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

AuthorBy Tyler Mlakar
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
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.
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.
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.
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)
into the atmosphere annually.
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.”
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.”
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.
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.
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.
Given the
recent legislative attempts to increase federal funding of
“green infrastructure,20 the United States’ reentry into the
Paris Agreement,
and the fact that more than two-thirds
of Americans support initiatives to ght climate change,
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

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