Treading Water


May 1, 2012

Another short-term extension of the highway bill prevented a shutdown, but the lack of long-term funding continues to undermine the construction industry.

By Tina Grady Barbaccia, News and Digital Editor

Just two days before the latest extension of the current highway bill — Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) — was set to expire, the House and Senate on March 29 approved a 90-day extension of the federal highway funding.

The Senate quickly passed the legislation and President Obama signed it without fanfare. This measure extends the current funding for road and transit projects until June 30, making this the ninth extension of SAFETEA-LU. The original bill expired on Sept. 30, 2009. SAFETEA-LU’s predecessor, The Transportation Equity Act for the 21st Century (TEA-21), enacted on Aug. 10, 2005, underwent 12 extensions throughout a two-year period.

“While we supported the extension approved today [March 29] to prevent a shutdown of essential infrastructure improvements across the nation, that support should not be confused as acceptance of inaction on a multi-year reauthorization bill,” Transportation Construction Coalition Co-Chairs T. Peter Ruane, president and CEO of American Road & Transportation Builders Association, and Stephen Sandherr, CEO of Associated General Contractors of America, said in a joint statement.

“Our members are growing increasingly frustrated that Congress seems incapable of passing critical legislation that improves the flow of commerce and promotes economic growth,” Ruane and Sandherr continued in the statement. “The construction industry continues to suffer from chronic unemployment and the continued delay in enacting a longer term bill prohibits them from expanding their workforces and investing in new equipment.”

House Speaker John Boehner (R-Ohio) said at his weekly press conference on the day the extension was that the House was planning to take up the highway bill again when legislators returned to Washington, D.C., on April 16 after a spring recess.

The National Stone, Sand & Gravel Association (NSSGA) says its message remains the same as it has been: “Congress must act now to pass a multi-year bill that maintains level funding at a minimum.” The association is urging its member to visit with their own members of Congress while they are in their districts to tell them, “America cannot wait any longer for a new highway bill.”

Following the decision by House Republicans to pass a 90-day stopgap extension of transportation programs, Barbara Boxer (D-Calif.), chair of the Senate Environment and Public Works Committee, said she thinks “it will lead to thousands of job losses across the country.” Boxer called on the House to pass the bipartisan Senate transportation bill, which she says would create or save nearly 3 million jobs. “I will continue to push back to save jobs and stop the Highway Trust Fund from going bankrupt,” she said.

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Aggregates Manager at Rally for the Roads

More than 15 transportation construction industry associations came together in Washington, D.C., on March 20 on the National Mall for the second annual “Rally for the Roads,” a transportation funding advocacy rally, as the current transportation funding bill was less than two weeks away from expiring on March 31. However, a short-term extension passed just in the nick of time on March 29.

During the rally, Peter DeFazio (D-Ore.) pointed out how other countries, including China and Great Britain, are investing. “The people on the other side of the aisle don’t get it,” DeFazio said, reports Aggregates Manager Editor-in-Chief Therese Dunphy, who attended the rally. “They want states to handle it,” he said. “It’s called devolution.”

Barbara Boxer (D-Calif.), chair of the Senate Environment and Public Works Committee, said at the rally that “now is not the time for partisanship or experimentation. No great country can exist when our roads are falling down around us…”

Chairman of Associated Equipment Distributors (AED) Larry Glynn, president and owner of CMW Equipment in St. Louis, Mo., told rally attendees that “Americans cannot afford to wait for a new highway bill while Congress plays politics.”


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‘Illogical, Impractical’

Federal court rules against EPA in wetlands case, calling agency’s actions

A federal court has ruled against the U.S. Environmental Protection Agency (EPA) saying the agency overstepped its authority by revoking a valid wetlands permit from a West Virginia mining operation.

This is a victory for the industry associations that filed a brief last year in Mingo Logan v. EPA — which included the American Road & Transportation Builders Association (ARTBA) and the National Stone, Sand & Gravel Association (NSSGA) — all of which urged the court to block EPA’s decision to revoke a valid wetlands permit.

Although the permit in question was for a coal mining operation, ARTBA and NSSGA highlighted in the brief the potential negative effects such action could have on any industry — including transportation construction — that relies on federal wetlands permits.

Specifically, ARTBA warned, “[t]housands of permit holders…have been relying on the Army Corps of Engineers’ [wetlands] regulations and predictable processes for decades. If the EPA is allowed to change the game, to interfere in the operation of a longstanding permitting system, it will send shockwaves across the country, adversely impacting amici and all the industry participants that they represent.”

In her ruling, Judge Amy Berman Jackson, who was appointed by President Obama, called EPA’s actions both “illogical” and “impractical” and accused the agency of “magical thinking.”

In an amici curiae brief filed in support of the plaintiff after the EPA published a “Final Determination” that suggested a unilateral modification of a Clean Water Act permit that had been issued to Mingo Logan by the U.S. Army Corps of Engineers four years earlier, industry associations unified to fight against the EPA’s “unprecedented” actions.

In the brief, the associations say that, for the first time in the nearly 40-year history of Section 404, the EPA is seeking to “veto” the specification of a disposal site after the permit has been issued. They point out that “the effect of this action is to revoke a permit that has been validly issued by the Corps…Far beyond this specific action, the EPA’s assertion that it has the authority to revoke a valid 404 permit will have wide ranging and deleterious effects on all those individuals and entities that rely on 404 permits.”

If the EPA’s action had been allowed to stand, the associations note, any project relying on wetland permits would be in danger of losing its permits not because planners had done anything wrong, but simply because the EPA changed its mind.

“Never before had the EPA acted against a Corps permit after it was issued,” the associations noted in the brief. “Now, suddenly, the EPA is claiming the power to step in and alter the terms of an existing Corps permit any time it determines that the project’s impacts are ‘unacceptable’ — even when the agency had previously reviewed the permit and assented to its issuance, and even when the permit holder is in full compliance. If the EPA has this authority to revise or revoke Corps permits after they are issued, over the objections of the Corps and the state, Corps permit holders can no longer be sure that their current or future projects are safe from a similar fate.”

There have been three major legal victories recently for the industry. The Mingo Logan decision comes on the heels of two major Supreme Court decisions in the cases of PPL Montana, LLC v. Montana, and Sackett v. EPA. “In both, the Court reigned in EPA attempts to increase the reach of Clean Water Act regulations, removing road blocks that could have needlessly delayed transportation improvements,” ARTBA says in a written statement.

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