America's Infrastructure: Can We Smooth Out the Bumpy Regulatory Road?

• Publication year: 2022

47 Creighton L. Rev. 287. AMERICA'S INFRASTRUCTURE: CAN WE SMOOTH OUT THE BUMPY REGULATORY ROAD?

AMERICA'S INFRASTRUCTURE: CAN WE SMOOTH OUT THE BUMPY REGULATORY ROAD?

GREG SHIMOKAWA(fn*)

I. INTRODUCTION

The United States can legitimately boast many of the modern wonders of the world. The Golden Gate Bridge and Hoover Dam rank as incredible feats of modern engineering. The last one hundred years have witnessed tremendous development in infrastructure, and we still enjoy the benefits today. Many of these iconic projects served the practical needs of people while being at the forefront of innovation at the time. Notable projects include the bridges, dams, and waterways in the 1930s(fn1) to the Eisenhower Interstate system of highways,(fn2) begun in the 1950s. However, it is striking to note that all of these projects were undertaken over sixty years ago. It seems like it has been a long time since the United States has endeavored to launch projects so ambitious. In the current climate of nationwide financial difficulties, it seems almost inconceivable that we could be so ambitious again in the foreseeable future.

There is great need for a renewal of this ambition. The state of America's infrastructure, the backbone of the system that efficiently moves people, goods, and utilities, is poor at best. The distraction of wars and other crises have largely put addressing the nation's infrastructure needs on the back burner. Infrastructure can easily be taken for granted, with necessary replacement or even upkeep and maintenance often being deferred indefinitely. In reality, infrastructure is not given much thought until there is an interruption in service. Unfortunately, it is too late at the point when it stops working, and the results are often disastrous. Even when there is the desire to be proactive, the layers of regulation in the modern era can be nearly paralyzing.

This Article will first explore the present state of America's infrastructure, chronicling both some of the prominent failures as well as the efforts that have been made in the wake of these failures.(fn3) Second, this Article will examine some of the obstacles that impede infrastructure improvement.(fn4) These obstacles include public awareness, public will, funding availability, and regulatory requirements.(fn5) Third, this Article will examine the American Recovery and Reinvestment Act of 2009,(fn6) commonly known as the Stimulus Act, as an example of some of the challenges that remain even when conditions are favorable because the public awareness and funding availability obstacles have been mitigated.(fn7) Finally, this Article will examine the current policy climate, additional recently-proposed solutions, and possible next steps.(fn8)

The process that is in place to take a project from concept to execution is necessarily complex due to the myriad stakeholders involved. These stakeholders include the various regulatory entities and their constituents. However, it is in the interests of the country and all involved to smooth out the bumpy regulatory road in order to bring our critical infrastructure up to par.

II. THE STATE OF AMERICA'S INFRASTRUCTURE

A. BACKGROUND

For the purposes of this Article, the focus will be primarily on civil infrastructure. There are many types of physical infrastructures upon which we rely, including roads, bridges, and other transportation infrastructures; dams, levees, and other water transmission and waste-water infrastructures; energy generation and transmission infrastructures; and other public facility infrastructures.

It speaks well for the quality of our construction that failures are relatively few and far between. However, over time, we have seen more and more evidence of failures of the infrastructure upon which we depend. For example, even today, the design life(fn9) for new concrete bridges is seventy-five years.(fn10) This means that structures built between the 1930s and 1950s are at nearly the end of their design life, if not beyond it. As of the latest assessment by the American Society of Civil Engineers, "one in nine of the nation's bridges are [sic] rated as structurally deficient, while the average age of the nation's 607,380 bridges is currently 42 years."(fn11) While technology and innovation have served to raise the quality of newer construction, there is no arguing the fact that "[n]early every aspect of" our existing infrastructure is aging.(fn12)

Engineering designs are by nature very conservative, which is a good thing. Choosing to err on the side of caution, designs often incorporate a factor of safety of 2.0 for structures. This means that they are designed to be able to carry twice as much load as they are actually rated for without failing. While a factor of safety of 2.0 does not mean that the structure can actually last twice as long as its stated design life, it also means that it is unrealistic to fear that structures at or beyond the end of their design lives will immediately and abruptly become unsafe. Although not necessarily dangerous per se, a bridge is classified as "functionally obsolete" merely if its design is outdated.(fn13) Examples of factors that render a bridge obsolete are "lower load-carrying capacity, narrower shoulders or less clearance underneath than bridges built to current standards."(fn14) While somewhat alarming, the terms "structurally deficient" or "functionally obsolete" as defined by the Federal Highway Administration are not a reflection of the life safety capabilities of a bridge.(fn15)

However, despite efforts being made to extend the design lives of structures, the sheer amount of deficiencies means that seeing increasing numbers of catastrophic infrastructure failures in the United States would not be too surprising. Additionally, merely extending the service lives of old structures in lieu of full replacement eliminates the opportunity to realize many of the benefits of advances in technology.

B. CATASTROPHIC FAILURES BRING CHANGE

Structures fail for a variety of reasons. Yet very rarely do they fail without some sort of triggering action. These triggers are often acts of nature that are relatively rare in occurrence. Today, we hold our engineered structures to an extremely high standard, and we expect them to be designed to be able to withstand almost any scenario without catastrophic failure or loss of life. It is the memory of these catastrophic failures that often spurs the most vigorous improvement actions.

1. The San Francisco-Oakland Bay Bridge

Other than the chaos of an interrupted World Series game, the iconic image of the 1989 Loma Prieta earthquake in northern California was of a car dangling on the edge of a collapsed section of the eastern span of the San Francisco-Oakland Bay Bridge ("Bay Bridge"). In total, sixty-five people were killed, and thousands more injured.(fn16)Fifty-seven of the sixty-five fatalities were attributed to structural failure.(fn17) It remains the deadliest earthquake to have struck the United States in the last forty years. A section of the steel upper deck of the Bay Bridge collapsed onto the lower deck, resulting in the death of one motorist who drove into the void. As a result, extensive retrofit work was performed on the suspension portion of the bridge, which was originally opened in 1936. The decision was made to completely replace the eastern truss-and-causeway span. Work on the western suspension portion of the bridge was completed in 2004.(fn18) Twenty-four years after the earthquake, the new eastern span was finally scheduled to open in the fall of 2013.(fn19) On September 2, 2013, the new eastern span was finally opened to traffic.(fn20) The retrofit work on the western span and the replacement eastern span addressed and employed the advances in structural and seismic engineering that took place in the decades since the original bridges were completed.

2. Interstate 35 Bridge

A more recent example of the deadly consequences of physical infrastructure failure took place on August 1, 2007, when the bridge carrying Interstate 35 ("I-35") over the Mississippi River in Minnesota collapsed. Thirteen people were killed and over one hundred more were injured.(fn21) Although there was no obvious external trigger for this collapse, roadway construction was taking place on that day.(fn22) The National Transportation Safety Board ("NTSB") report determined that the causes were design error, which was exacerbated by substantial increases in the weight of the bridge as a result of previous bridge modifications, and the concentrated construction loads and traffic on the bridge on the day of the collapse.(fn23)

In the aftermath of the disaster, Representative James Oberstar (D-Minnesota), the House Transportation Committee Chairman at the time, proposed legislation that would raise the federal gas tax in order to fix deficient bridges. That proposal, the Surface Transportation Authorization Act of 2009,(fn24) never became law. To date, Congress has been unable to pass a long-term funding reauthorization, settling instead for a series of shorter-term extensions.(fn25)

After the collapse, the State of Minnesota catalogued 136 structurally deficient bridges within its jurisdiction.(fn26) Responding to the disaster, the State of Minnesota planned to "repair or replace all of those bridges by 2018 with a $2.5 billion program passed by the Legis-lature."(fn27)...