On February 26, 2019, the Council on Environmental Quality (CEQ) and Office of Management and Budget (OMB) issued a joint memorandum (Memo) clarifying how state transportation departments that have been delegated responsibility under National Environmental Policy Act (NEPA) should implement federal directives to streamline the environmental review and approvals of major infrastructure projects. While the Memo establishes no new affirmative duties on these state agencies, it reflects yet another step in the Trump administration’s continued efforts to ensure collective adherence to its goal of expediting environmental review under NEPA.
The Los Angeles County Metropolitan Transportation Authority (Metro) is the agency that operates public transportation for all of Los Angeles County. With the passage of Measure M by voters in 2016, Metro has signaled their intent to improve and expand public transit in L.A. County. Just this year, Metro adopted “Twenty-Eight by ’28,” an initiative spearheaded by Mayor Eric Garcetti. The initiative aims to complete 28 major transportation projects by the 2028 Summer Olympic Games, set to be hosted in Los Angeles. This is an ambitious goal. Of the projects listed, 17 are already scheduled to be completed by 2028; however, eight have schedules that would need to be advanced, and three would need new funding resources.
On October 19, 2017, the U.S. Department of Transportation (DOT) released a draft Strategic Plan (the Plan) for public comment. The Plan establishes goals and long-term objectives for increasing investment and streamlining federal environmental review and approval of transportation infrastructure projects over the next five years (Fiscal Years 2018-2022). Comments on the draft Plan are due by November 13, 2017. Continue reading
On July 31, 2017, the Federal Transit Administration (FTA) published a notice of proposed rulemaking in the Federal Register, for a proposed regulation that would establish new, experimental procedures to encourage use of public-private partnerships (P3s), joint developments and other private investment mechanisms in surface transportation capital projects. The rulemaking is linked to a statutory provision in the Moving Ahead for Progress in the 21st Century Act, which requires FTA to identify provisions at 49 U.S.C. chapter 53 and any regulations or practices thereunder that impede greater use of P3s and private investment. Potential private investors in public transportation infrastructure projects, as well as local and state transportation agencies that may be considering mechanisms of private funding, should be aware of the proposed new procedures. Public comments on the proposal are due September 29, 2017.
Rebuilding America’s aging infrastructure is one task that most economists and civil engineers, and most Americans, agree should be at or near the top of President Donald Trump’s agenda. President Trump touted his background as a real estate developer to convince voters that he was best positioned to identify priorities and bring various interest groups together to structure concrete solutions. If he can harness bipartisan support for fixing or upgrading roads, bridges, tunnels, railways, airports, dams and other critical infrastructure, while satisfying Congressional budget hawks, he will fulfill one of his most consequential campaign promises. However, the just announced Trump Tax-Cut Plan, while light on technical detail, would almost certainly enlarge the budget deficit and will complicate any legislative push for infrastructure funding.
Public development and infrastructure projects are on the rise in California. This is a good thing for the economy. But it also means that private property will often be needed to complete these projects. Public agencies may acquire private property upon payment of just compensation, without the owner’s consent, through an eminent domain action. Property near highways, railroads, public utilities, government buildings and other public facilities are frequent acquisition targets for expansion of these facilities, as are those properties in the path of development of growing cities. But virtually any property may be subject to public acquisition, either through condemnation of the entire property or of easements in the property.
Today, my colleague Norman Carlin published an interesting piece discussing a pair of recent decision issued by the Fourth District Court of Appeal upholding a public-private partnership (P3) water project against two California Environmental Quality Act (CEQA) challenges. The two decisions are Delaware Tetra Technologies, Inc. v. County of San Bernardino, 247 Cal. App. 4th 352.(2016) and Center for Biological Diversity v. County of San Bernardino, 247 Cal. App. 4th 326 (2016). Norman’s alert is Saving Private Partnerships: Court Upholds P3 Project against CEQA Challenge under Save Tara.
Historically, investors have pretty clearly found the Peruvian legal framework for procuring, awarding and monitoring concessions to be a favorable one — just since 1996, the country has awarded more than US$20bn in Public-Private Partnership concessions. But a new legislative structure for PPP financings in Peru entered into force at the end of 2015, replacing the prior legal regime and introducing some significant changes. While some commentators have reacted negatively to the new framework, it is my view that the new law is modern, progressive, and provides a mature and comprehensive framework that should continue to attract private investment in Peru’s infrastructure. In an article for Project Finance International, New Peruvian Framework for PPPS, I examine the recently implemented legislation in depth, and arrive at the conclusion that it may prove to be a very useful model for other countries in the region and around the globe. I’m looking at you, Argentina…
Photo: Jorge Gobbi, Estación Villa El Salvador, Taken Feb. 2, 2012 – Creative Commons
We have previously written regarding critical repairs and updates needed for the Nation’s aging infrastructure. We have also noted the need for private investment to get these capital-intensive infrastructure projects off the ground. An Act recently passed with strong bipartisan support by Congress and expected to be signed into law as early as this week by President Obama seeks to promote private investment in water infrastructure projects through innovative financing programs and the use of public-private partnerships (“P3s”).
The Water Resources Reform and Development Act of 2014 (“WRRDA”) (H.R. 3080) establishes a five-year pilot program – the Water Infrastructure Finance and Innovation Act (“WIFIA”) – which provides low-interest federal loans and loan guarantees for major water infrastructure projects. WIFIA authorizes the Army Corps of Engineers and the Environmental Protection Agency to provide up to $175 million in direct loans and loan guarantees for the construction of critical water infrastructure projects, including those delivered through P3s. WIFIA is modeled after the Department of Transportation’s Transportation Infrastructure Finance and Innovation Act, a successful federal program which has supported major P3 transportation projects.
In addition, WRRDA creates a separate 15-project pilot program – the Water Infrastructure Public-Private Partnership Program – to assess the use of P3s to accelerate projects in such areas as hurricane, storm, and flood damage reduction; coastal harbor improvement; and aquatic ecosystem restoration. These pilot projects authorize the Army Corps of Engineers to enter into agreements with private entities and state and local governments to help address a significant project backlog.
It is estimated that the U.S. water and sewer infrastructure will need an investment of between $600 billion and $1 trillion in the coming decades. Given the magnitude of capital needed and the critical nature of these projects, P3s seem to be an ideal structure for accomplishing the work, particularly given the current financial pressures faced by the government and its agencies. If WRRDA and its programs prove successful, it makes sense to expand such financing programs and encourage the use of P3s to fund projects addressing other sectors of the Nation’s infrastructure.
Co-head of Pillsbury’s Energy Industry team Rob James and project finance partner Philip Tendler recently published 2014 Project Finance – United States. In it, they discuss collateral, how security interests are perfected and prioritized, liens, and enforcement of collateral. In addition, they touch on bankruptcy, foreign exchange, remittances, repatriation, offshore and foreign currency accounts, foreign investment and ownership restrictions, insurance, and natural resources. They conclude with a section on financing of recent public-private partnership (PPP) transactions in the United States.
Reproduced with permission from Law Business Research Ltd. This article was first published in Getting the Deal Through – Project Finance 2014 (published in August 2013; contributing editor Phillip Fletcher, Milbank, Tweed, Hadley & McCloy LLP).
For further information, please visit Getting The Deal Through