Construction Bills: Recent Changes to Construction Laws

AuthorBy Brian R. Zimmerman and Rowan T. Mason
Published in
The Construction Lawyer
, Volume 41, Number 3. © 2021 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not
be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Investing in America:
Update on Infrastructure
Bill and President Biden’s
Proposed Annual Budget
Perhaps one of the most talked
about goals in Washington,
D.C., today continues to be
infrastructure spending. In
the last issue of Construction
Lawyer, we covered President
Biden’s newly proposed infra-
structure spending bill, the
American Jobs Plan. Washing-
ton has continued to wrestle
with the proposals and, most
recently, a bill has emerged from
the Senate. Additionally, Presi-
dent Biden has put forth his rst
annual budget, which includes
additional infrastructure spending. The following pro-
vides an update on the bill and budget.
Update on Infrastructure Spending Bill
On March 31, 2021, President Biden released the outline
of his infrastructure plan, which called for new spending
of $2.65 trillion over the next eight years. The so-called
American Jobs Plan promised that it would “create mil-
lions of good jobs, rebuild our country’s infrastructure,
and position the United States to out-compete China.”1
Thereafter, a three-way horse race developed. First, on
April 22, 2021, a group of Senate Republicans put forward
their own version of an infrastructure bill, which called for
$568 billion in spending over ve years, though much of
the funding was repurposed from existing federal spend-
The same group of Republicans issued a revised, larger
proposal on May 27, 2021, calling for $928 billion infrastruc-
ture spending.3 Notably, however, that amount included
only $257 billion in new spending, with the balance repur-
posed from existing federal programs, including a substantial
amount from President Biden’s $1.9 trillion Covid Relief
Plan.4 Next, a bipartisan group of senators came forward
with a compromise proposal. The group of at least 20 sena-
tors proposed a deal that would include around $1 trillion in
total spending, with $579 billion of new spending.
President Biden ultimately got behind the bipartisan
version and, on August 10, 2021, the Senate passed the
proposal 69–30.5 The Senate-approved bill calls for almost
$550 billion in new spending and $450 billion in renewed
federal programs. 6 The new spending includes:
$110 billion for roads and bridges;
$66 billion for rail;
$65 billion for power infrastructure;
$65 billion for broadband internet;
$55 billion for drinking water projects;
$50 billion for climate change and
western water projects;
$42 billion for airports, ports, and waterways;
$39 billion for public transit;
$21 billion for environmental remediation works;
$12.5 billion for electric vehicles,
buses, and ferries; and
$12 billion for safety and community programs.
Following Senate approval, the House must take up
the bill. House Speaker Nancy Pelosi committed to put-
ting the bill up for vote in the House by September 27,
2021.7 All indications based on President Biden’s public
statement following passage by the Senate are that he will
sign the bill if passed by the House.8
Passage of the bill is, of course, only the rst step to
investing these funds in the nation’s infrastructure. While
some of the funds are earmarked for specic projects
and recipients, the destination of other funds is less clear.
Additionally, the current bill contemplates signicant pri-
vate investment as a means for increasing the impact of
the spending. For instance, the bill includes a number of
provisions governing the use of public funds in “pub-
lic-private partnerships,” and the issuance of “private
activity bonds,” which allow private sponsors of projects
to reduce nancing costs by gaining access to funds from
tax-exempt municipal bonds.9
President Biden’s Proposed Annual Budget
On May 28, 2021, President Biden released his proposed
scal year 2022 budget, which includes additional infra-
structure spending, much of which is framed as a “down
payment” on the proposals in his American Jobs Plan.
The proposed budget includes $88 billion for the Depart-
ment of Transportation for a variety of new infrastructure
spending. The proposed DOT budget includes the follow-
ing construction-related infrastructure spending:
$13.5 billion on low- or no-emission transit projects;
$2.7 billion to increase support to Amtrack to help
it “modernize, develop and expand passenger rail
service,” including $625 million for its “new compet-
itive Passenger Rail Improvement, Modernization,
and Expansion program” (known as “PRIME”);
Brian R. Zimmerman
Rowan T. Mason
By Brian R. Zimmerman and
Rowan T. Mason

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