, WIFIA has been substantially expanded, with more than triple the number of projects invited to apply relative to 2018 across 16 states.20 New legislative changes may also assist borrowers in taking advantage of the WIFIA program. In particular, the America's Water Infrastructure Act of 2018 (AWIA), signed into law on October 23, 2018, removed WIFIA's "pilot" designation and reauthorized the program at $50 million for each of fiscal years 2020 and 2021 (subject to annual appropriations).21 It also reauthorized the State Revolving Fund (SRF) program for drinking water treatment loans at an average of $1.475 billion per year between fiscal years 2019 and 2021.22

Another notable measure in AWIA facilitates the ability of state infrastructure financing authorities to utilize financing from the WIFIA program for the purpose of funding multiple projects in a single application process.23 The measure, based on a bill introduced by Senators Cory Booker (D-NJ) and John Boozman (R-AR),24 authorizes $10 million over two years to support such bundled projects and permits the state infrastructure financing authorities to use federal funds to cover up to 100 percent of the costs of the projects so long as they are solely responsible for immediate repayment of such costs in the case of a default on the WIFIA loan. States may use WIFIA loan proceeds to support disbursements of loans through their respective SRF loan programs. In this way, the measure may further support the SRF programs by increasing the funds they are able to provide across projects in a given state.


In the background of the new legislative session is be the beginning of the 2020 presidential election season, with an increasingly expansive Democratic primary field. Most, if not all, of the Democratic candidates' primary platforms will likely include environmental policies aimed at reducing the use of carbon in order to protect against climate change. Congressional leaders have taken note. On December 18, Senate Minority Leader Chuck Schumer wrote an Op-Ed in the Washington Post in which he suggested that any infrastructure bill expected to earn Democratic support would need to include clean energy and climate change mitigation components.25 Given the attention on the 2020 race and the position taken by some members of the congressional leadership, it seems likely that any significant bipartisan proposals for comprehensive infrastructure legislation this term will include some "green" elements and, unlike previous bills, include initiatives that explore the intersection between infrastructure and environmental policy. We will continue to monitor congressional negotiations on these subjects and provide updates to industry stakeholders over the coming months concerning significant advances in legislation and other material developments.


1 Paul Epstein, Jackson Murley and David Ullman, Trump Infrastructure Plan Proposes Expansion of Federal Credit Programs, February 20, 2018, https://www.shearman.com/perspectives/2018/02/trump-infrastructure-plan

2 David Shepardson and Alexandra Alper, Exclusive: Trump Meets with Cabinet Officials to Revive Infrastructure PushSources, Reuters, January 18, 2019, https://www.reuters.com/article/us-trump-infrastructure-exclusive/exclusive-trump-meets-with-cabinet-officials-to-revive-infrastructure-push-sources-idUSKCN1PC1A5

3 U.S. House Transportation and Infrastructure Committee, The Cost of Doing Nothing: Why Investing in Our Nation's Infrastructure Cannot Wait, February 7, 2019, https://transportation.house.gov/committee-activity/hearings/the-cost-of-doing-nothing-why-investing-in-our-nations-infrastructure-cannot-wait

4 U.S. Senate Committee on Commerce, Science, and Technology, America's Infrastructure Needs: Keeping Pace with a Growing Economy, February 13, 2019, https://www.ttnews.com/articles/trump-congress-eye-possibility-infrastructure-bill-2019

5 Eugene Mulero, Trump, Congress Eye Possibility of Infrastructure Bill in 2019, Transport Topics, January 3, 2019, https://www.ttnews.com/articles/trump-congress-eye-possibility-infrastructure-bill-2019

6 U.S. Senate Committee on Environment and Public Works, Hearing on the Economic Benefits of Highway Infrastructure Investment and Accelerated Project Delivery, March 6, 2019, https://www.epw.senate.gov/public/index.cfm/hearings?ID=76CB6FB0-8D2C-40B7-ABDB-4848727AB892

7 U.S. House Ways and Means Committee, Our Nation's Crumbling Infrastructure and the Need for Immediate Action, March 6, 2019, https://waysandmeans.house.gov/legislation/hearings/our-nation-s-crumbling-infrastructure-and-need-immediate-action

8 Tanya Snyder, Blumenauer: Leaders Have Reserved Floor Time for Infrastructure, Politico Pro, March 5, 2019, https://subscriber.politicopro.com/transportation/whiteboard/2019/03/blumenauer-leaders-have-reserved-floor-time-for-infrastructure-2800916

9 Move America Act of 2019, S. 146, 116th Cong. (2019), https://www.congress.gov/bill/116th-congress/senate-bill/146

10 Move America Act of 2019, H.R. 1508, 116th Cong. (2019), https://www.congress.gov/bill/116th-congress/house-bill/1508/

11 Press Release: Hoeven, Wyden Reintroduce Move America Act, May 25, 2017, https://www.hoeven.senate.gov/news/news-releases/hoeven-wyden-reintroduce-move-america-act

12 Building United States Infrastructure and Leveraging Development Act, S. 352, 116th Cong. (2019), https://www.congress.gov/bill/116th-congress/senate-bill/352

13 Public Buildings Renewal Act of 2019, H.R. 1251, 116th Cong. (2019), https://www.congress.gov/bill/116th-congress/house-bill/1251

14 Brian Croce, Congressman Floats Bill to Sell Bonds to Pension Funds and Capitalize Infrastructure Bank, Pensions & Investments, December 13, 2018, https://www.pionline.com/article/20181213/ONLINE/181219834/congressman-floats-bill-to-sell-bonds-to-pension-funds-and-capitalize-infrastructure-bank

15 Lynnwood Link Extension, United States Department Of Transportation, https://www.transportation.gov/tifia/financed-projects/lynnwood-link-extension

16 Press Release: U.S. Department of Transportation Announces $908 Million Loan to Finance the Cotton Belt Corridor Regional Rail Project, December 21, 2018, https://www.transportation.gov/briefing-room/us-department-transportation-announces-908-million-loan-finance-cotton-belt-corridor

17 TIFIA for Airports Act, S. 3647, 115th Cong. (2018), https://www.congress.gov/bill/115th-congress/senate-bill/3647/

18 Revitalizing American Priorities for Infrastructure Development Act, S. 3631, 115th Cong. (2018), https://www.congress.gov/bill/115th-congress/senate-bill/3631

19 FY 2017 Selected Projects, United States Environmental Protection Agency, https://www.epa.gov/wifia/wifia-selected-projects

20 FY 2018 Selected Projects, United States Environmental Protection Agency, https://www.epa.gov/wifia/wifia-selected-projects

21 America's Water Infrastructure Act of 2018, Pub. L. No. 115-270, § 4021(a), https://www.congress.gov/bill/115th-congress/senate-bill/3021

22 Id., §2023.

23 Id., §4021(b).

24 See Press Release: Senate Passes Comprehensive Water Infrastructure Bill with Key Booker-Led Provisions, October 10, 2018, https://www.booker.senate.gov/?p=press_release&id=858

25 Chuck Schumer, No Deal on Infrastructure without Addressing Climate Change, Washington Post, December 6, 2018, https://www.washingtonpost.com/opinions/chuck-schumer-mr-president-lets-make-a-deal/2018/12/06/aeae0188-f99e-11e8-8c9a-860ce2a8148f_story.html

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions