In February 2023, Shailen H. Bhatt, then-administrator of the Federal Highway Administration, issued a memorandum titled Policy for Using Bipartisan Infrastructure Law Resources to Build a Better America.  

The memo specifically recognized states’ authority to “determine which of their projects shall be federally funded by federal-aid highway formula dollars.” It also set a list of seven key priorities for such projects, the first of which was “improving the condition, resilience and safety of road and bridge assets consistent with asset management plans,” followed by “promoting and improving safety for all road users.” 

However, Transportation Secretary Sean Duffy rescinded the memo March 10, calling it an act of federal overreach that “displaced the long-standing authorities granted to states by law [and] added meritless and costly burdens related to greenhouse gas emissions and equity initiatives.” 

DOT’s top priorities should be “building critical infrastructure projects that move people and move commerce safely,” Duffy said. 

The specific environmental and social justice elements in the memo include: 

• • prioritizing infrastructure resilience to reduce vulnerability to “a changing climate”;
  • addressing projects’ environmental impacts, such as stormwater runoff and greenhouse gas emissions; 
  • “future-proofing” infrastructure to allow for the installation of emerging technologies like electric vehicle chargers and broadband in existing highway rights of ways; and 
  • including communities, including “disadvantaged and under-represented groups,” in project planning and design. 

The memo also includes specific citations from the U.S. Code and the Infrastructure Investment and Jobs Act, also called the Bipartisan Infrastructure Law, that support its priorities. 

For example, to support its call for addressing environmental impacts, the memo cites a 2021 law that requires states to develop plans to reduce carbon emissions from transportation. Emissions reduction strategies included in the law range from encouraging more use of public transportation and carpooling to designing “transportation assets that result in lower transportation emissions as compared to existing approaches.” 

Similarly, infrastructure resilience is defined as the ability to ride out or recover from emergency events. 

DOT did not respond to questions from NetZero Insider on the specific items in the memorandum that Duffy identified as executive overreach without basis in existing law or advancing a “radical social and environmental agenda.” The memo was removed from the FHWA site sometime after submission of those questions. 

Elaine O’Grady, transportation director for the Northeast States for Coordinated Air Use Management, pointed to the potential public health impacts of Duffy’s rollback of the memo and its support for the deployment of EV chargers.  

“[Shutting] off federal funding for EV chargers will cause unnecessary public exposure to harmful levels of air pollution from cars and trucks,” O’Grady said. “In practical terms, this means more asthma attacks and emergency room visits for our children and more missed days of school and work as a result.” 

‘Foundational Investment’

On Feb. 26, the Senate Committee on Environment and Public Works held a hearing on the implementation of the IIJA, where business and state and local government leaders were unanimous in their support for continuing and increasing federal funding for infrastructure improvements and the projects that have been completed since the law’s passage. 

Russell McMurry, a commissioner at the Georgia Department of Transportation and vice president of the American Association of State Highway and Transportation Officials, praised the flexibility the law gives states “to plan and leverage state and local funds to optimize the use of federal funding. … 

“Georgia’s best successes from the IIJA come from the core formula programs which give us funding certainty so we can properly plan and deliver,” McMurry said in his prepared statement for the hearing. “Federal funding represents a foundational investment towards state of good repair for our highways and bridges. In Georgia, 75% of our capital maintenance program is from the IIJA formula programs and 90% of our bridge program is federally funded.” 

The top challenge to completing IIJA projects is the inflation-driven rise in project costs, he said. McMurry mentioned environmental reviews in the context of delays caused by long permitting timelines; he also said more flexibility, and waivers, are needed for the law’s “Buy America” provisions. 

The most negative comments on the law’s provisions related to environmental impacts and greenhouse gas emissions came from Michael Carroll, deputy managing director of Philadelphia’s Office of Transportation and Infrastructure and president of the National Association of City Transportation Officials. 

He singled out the Promoting Resilience and Operations for Transformative, Efficient and Cost-Saving Transportation (PROTECT) program funded by the IIJA for guidelines specifically focused on climate change and resilience, which he said, have put key Philadelphia projects at risk.  

The city received a $14.2 million PROTECT grant in April 2024 to rehabilitate two bridges, both built in the 1800s, according to information on the FHWA website. 

“‘Safety’ is not a buzzword, neither is ‘repair,’ nor is ‘access to jobs and opportunity,’” Carroll said in his prepared statement. “Americans expect all of you to keep your word and deliver on the expected results in safety, good repair and access to opportunity that are the core of every project and not to breach that trust over semantics.”  

The PROTECT program provides funds for cities, states and tribes “to plan for and strengthen surface transportation to be more resilient to current and future weather events, natural disasters, and changing conditions, such as severe storms, flooding, drought, levee and dam failures.”