The Gershwin brothers created the indelible image of lazy, warm days of July and August – “summertime, and the livin’ is easy…” When it comes to infrastructure, this summer may be anything but easy.
News came this week that the Obama Administration is threatening a veto if Congress reverts to form and proposes only a temporary extension of the Highway Trust Fund instead of tackling a long-term transportation funding bill. With the expiration of the Trust Fund rapidly approaching at the end of July and members of Congress anxious to leave for summer recess, would the President really precipitate that sort of confrontation? If so, there would be no better indication of the Administration’s willingness to test just how strong the political winds may be blowing at their backs than to provoke Congress on transportation funding.
This veto threat may not be empty rhetoric. After all, on the surface, leaders from both parties have professed their desire to see a long-term funding bill.
There is general agreement that our transportation infrastructure needs are numerous and real. And there has not been in recent memory a more robust quorum of political leaders putting substantive funding alternatives on the table for discussion. The last week in July could get very interesting.
Conflicts over individual projects are also reaching a boiling point. In Maryland, Governor Larry Hogan announced that he was halting state work on the proposed Red Line transit project in Baltimore, but permitting work to proceed on the Purple Line just outside of Washington, D.C., but with a series of belt-tightening conditions. True to his word, the new Governor has not shied away from making tough decisions. His decisiveness does not diminish the controversy associated with his decisions.
For the Purple Line, the Governor outlined over 40 cost-savings measures that he claims would make the light-rail project more of a Chevy than a Cadillac. Reducing public art around the proposed stations probably won’t create much push-back nor will it save that much money.) However, heaping additional financial burden on the local counties pushing for the Purple Line, and hoping that the P3 concessionaires bidding for the project will absorb an approximate $200 million gap from formerly dedicated state funds doesn’t guarantee that the project can go forward.
The Governor’s verdict on the Red Line project is fraught with even greater political peril. The citizens that would have been served by that light-rail are the same ones that suffered from the recent riots following the death of Freddie Gray. Red Line support has been tied to giving poorer communities greater and affordable access to jobs, health care and education. Continuing to promote the investment of state dollars (even at a reduced budget) for some of Maryland’s wealthier counties at the expense of cutting a project clearly dedicated to a more needy population may make economic sense, but will certainly not be an easy sell.
Then there are the numerous cases and administrative challenges being brought around the country dealing with agency decisions under the Clean Water Act wetlands program. As we have reported previously, the Eighth Circuit Hawkes ruling finding that a jurisdictional determination is subject to judicial review is pushing that issue closer to Supreme Court consideration. Recently, that court denied a petition for rehearing en banc, further cementing the circuit conflict. Various pending cases over EPA’s preemptive veto of the Pebble Mine permit in Alaska do not seem to be losing steam. As more and more documents get produced by the agency in response to a litany of Freedom of Information Act requests, the mining company appears to be emboldened and the courts a little more reticent to reject some of the claims out of hand.
Finally, there is the brand new case brought by Marquette County Road Commission against EPA and the Corps over denial of a Clean Water Act Section 404 permit for a proposed county road in Michigan. Any time a complaint includes a two-page table of contents, you know there is an interesting story to be told. The Commission details a history of alleged predetermination against the project, behind-the-scenes agency dealings with project opponents, and an almost unbelievable series of moving permit condition and mitigation targets that they allege were arbitrary and capricious. Even realizing there are always two sides to a story, the Commission’s story is compelling.
None of all this even deals with the ever-growing number of legal challenges to the EPA and Army Corps WOTUS final rule.
The fish may be jumpin’ and the cotton may very well be high, but this summer, the infrastructure battles are just getting going.