Taking the Road Less Traveled: Highway Construction and the Carbon Credit Bonus

• Author: By Tyler Mlakar
• Pages: 30-40

THE CONSTRUCTION LAWYER30 Volume 42 Issue 1 2022

Published in

The Construction Lawyer

, Volume 41, Number 4. © 2022 American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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CARBON CREDITS

Taking the Road Less Traveled:

Highway Construction and the

Carbon Credit Bonus

By Tyler Mlakar

The ramifications of climate

change are being felt worldwide.

Among other things, climate

change has the potential to

prompt more frequent extreme

weather events, droughts, wild-

fires, drastic increases in sea

levels, an unprecedented loss in

biodiversity, and rising human

vulnerability to diseases.1 Cli-

mate change is a by-product of greenhouse gas (GHG)

emissions.2 GHGs are gases that trap heat in the atmo-

sphere. The more GHGs that are emitted, the more heat is

trapped in the atmosphere, creating a “greenhouse effect.”3

Most scientists agree that the greenhouse effect, in turn,

causes the global climate to change.4

GHG emissions are produced by a number of human

activities such as energy production, construction, trans-

portation, and agriculture.

5

According to the U.S. Global

Change Research Program (USGCRP) and the Intergov-

ernmental Panel on Climate Change (IPCC), substantial

reductions in GHG emissions are required by midcentury

to limit global warming to no more than 2°C, and ideally

1.5°C, thereby minimizing the risk of the severe impacts

of climate change.

6

Specically, industrialized countries

must reduce their GHG emissions by at least 80 percent

below 1990 levels by 2050 to stay within the 2°C target.7

The construction industry is one of the world’s largest

GHG emitters, releasing billions of tons of carbon diox-

ide (CO2)

8

into the atmosphere annually.

9

According to a

recent International Energy Agency (IEA) report, in 2018,

the buildings and construction sector alone accounted

for 39 percent of global CO2 emissions.10 Highway con-

struction alone accounts for approximately 13 percent of

the construction industry’s CO2 emissions in the United

States.11 Large quantities of GHGs are emitted not only

in the actual construction phase, but also in “producing

and acquiring materials for the construction, mainte-

nance, and rehabilitation of highway infrastructure.”

12

For example, highway construction requires an enormous

amount of concrete—“the carbon . . . emissions from the

production of [which] are so high that if concrete were

a country, it would be the third-largest emitter of CO2

behind China and the United States.”

13

Indeed, produc-

ing the concrete alone for a mile of a single interstate

lane can result in hundreds of tons of CO2 emissions.14

Putting this gure into perspective, there are currently

4.2 million miles of public roads in the United States.

15

The combination of construction of new roads, recon-

struction of old roads, and maintenance of existing roads

produces huge amounts of CO2 emissions. This prob-

lem will worsen as the population and concomitant trafc

demand increase. Indeed, over the next several decades,

the United States “alone is projected to construct 6 mil-

lion km of roadway[.]”16 As the online commerce sector of

the global economy continues to grow, road maintenance

and construction will become increasingly important for

shipping purposes. Thus, the highway construction sector

has a signicant role to play in reducing GHG emissions.

17

Ninety-seven percent of United States roads are under

the jurisdiction of state and local governments.18 Thus, it

is largely up to state and local transportation agencies

(agencies) to implement strategies to reduce GHG emis-

sions associated with highway construction.

19

Given the

recent legislative attempts to increase federal funding of

“green infrastructure,”20 the United States’ reentry into the

Paris Agreement,

21

and the fact that more than two-thirds

of Americans support initiatives to ght climate change,

22

the time is ripe for state and local governments to adopt

aggressive CO2 reduction policies.

To date, the road to reduced CO2 emissions in the

highway construction industry has been paved with great

intentions, but limited successes. It is time for a simple

solution that aligns stakeholders’ interests and provides

a market incentive for highway contractors to adopt CO2

reduction strategies. Agencies can provide this solution by

implementing a “Carbon Credit Bonus (CCB)” in public

construction contracts; this would incentivize highway

contractors to adopt more climate-friendly construction

methods and materials, invest in greener technologies, and

ultimately reduce the highway construction industry’s car-

bon footprint.

The CCB would work much like an early completion

bonus (already used in at least 46 states and the District

of Columbia).23 At the beginning of the project, the state

would calculate the baseline projected CO2 emissions for

the project. During the project, the contractor will docu-

ment the ways it implemented carbon reduction strategies

to reduce the CO2 emissions of the project—for example,

by using biofuels, electric vehicles, “warm-mix” asphalt,

Tyler Mlakar