Environment and Energy Get a Front Seat in the 2021 Infrastructure Act

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Upon passing the $1.2 trillion Infrastructure Investment and Jobs Act (H.R. 3684) last week, the Senate provided significant funding towards development of the nation’s environmental and energy infrastructure.

The Infrastructure Act also streamlines environmental review, permitting, and approval of federal infrastructure projects.

The Infrastructure Act includes funding for:

Reinstatement of the Superfund Tax:

The Superfund Tax is an excise tax on specifically listed chemical to fund cleanup at Superfund Sites. The Act reinstates the tax, which is projected to generate $14.4 billion over the next 10 years.

Superfund Remedial Account:

The Act provides $3.5 billion in additional funding over the next 5 years for U.S. EPA to conduct remedial actions at Superfund site. The Act waives state cost sharing requirements and requires U.S. EPA to consider tribal community needs at federally funded Superfund sites.

Brownfields Grants and Loans:

The Act provides $1.2 billion for grants and loans under U.S. EPA’s Brownfields Program over the next 5 years. Brownfield sites are contaminated properties that are remediated and redeveloped for reuse. U.S. EPA’s Brownfields Program, which is authorized under the Superfund statute, provides grants and loans for site characterization and remediation of Brownfields sites.

Water Infrastructure Appropriations:

The Act includes the Drinking Water and Wastewater Infrastructure Act (S. 914) authorization bill, which provides $55 billion in reauthorizations and new funding under the Safe Drinking Water Act and the Clean Water Act, such as:

  • $10 billion in grants for mitigating perfluoroalkyl and polyfluoroalkyl substances (PFAS) in drinking water and wastewater systems.
  • $11.73 billion for lead service line replacement projects and $200 million to address lead in school drinking water systems.
  • $14.65 billion in funding under Drinking Water State Revolving Fund, which provides grants to states to provide loans for waste system infrastructure projects.
Resiliency Projects:

The Act provides $17 billion in funding for resiliency projects and studies by agencies such as U.S. EPA, U.S. Army Corps in areas such as flood mitigation and control, coastal erosion and risk management, disaster mitigation, waste management, drought resiliency, ecosystem restoration, wildfire management, and pollution prevention.

Energy Infrastructure Appropriations:

The Act includes the Energy Infrastructure Act (S. 2377) authorization bill, which includes:

  • $2.5 billion over 5 years to establish grants through the U.S. Dept. of Transportation to create publicly accessible alternative fuel vehicle charging infrastructure.
  • $1 billion each year for 5 years for funding to states creating electric vehicle charging infrastructure.
  • $1 billion each year for 5 years to replace outdated school buses, with 50% of the funds going toward zero-emission and low-emission alternative fuel buses.
  • $65 billion for energy and electric grid infrastructure and resiliency programs, including programs to enhance the current electric grid against extreme weather events, to establish grid flexibility by implementing smart grid technologies, and to conserve energy and reduce carbon emissions in the transportation sector.
  • $3 billion for battery manufacturing and recycling and $200 million for electric drive vehicle battery recycling and second-life applications.
Carbon Capture and Hydrogen, Nuclear, and Hydropower Energy Research:

The Act provides $6.42 billion for grants and loans for carbon storage and reduction programs in areas such as public transportation, traffic control, and intelligent transportation systems. The Act provides over $8 billion for the manufacturing of clean hydrogen and establishment of clean hydrogen hubs, $6 billion in Dept. of Energy supplemental appropriates related to nuclear energy, and $200 million for hydroelectric production and efficiency improvements.

The Infrastructure Act streamlines the environmental review, permitting, and approval of federal infrastructure projects. The Act reinstates a portion of the recently rescinded Executive Order 13801, known as the “One Federal Decision,” which expedites environmental review under the National Environmental Policy Act, or NEPA. This includes a two-year deadline for completing environmental review of major federal projects, limiting the scope of environmental impact statements, and development of categorical exclusions to accelerate federal projects. In addition, the Act amends the Fixing America’s Surface Transportation Act, or FAST Act, by repealing the sunset provision for the streamlining of cross-agency permitting and approval of federal infrastructure project.

The Infrastructure Act is now with the House, which is simultaneously considering a $3.5 trillion budget plan that includes environmental and energy related funding, tax incentives, grants and consumer rebates toward electric vehicles, green energy manufacturing and transportation, and clean energy and weatherization in homes. The budget plan also imposes polluter fees on methane and carbon.

The Infrastructure Act’s ultimate fate is uncertain. While it is likely to pass in some form, it is unclear whether the Act’s existing environmental and infrastructure funding and project streamlining provisions will survive intact. The House is expected to take up both the Infrastructure Act and the budget plan after it returns from break at the end of August.

As the law continues to evolve on these matters, please note that this article is current as of date and time of publication and may not reflect subsequent developments. The content and interpretation of the issues addressed herein is subject to change. Cole Schotz P.C. disclaims any and all liability with respect to actions taken or not taken based on any or all of the contents of this publication to the fullest extent permitted by law. This is for general informational purposes and does not constitute legal advice or create an attorney-client relationship. Do not act or refrain from acting upon the information contained in this publication without obtaining legal, financial and tax advice. For further information, please do not hesitate to reach out to your firm contact or to any of the attorneys listed in this publication.

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