Construction Bills: Recent Changes to Construction Laws

• Author: By Brian R. Zimmerman and Rowan T. Mason
• Pages: 42-43

THE CONSTRUCTION LAWYER42 Volume 41, Issue 3

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.

CONSTRUCTION BILLS: RECENT CHANGES

TO CONSTRUCTION LAWS

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-

ing.

2

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