By Nick Goldstein, vice president of regulatory and legal issues, ARTBA

President Joe Biden released new executive orders this week advancing policy priorities that will affect the federal-aid transportation programs. 

On Jan. 25, the president signed an executive order (EO) entitled “Ensuring the Future Is Made in All of America by All of America’s Workers,” revising the process through which federal agencies grant waivers from “Buy America” and similar laws. Most notable is creation of a “Made in America” Office within the White House Office of Management and Budget. This new entity will evaluate all federal agency requests for waivers from Buy America regulations. The order also creates a public website where all granted waivers would be posted.

In reading about this EO, it is important to understand that it impacts both the “Buy American” and “Buy America” statutes. The Buy American law dates to 1933 and primarily applies to direct federal procurement. The Buy America law (no “n”) dates to 1982 and is more familiar to ARTBA members. It requires that steel or iron components “permanently incorporated” in federal-aid highway and transit projects be manufactured in the United States, subject to certain possible waivers and exemptions.

ARTBA notes that centralizing the waiver process could adversely impact the timeliness of waiver decisions, which is critical to keeping transportation infrastructure projects moving.  In a similar issue with the Trump administration, the Federal Highway Administration (FHWA) approved few such waivers, and in many cases never reached a decision either way. In our dialogue with the new administration, ARTBA will emphasize the importance of maintaining a timely and objective waiver process in order to maximize the economic benefits of projects.

On Jan. 27, President Biden signed a wide-ranging EO, “Tackling the Climate Crisis at Home and Abroad,” establishing a government-wide climate strategy impacting multiple federal agencies, including the U.S. Department of Transportation (U.S. DOT). Specifically, the order requires every agency to submit a “climate action plan” on how it will address climate change, and orders a transition to zero-emission vehicles within each federal agency’s fleet. For transportation projects, the EO directs the government to “ensure that Federal infrastructure investment reduces climate pollution” and that greenhouse gas emissions be considered in all federal permitting decisions.  Additionally, the order also mandates consideration of “environmental justice,” meaning U.S. DOT will be considering the impact future transportation projects could have on historically underserved and disadvantaged communities.

The new climate EO reflects similar policy priorities from the Obama administration. As we did then, ARTBA argues that greenhouse gas emissions should not be factored into federal permitting decisions without the express intent of Congress through statute. ARTBA will maintain a healthy dialogue with the Biden administration on these issues and report on developments as they occur.