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ORAL ARGUMENT NOT YET SCHEDULED

No. 17-5132, 17-5161, 17-5174, and 17-5175 (Consolidated)

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

JOHN M. FITZGERALD, ET AL.,

Plaintiffs-Appellees/Cross-Appellants,

v.

FEDERAL TRANSIT ADMINISTRATION, ET AL.,

Defendants-Appellants/Cross-Appellees,

STATE OF MARYLAND,

Intervenor Defendant-Appellant/Cross-Appellee.

On Appeal from the United States District Court

for the District of Columbia

Case No. 1:14-cv-01471 (Hon. Richard J. Leon)

AMICUS CURIAE BRIEF OF AMERICAN ROAD & TRANSPORTATION

BUILDERS ASSOCIATION IN SUPPORT OF DEFENDANTS-

APPELLANTS FOR REVERSAL OF DISTRICT COURT

James M. Auslander (counsel of record) Nick Goldstein, Esq.

Gus B. Bauman American Road & Transportation

BEVERIDGE AND DIAMOND, P.C. Builders Association

1350 I Street, N.W., Suite 700 250 E Street, S.W., Suite 900

Washington, DC 20005-3311 Washington, DC 20024

(202) 789-6009 (202) 683-1005

[email protected] [email protected]

[email protected]

Attorneys for Amicus Curiae American Road

& Transportation Builders Association

Dated: August 23, 2017

USCA Case #17-5132 Document #1689991 Filed: 08/23/2017 of 26

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CIRCUIT RULE 28(A)(1) CERTIFICATE AS TO PARTIES, RULINGS,

AND RELATED CASES

Parties and Amici: Except for the American Road & Transportation

Builders Association (“ARTBA”), all parties, intervenors, and amici appearing

before the district court and in this court are listed in the opening brief for

Defendants-Appellants Federal Transit Administration (“FTA”), et al.

Rulings under Review: References to the rulings at issue appear in the

opening brief for Defendants-Appellants FTA, et al.

Related Cases: This consolidated case is on appeal from the United States

District Court for the District of Columbia, No. 14-1471 (RJL), Friends of the

Capital Crescent Trail, et al. v. Federal Transit Administration, et al. This case has

not previously been before this Court. Counsel is not aware of any related cases

involving substantially the same parties and the same or similar issues pending

before this Court or any other court.

Dated: August 23, 2017 /s/ James M. Auslander

James M. Auslander

BEVERIDGE & DIAMOND, P.C.

Attorney for Amicus Curiae ARTBA


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WRITTEN REPRESENTATION OF CONSENT

ARTBA represents that all parties have consented to the filing of this brief

by ARTBA as amicus curiae. ARTBA further certifies that no party’s counsel

authored this brief in whole or in part; no party or party’s counsel contributed

money intended to fund preparing or submitting the brief; and no person other than

ARTBA and its members contributed money intended to fund preparing or

submitting the brief.


James M. Auslander




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CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, and

Circuit Rule 26.1, amicus curiae ARBTA states (a) that it is a District of Columbia

nonprofit trade organization that represents the collective interests of the U.S.

transportation construction industry before the national executive, legislative, and

judicial branches of government; (b) that it is an umbrella group for more than

7,500 members from all sectors and modes of the transportation construction

industry (including without limitation roads, public transit, airports, ports, and

waterways); and (c) that it has no parent corporations and that no publicly held

company owns any stock in it.


James M. Auslander




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CERTIFICATE IN SUPPORT OF SEPARATE BRIEF

Pursuant to D.C. Circuit Rule 29(d), undersigned counsel certifies that a

separate brief is necessary. All of the Defendants-Appellants in this case are

federal and state governmental entities, and the amici curiae in the district court

below were local government entities. Amicus curiae ARTBA represents the

private transportation construction industry and its unique interests in timely,

orderly, and efficient project development. By providing industry perspective and

experience to place the district court’s decisions on appeal into their appropriate

broader context, ARTBA is well situated to assist this Court in rendering its

decision.


James M. Auslander




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TABLE OF CONTENTS

CIRCUIT RULE 28(A)(1) CERTIFICATE AS TO PARTIES, RULINGS,

AND RELATED CASES ......................................................................................... II

WRITTEN REPRESENTATION OF CONSENT .................................................. III

CORPORATE DISCLOSURE STATEMENT ...................................................... IV

CERTIFICATE IN SUPPORT OF SEPARATE BRIEF ......................................... V

TABLE OF AUTHORITIES ................................................................................. VII

GLOSSARY OF ACRONYMS AND ABBREVIATIONS................................. VIII

STATEMENT OF INTEREST ............................................................................... IX

STATEMENT OF ISSUES PRESENTED................................................................ 1

SUMMARY OF ARGUMENT ................................................................................. 1

ARGUMENT ............................................................................................................. 3

I. The District Court’s Opinion on Public Transit Ridership Does Not

Implicate NEPA. .............................................................................................. 3

II. The Ruling Below Would Deter and Obstruct Critical Transportation

Projects............................................................................................................. 8

CONCLUSION ........................................................................................................ 14

CERTIFICATE OF COMPLIANCE OF BRIEF .................................................... 16

CERTIFICATE OF SERVICE ................................................................................ 17


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TABLE OF AUTHORITIES

CASES

Grunewald v. Jarvis,

776 F.3d 893 (D.C. Cir. 2015)............................................................................... 6

Metro. Edison Co. v. People Against Nuclear Energy,

460 U.S. 766 (1983) ..........................................................................................6, 8

Nat’l Comm. for the New River v. FERC,

373 F.3d 1323 (D.C. Cir. 2004)............................................................................. 7

Statutory Authorities

42 U.S.C. § 4332(2)(C) .............................................................................................. 4

Rules and Regulations

23 C.F.R. § 771.130(a)(2) .......................................................................................... 4

23 C.F.R. § 771.130(c) ............................................................................................... 5

40 C.F.R. § 1502.9(c)(1)(ii) ....................................................................................... 4

40 C.F.R. § 1508.11 ................................................................................................... 4

40 C.F.R. § 1508.14 ...................................................................................................6

Other Authority

Exec. Order No. 13807, Establishing Discipline and

Accountability in the Environmental Review and

Permitting Process for Infrastructure, § 2(f) (Aug. 15, 2017) .................................... 9


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GLOSSARY OF ACRONYMS AND ABBREVIATIONS

Pursuant to D.C. Circuit Rule 28(a)(3), the following is a glossary of

acronyms and abbreviations used in this brief.

ARTBA American Road & Transportation Builders Association

EIS Environmental Impact Statement

FTA Federal Transit Administration

JA Joint Appendix

NEPA National Environmental Policy Act

P3 Public-Private Partnership

SEIS Supplemental Environmental Impact Statement

WMATA Washington Metropolitan Area Transit Authority


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STATEMENT OF INTEREST

This matter involves a challenge to a public-private partnership (“P3”)

transit project by and in the State of Maryland known as the Purple Line. ARTBA

regularly participates in litigation that impacts transportation projects. ARTBA

supports the Purple Line and similar P3 and non-P3 transportation projects.

Founded in 1902, ARTBA’s membership includes private and public sector

members that are involved in the planning, designing, construction and

maintenance of the nation’s roadways, bridges, ports, airports, and transit systems.

The transportation construction industry generates more than $380 billion annually

in U.S. economic activity and sustains more than 3.3 million American jobs.

ARTBA maintains ongoing and thorough involvement in federal legislative,

policy, regulatory, and legal developments relating to transportation infrastructure

development and investment. This includes P3s in transportation, with which

ARTBA has a long history. ARTBA’s P3 Division dates back nearly 30 years and

includes prominent concessionaires, planning and design firms, contractors,

financial entities, and other parties in the P3 field.


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STATEMENT OF ISSUES PRESENTED

ARTBA adopts the statement of issues set forth in the opening brief of

Defendants-Appellants FTA, et al.

SUMMARY OF ARGUMENT

This case involves a non-environmental policy disagreement masquerading

as a National Environmental Policy Act (“NEPA”) claim against a critical State of

Maryland transit project known as the Purple Line. Appellees in Chevy Chase,

Maryland dislike the project and challenged a federal approval for it. The district

court held, correctly, that “[t]he law only requires that defendants take a ‘hard

look’ at the project’s environmental impacts during the NEPA process, and it is

clear to me that they did so.” Joint Appendix (“JA”) 935. The district court denied

all of Appellees’ environmental claims under NEPA and other statutes.

That dismissal should have fully disposed of Appellees’ NEPA claim. The

district court further acknowledged that it “may not substitute its judgment for that

of [the] agency.” JA822-823. But then it did the opposite. Though finding no

issue with the government’s environmental analysis, the district court questioned

the wisdom and cost-effectiveness of the light-rail Purple Line based solely on

perceived safety and ridership concerns with Metrorail, a heavy-rail system that

does not include the Purple Line. In essence, the district court asked whether the

Purple Line would carry enough people to be worth its cost in that court’s view.


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The district court then styled its policy reservations as a novel NEPA violation.

But the project’s merit has nothing to do with NEPA’s assessment of

environmental impacts. Whether Purple Line light-rail cars carry 100 riders or 50

riders has no bearing on the physical footprint of the project. NEPA cannot be

used to justify on ridership grounds the blocking of a contracted critical

infrastructure project that received a federal approval after, as the district court

concedes, exhaustive environmental study under NEPA.

The Purple Line, a project 29 years in the making, is one of the first P3

transit projects in the nation. It has painstakingly complied with NEPA and other

applicable federal, State, and local laws and duly adopted plans. It has

overwhelming support by the general public of Montgomery and Prince George’s

Counties. Construction is finally imminent. Yet, the district court’s lengthy delays

and unprecedented application of NEPA imperil the whole project. Only this

Court can apply NEPA correctly so that this long-needed, fully vetted, P3

transitway may be fully realized and open its light-rail train doors to all in 2022.

The import of the ruling below is not limited to Maryland’s Purple Line.

Unless reversed, this precedent also will have adverse consequences for complex

transportation and related infrastructure projects across the country. Allowing a

court – at the culmination of years of environmental reviews and planning – to


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superimpose its own views on whether a given project is good policy or cost-

effective is not only wholly inappropriate legally but also would create significant

uncertainty for ARTBA and its members by threatening carefully planned project

funding, schedules, and construction. Particularly for P3s, the district court’s

holding injects new delay and litigation risks, thereby stifling the growth of this

key financing mechanism to leverage and combine governmental and private

dollars and responsibilities to meet the nation’s exigent transportation needs. The

district court’s grant of partial summary judgment to Appellees should be reversed.

ARGUMENT

I. THE DISTRICT COURT’S OPINION ON PUBLIC TRANSIT

RIDERSHIP DOES NOT IMPLICATE NEPA.

The proceedings below largely focused on whether the government’s NEPA

review for the Purple Line already had adequately considered information on

Metrorail’s own ridership and safety, or must be supplemented to do so. But the

Court need not reach that question because those subjects are beyond the scope of

required NEPA review. NEPA calls for a hard look at the environmental impacts

of a federal agency action, and the district court unequivocally has held – twice –


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that the government did that here.1 In short, nothing remains under NEPA that

could warrant more agency studies and unnecessary delays that place the entire

Purple Line project at funding risk (thereby serving Appellees’ ultimate goal of

killing the project through added delay and cost).

The district court acknowledged that under NEPA, “[t]he Court’s obligation

is simply to determine that the agency has taken a hard look at the project and has

adequately considered and disclosed the environmental impact of its actions.”

JA934 (internal citation omitted). That is because the National Environmental

Policy Act requires, for major federal actions “significantly affecting the quality of

the human environment,” preparation of an Environmental Impact Statement

(“EIS”), detailing “the environmental impact of the proposed action” (emphases

added). 42 U.S.C. § 4332(2)(C); 40 C.F.R. § 1508.11. Similarly, a Supplemental

EIS (“SEIS”) is triggered by new information “relevant to environmental

concerns” and that “would result in significant environmental impacts not

evaluated in the EIS” (emphases added). 40 C.F.R. § 1502.9(c)(1)(ii); 23 C.F.R.

§ 771.130(a)(2). Moreover, “environmental studies” may be performed to

1 The district court properly dismissed Appellees’ environmental claims for the

reasons stated in the district court’s opinions dated June 9, 2017, and July 31,

2017, and in the opening appellate briefs by the federal government and by the

State of Maryland. As amicus, ARTBA will not repeat those arguments here.


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determine if a Supplemental EIS is necessary. 23 C.F.R. § 771.130(c) (emphasis

added).

As it detailed in two opinions, the district court is “convinced” that the

government adequately considered all environmental impacts.2 Appellees’ NEPA

claims thus fail. Nonetheless, the district court went on to speculate that Metrorail

ridership might collapse, and then faulted the government for not supplementing its

EIS to address how the Purple Line’s own ridership might be affected in turn.

But the Washington Metropolitan Area Transit Authority’s (“WMATA”)

Metrorail ridership and safety do not trigger an SEIS for Maryland’s Purple Line

transitway. The opinions below fail to identify any potential environmental

impacts related to the Metrorail information. The district court, citing to no

pertinent legal authority, assumes that such a Metrorail ridership “impact” or

“effect” requires a “hard look,” but nowhere explains its flawed premise that this is

a NEPA issue in the first place.3 It is not.

2 JA935 (“I am convinced that the FTA reasonably considered and [sic] the

project’s possible alternatives and has carefully considered the environmental

impacts of the project.”); JA1017 (“defendants had, in my judgment, taken a ‘hard

look’ at the Purple Line’s environmental impacts during the NEPA process”).

3 E.g., JA819-820 (district court describing “overarching issue” as “the necessity

of an SEIS addressing the potential impact of WMATA’s ridership and safety

issues”).


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Ridership and other economic concerns do not trigger NEPA where, as here,

they are unrelated to environmental impacts. The regulatory definition of “human

environment” relevant under NEPA declares that “economic or social effects are

not intended by themselves to require preparation of an environmental impact

statement.” 40 C.F.R. § 1508.14. An ongoing EIS discusses economic or social

effects when “natural or physical environmental effects are interrelated.” Id.

Consistently, the Supreme Court and this Court have made clear that NEPA

“does not require the agency to assess every impact or effect of its proposed action,

but only the impact or effect on the environment” – specifically “the physical

environment.” Metro. Edison Co. v. People Against Nuclear Energy, 460 U.S.

766, 772 (1983) (emphasis in original).4 “If a harm does not have a sufficiently

close connection to the physical environment, NEPA does not apply.” Id. at 778

(“psychological health and community well-being of residents of the surrounding

area” was not within proper scope of NEPA review for nuclear power plant

permit); Grunewald v. Jarvis, 776 F.3d 893, 907 (D.C. Cir. 2015) (agency need not

consider psychological harm in NEPA review for plan to cull deer in Rock Creek

Park). Likewise, an SEIS is warranted only when “new information provides a

4 Highlighting its error, the district court relied upon the lower ruling in that case

that was reversed by the Supreme Court. JA0667, n.2.


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seriously different picture of the environmental landscape.” Nat’l Comm. for the

New River v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (emphasis in original)

(no SEIS required for natural gas pipeline approval).

The district court invoked this SEIS standard but then ignored “of the

environmental landscape.” JA824. There is not even an allegation in this case that

any “effect” the district court believed the government failed to consider would

interrelate with the physical environment. Indeed, the footprint of the Purple

Line’s light-rail tracks, stations, and other physical elements are wholly

independent of how many people ultimately ride in each car. What is more,

Defendants-Appellants here went above and beyond NEPA’s requirements and

responded to the district court by performing an assessment of different Metrorail

scenarios, which found no meaningful impact on Purple Line operations because

the project would not physically change at all.5

At base, the district court openly queried whether Purple Line ridership

justifies its cost per passenger, including to taxpayers. This is not and cannot be

grounds for a NEPA violation. Moreover, this plainly exceeds the district court’s

5 If Metrorail safety and ridership were within the scope of NEPA (which they are

not), ARTBA concurs with the federal government and State opening appellate

briefs that Appellees did, in fact, sufficiently consider such information in the

record and appropriately declined to prepare an SEIS.


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own articulation of its limited standard of review. It is not a court’s role to second-

guess the economic projections of expert agencies, the policy views of officials at

the local, State, and federal levels, and widespread public support in the two

Maryland counties where the project is located. See Metro. Edison, 460 U.S. at

777 (“Neither the language nor the history of NEPA suggest that it was intended to

give citizens a general opportunity to air their policy objections to proposed federal

actions. The political process, and not NEPA, provides the appropriate forum in

which to air policy disagreements.”). The district court erred in not dismissing

Appellees’ NEPA claim in toto, and this Court should reverse that ruling.

II. THE RULING BELOW WOULD DETER AND OBSTRUCT

CRITICAL TRANSPORTATION PROJECTS.

As evidenced by this amicus brief on behalf of the broader transportation

construction industry, this case is being watched not only by those with a direct

stake in the Purple Line. The precedent created by the district court’s ruling also

would dim the prospects for pending and future critical transportation projects. If

plaintiffs or courts can upend the culmination of the onerous NEPA process for

economic or policy reasons having nothing to do with the environment, the ensuing

uncertainty and delay would discourage public and private investment needed to

rebuild and improve the country’s transportation infrastructure. These concerns

are particularly heightened for P3s, which are central to modern infrastructure


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financing and development.

It is a well-known fact that the United States’ transportation system,

including transit, is in disrepair and in desperate need of substantial upgrades. In

the 2016 campaign, both Republicans and Democrats championed a renewed focus

and targeted investment in infrastructure. The current Administration, like others

before it, has undertaken multiple efforts to improve the timeliness of the

environmental review process. Most recently, an August 15, 2017 Executive

Order declared a national policy “to conduct environmental reviews and

authorization processes in a coordinated, consistent, predictable, and timely

manner in order to give public and private investors the confidence necessary to

make funding decisions for new infrastructure projects,” including transit and other

modes of surface transportation.6

ARTBA and its members are on the front lines delivering transportation

projects. More recently, P3s have gained increasing prominence in successfully

leveraging combined public and private resources to implement these needed

6 Exec. Order No. 13807, Establishing Discipline and Accountability in the

Environmental Review and Permitting Process for Infrastructure,

§ 2(f)) (Aug. 15, 2017), https://www.whitehouse.gov/the-press-

office/2017/08/15/presidential-executive-order-establishing-discipline-and-

accountability.


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transit systems, roads, bridges, and other projects. ARTBA’s P3 Division dates

back nearly 30 years and includes prominent concessionaires, planning and design

firms, contractors, financial entities, and other parties in the P3 field.

While there are several types of P3s that vary in scope, their core feature is

the sharing of responsibility and risk between the public (State or local) project

sponsor and private entities in some or all of designing, building, financing,

operating, and maintaining the project. P3s rely on legislative authorization by the

individual States. Between 1989 and 2011, 24 states and the District of Columbia

have used a P3 process to achieve at least 96 transportation projects worth a total

$54.3 billion.7 In the past three and a half years, 37 surface transportation-related

P3 projects were brought to financial close in the U.S., totaling $31.55 billion in

investment.8

The Purple Line is one of the first P3 transit projects in the nation, and the

first in the State of Maryland. Maryland enacted comprehensive amendments to its

7 William Reinhardt, The Role of Private Investment in Meeting U.S.

Transportation Infrastructure Needs, Transp. Dev. Found., at 8 (May 2011),

http://www.pwfinance.net/document/research_reports/0%20artba.pdf (“Reinhardt

Report”) (executive summary attached in Addendum).

8 Public Works Financing, International Major Projects Database (2017) (excerpts

attached in Addendum).


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P3 legislation in 2013.9 The Purple Line is among seven transit projects that have

come to financial close since 2014, totaling $9.57 billion.10

Other transit P3

projects across the country are currently in the planning pipeline.

Any P3 entails a lengthy, complex, and arduous process.11

First, P3 project

sponsors (often State, regional, or local transportation agencies) must build

significant community, political, and legislative support for their efforts. Then,

careful consideration and negotiation must go into the planning, permitting,

procurement, design, building, financing, operation, and maintenance for the multi-

decade anticipated life of a P3 project, as well as the corresponding allocation of

responsibility and risk among the parties to a P3. To ensure integrity, the public

sponsor for a project typically must conduct a lengthy, transparent, and competitive

solicitation before selecting a P3 project development team. Other complicating

factors for a P3 agreement include, but are not limited to, the terms of financing

(debt or equity), availability and means of public financing or credit assistance,

tolling (existence and rates), project duration, public sponsor buyback options,

9 H.D. 560, 443

rd Sess. (Md. 2013).

10 Public Works Financing, International Major Projects Database (2017) (excerpts


11 See, generally, Reinhardt Report (more fully describing obstacles for

establishing and implementing a P3).


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taxation, and performance monitoring.

The key import of all these moving parts is that P3s take enormous time, and

effort, and thus certainty is paramount. The Purple Line, for example, took

approximately two years from inception of the Maryland P3 process until selection

of a P3 development team. The P3 selection process, and the parallel NEPA

review, yield project schedules that must be met to control total costs and the

timing of those costs.

The lower court’s decisions on appeal by the United States and Maryland,

however, are anathema to this needed certainty. Instead, they inject new risks into

the 47-year-old NEPA process, whereby fully conducting all required

environmental reviews would no longer be sufficient. Rather, apart from any

environmental issue, a court reviewing the claims of any project opponent, at any

time, could proffer a different economic or political decision than the expert local,

regional, State, or federal agency proponent of the project, and remand for more

“NEPA review.”

Even if the end product of a remand should later satisfy a court, the costs of

such project delay can be substantial, even fatal. For example, interest rates may

change, rendering the same project more costly than before it was litigated.

Intervening elections could result in newly-elected officeholders who want to


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assess the project anew from their own unique perspective. In the interim,

continued or increasing transportation congestion in the region awaiting the new

project could result in increased travel times, wasted fuel, and foregone

opportunities for economic development. For P3 and non-P3 projects, a single

month of delay can increase project costs by 1.5% for a project costing $28.5-

$85.2 million.12

The Purple Line construction cost is more than $2 billion. In one

recent study of P3s, delays in obtaining government approvals or adverse changes

in the law were among the most significant factors in increasing project costs.13

The district court here has already occasioned significant delays and costs,

and if its unprecedented ruling is upheld, it would do the same for other planned

transit projects. An even more uncertain NEPA process will render P3s less

attractive to potential private partners. Ultimately, in Maryland and other states,

the rogue application of NEPA could result in hesitancy to undertake complex,

12

Curtis Beaty et al., Assessing the Costs Attributed to Project Delay During

Project Pre-Construction Stages, Rep. No. FHWA/TX-15/0-6806-FY 15 WR#3,

Tex. A&M Univ., at 2 (Mar. 2016),

https://static.tti.tamu.edu/tti.tamu.edu/documents/0-6806-FY15-WR3.pdf (excerpts


13 Hemanta Doloi, Understanding Impacts of Time and Cost Related Construction

Risks on Operational Performance of PPP Projects, Int’l Journal of Strategic Prop.

Mgmt., vol. 16, no. 3, Sept. 2012, at 316, 325 (analyzing and weighting relative

risk factors on cost of P3 projects in Australia) (excerpts attached in Addendum).


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transformative transportation projects – whether through a P3 process or otherwise

– when the nation’s need for these long-planned projects is urgent. The lower

court’s opinions ordering an SEIS and vacating the Record of Decision are

incompatible both with the law and with the continued strength of P3s as a viable

alternative in the delivery of transportation improvement projects.

CONCLUSION

The public and private parties engaged in Maryland’s Purple Line have

expended many years, millions of dollars, and enormous energy into a legislated

P3 that serves as a model for financing, building, and operating future transit

projects nationwide. The desperately needed Purple Line is being challenged by a

parochial few in Chevy Chase, the location of just one of the Purple Line’s 21

stations knitting together communities along 16 miles between Bethesda and New

Carrollton. That obstruction and delay have been sustained by lower court rulings

that completely misconstrue NEPA’s fundamental purpose and requirements. For

the reasons set forth herein, ARTBA submits that the district court’s order of

partial summary judgment for Plaintiffs-Appellees should be reversed.


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Dated: August 23, 2017 Respectfully submitted,

/s/ James M. Auslander

James M. Auslander

Gus B. Bauman


Attorneys for Amicus Curiae ARTBA


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CERTIFICATE OF COMPLIANCE OF BRIEF

I certify, pursuant to Fed. R. App. P. Rule 29(a)(4), that the foregoing brief

amicus curiae brief, complies with the type-volume limitation of Fed. R. App. P.

Rule 32(a)(7)(B) because, excluding the parts of the document exempted by Fed.

R. App. P. 32(f) and Circuit Rule 32(e)(1), this document contains 2,776 words, as

computed by Microsoft Word. This document complies with the typeface

requirements of Fed. R. App. P. 32(a)(5) and the type-style requirements of Fed. R.

App. P. 32(a)(6) because this document has been prepared in a proportionally

spaced typeface of Times New Roman, 14 points.


James M. Auslander




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CERTIFICATE OF SERVICE

I hereby certify that, on this 23rd day of August, 2017, the foregoing Amicus

Curiae Brief of American Road & Transportation Builders Association was served

(1) electronically through the Court’s CM/ECF system with the Court and all

registered counsel, and (2) hardcopy via hand delivery (original and eight copies)

with the Court.


James M. Auslander




(Page 26 of Total)

USCA Form 44March 2017 (REVISED)

v.

ENTRY OF APPEARANCE

Party Information(List each represented party individually - Use an additional blank sheet as necessary)

The Clerk shall enter my appearance as

Counsel Information

Notes: This form must be submitted by a member of the Bar of the U.S. Court of Appeals for the D.C. Circuit.Names of non-member attorneys listed above will not be entered on the court's docket. Applications foradmission are available on the court's web site at http://www.cadc.uscourts.gov/.

Case Caption:

Case No:

Appellant(s)/Petitioner(s) Appellee(s)/Respondent(s) Amicus CuriaeIntervenor(s)

Lead Counsel:

Email:

2nd Counsel:

3rd Counsel:

Firm Name:

Firm Address:

Direct Phone: ( ) Fax: ( )

Email:Direct Phone: ( ) Fax: ( )

Email:Direct Phone: ( ) Fax: ( )

Email:Firm Phone: ( ) Fax: ( )

UNITED STATES COURT OF APPEALS

DISTRICT OF COLUMBIA CIRCUIT333 Constitution Avenue, NWWashington, DC 20001-2866

Phone: 202-216-7000 | Facsimile: 202-219-8530

Retained Pro Bono Gov't counselAppointed (CJA/FPD)

for the below:

Fitzgerald, et al.

Federal Transit Administration, et al.

17-5132

American Road & Transportation

Builders Association

James M. Auslander, Bar No. 974898

[email protected]

Gus B. Bauman, Bar No. 234401

Beveridge & Diamond, P.C.

1350 I Street, N.W., Suite 700, Washington, D. C. 20005-3311

202 789-6009 202 789-6190

- -

789-6013 [email protected] 202 789-6190

789-6190202 789-6000 202

USCA Case #17-5132 Document #1689991 Filed: 08/23/2017 Page 1 of 1

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STATUTORY, REGULATORY AND OTHER AUTHORITIES ADDENDUM

TABLE OF CONTENTS

42 U.S.C. § 4332 ......................................................................................................... A1

23 C.F.R. § 771.130 .................................................................................................... A4

40 C.F.R. § 1502.9 ....................................................................................................... A6

40 C.F.R. § 1508.11 ..................................................................................................... A8

40 C.F.R. § 1508.14 ..................................................................................................... A9

Exec. Order No. 13807, Establishing Discipline and

Accountability in the Environmental Review and

Permitting Process for Infrastructure (Aug. 15, 2017) ................................................ A10

Curtis Beaty et al., Assessing the Costs Attributed to

Project Delay During Project Pre-Construction Stages,

Rep. No. FHWA/TX-15/0-6806-FY 15 WR#3,

Tex. A&M Univ., (Mar. 2016) (excerpts) ................................................................... A20

Hemanta Doloi, Understanding Impacts of Time and

Cost Related Construction Risks on Operational Performance of

PPP Projects, Int’l Journal of Strategic Prop. Mgmt.,

vol. 16, no. 3, Sept. 2012. Pp. 316-337 (excerpts) ..................................................... A23

William Reinhardt, The Role of Private Investment in

Meeting U.S. Transportation Infrastructure Needs,

Transp. Dev. Found. (May 2011) (executive summary) ............................................. A25

Public Works Financing,

International Major Projects Database (2017) (excerpts) ............................................ A32


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§ 4332. Cooperation of agencies; reports; availability of..., 42 USCA § 4332

© 2017 Thomson Reuters. No claim to original U.S. Government Works. 1

United States Code AnnotatedTitle 42. The Public Health and Welfare

Chapter 55. National Environmental Policy (Refs & Annos)Subchapter I. Policies and Goals (Refs & Annos)

42 U.S.C.A. § 4332

§ 4332. Cooperation of agencies; reports; availability of information;recommendations; international and national coordination of efforts

Currentness

The Congress authorizes and directs that, to the fullest extent possible: (1) the policies, regulations, and public laws ofthe United States shall be interpreted and administered in accordance with the policies set forth in this chapter, and (2)all agencies of the Federal Government shall--

(A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and socialsciences and the environmental design arts in planning and in decisionmaking which may have an impact on man'senvironment;

(B) identify and develop methods and procedures, in consultation with the Council on Environmental Qualityestablished by subchapter II of this chapter, which will insure that presently unquantified environmental amenities andvalues may be given appropriate consideration in decisionmaking along with economic and technical considerations;

(C) include in every recommendation or report on proposals for legislation and other major Federal actionssignificantly affecting the quality of the human environment, a detailed statement by the responsible official on--

(i) the environmental impact of the proposed action,

(ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement oflong-term productivity, and

(v) any irreversible and irretrievable commitments of resources which would be involved in the proposed actionshould it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the commentsof any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impactinvolved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies,

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which are authorized to develop and enforce environmental standards, shall be made available to the President, theCouncil on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany theproposal through the existing agency review processes;

(D) Any detailed statement required under subparagraph (C) after January 1, 1970, for any major Federal actionfunded under a program of grants to States shall not be deemed to be legally insufficient solely by reason of havingbeen prepared by a State agency or official, if:

(i) the State agency or official has statewide jurisdiction and has the responsibility for such action,

(ii) the responsible Federal official furnishes guidance and participates in such preparation,

(iii) the responsible Federal official independently evaluates such statement prior to its approval and adoption, and

(iv) after January 1, 1976, the responsible Federal official provides early notification to, and solicits the views of,any other State or any Federal land management entity of any action or any alternative thereto which may havesignificant impacts upon such State or affected Federal land management entity and, if there is any disagreementon such impacts, prepares a written assessment of such impacts and views for incorporation into such detailedstatement.

The procedures in this subparagraph shall not relieve the Federal official of his responsibilities for the scope,objectivity, and content of the entire statement or of any other responsibility under this chapter; and further, thissubparagraph does not affect the legal sufficiency of statements prepared by State agencies with less than statewide

jurisdiction. 1

(E) study, develop, and describe appropriate alternatives to recommended courses of action in any proposal whichinvolves unresolved conflicts concerning alternative uses of available resources;

(F) recognize the worldwide and long-range character of environmental problems and, where consistent with theforeign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designedto maximize international cooperation in anticipating and preventing a decline in the quality of mankind's worldenvironment;

(G) make available to States, counties, municipalities, institutions, and individuals, advice and information useful inrestoring, maintaining, and enhancing the quality of the environment;

(H) initiate and utilize ecological information in the planning and development of resource-oriented projects; and

(I) assist the Council on Environmental Quality established by subchapter II of this chapter.

CREDIT(S)(Pub.L. 91-190, Title I, § 102, Jan. 1, 1970, 83 Stat. 853; Pub.L. 94-83, Aug. 9, 1975, 89 Stat. 424.)

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Footnotes1 So in original. The period probably should be a semicolon.

42 U.S.C.A. § 4332, 42 USCA § 4332Current through P.L. 115-45. Title 26 current through 115-52.

End of Document © 2017 Thomson Reuters. No claim to original U.S. Government Works.

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§ 771.130 Supplemental environmental impact statements., 23 C.F.R. § 771.130


Code of Federal RegulationsTitle 23. Highways

Chapter I. Federal Highway Administration, Department of TransportationSubchapter H. Right–of–Way and Environment

Part 771. Environmental Impact and Related Procedures (Refs & Annos)

23 C.F.R. § 771.130

§ 771.130 Supplemental environmental impact statements.

Effective: April 23, 2009Currentness

(a) A draft EIS, final EIS, or supplemental EIS may be supplemented at any time. An EIS shall be supplemented wheneverthe Administration determines that:

(1) Changes to the proposed action would result in significant environmental impacts that were not evaluated inthe EIS; or

(2) New information or circumstances relevant to environmental concerns and bearing on the proposed action orits impacts would result in significant environmental impacts not evaluated in the EIS.

(b) However, a supplemental EIS will not be necessary where:

(1) The changes to the proposed action, new information, or new circumstances result in a lessening of adverseenvironmental impacts evaluated in the EIS without causing other environmental impacts that are significant andwere not evaluated in the EIS; or

(2) The Administration decides to approve an alternative fully evaluated in an approved final EIS but not identifiedas the preferred alternative. In such a case, a revised ROD shall be prepared and circulated in accordance with §771.127(b).

(c) Where the Administration is uncertain of the significance of the new impacts, the applicant will develop appropriateenvironmental studies or, if the Administration deems appropriate, an EA to assess the impacts of the changes, newinformation, or new circumstances. If, based upon the studies, the Administration determines that a supplemental EISis not necessary, the Administration shall so indicate in the project file.

(d) A supplement is to be developed using the same process and format (i.e., draft EIS, final EIS, and ROD) as an originalEIS, except that scoping is not required.

(e) A supplemental draft EIS may be necessary for major new fixed guideway capital projects proposed for FTA fundingif there is a substantial change in the level of detail on project impacts during project planning and development. The

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§ 771.130 Supplemental environmental impact statements., 23 C.F.R. § 771.130


supplement will address site-specific impacts and refined cost estimates that have been developed since the original draftEIS.

(f) In some cases, a supplemental EIS may be required to address issues of limited scope, such as the extent of proposedmitigation or the evaluation of location or design variations for a limited portion of the overall project. Where this is thecase, the preparation of a supplemental EIS shall not necessarily:

(1) Prevent the granting of new approvals;

(2) Require the withdrawal of previous approvals; or

(3) Require the suspension of project activities; for any activity not directly affected by the supplement. If the changesin question are of such magnitude to require a reassessment of the entire action, or more than a limited portionof the overall action, the Administration shall suspend any activities which would have an adverse environmentalimpact or limit the choice of reasonable alternatives, until the supplemental EIS is completed.

Credits[70 FR 24470, May 9, 2005; 74 FR 12530, March 24, 2009]

SOURCE: 52 FR 32660, Aug. 28, 1987; 62 FR 6873, Feb. 14, 1997; 74 FR 12527, March 24, 2009; 78 FR 11602, Feb.19, 2013; 79 FR 2118, Jan. 13, 2014; 79 FR 60115, Oct. 6, 2014; 81 FR 34164, May 27, 2016; 81 FR 34274, May 31,2016, unless otherwise noted.

AUTHORITY: 42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138, 139, 315, 325, 326, and 327; 49 U.S.C. 303; 40 CFRparts 1500–1508; 49 CFR 1.81, 1.85, and 1.91; Pub.L. 109–59, 119 Stat. 1144, Sections 6002 and 6010; Pub.L. 112–141,126 Stat. 405, Sections 1315, 1316, 1317, 1318, and 1319; Pub.L. 114–94, 129 Stat. 1312, Sections 1314 and 1315.

Notes of Decisions (41)

Current through August 17, 2017; 82 FR 39274.


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§ 1502.9 Draft, final, and supplemental statements., 40 C.F.R. § 1502.9


Code of Federal RegulationsTitle 40. Protection of Environment

Chapter V. Council on Environmental QualityPart 1502. Environmental Impact Statement (Refs & Annos)

40 C.F.R. § 1502.9

§ 1502.9 Draft, final, and supplemental statements.

Currentness

Except for proposals for legislation as provided in § 1506.8 environmental impact statements shall be prepared in twostages and may be supplemented.

(a) Draft environmental impact statements shall be prepared in accordance with the scope decided upon in the scopingprocess. The lead agency shall work with the cooperating agencies and shall obtain comments as required in part 1503of this chapter. The draft statement must fulfill and satisfy to the fullest extent possible the requirements established forfinal statements in section 102(2)(C) of the Act. If a draft statement is so inadequate as to preclude meaningful analysis,the agency shall prepare and circulate a revised draft of the appropriate portion. The agency shall make every effort todisclose and discuss at appropriate points in the draft statement all major points of view on the environmental impactsof the alternatives including the proposed action.

(b) Final environmental impact statements shall respond to comments as required in part 1503 of this chapter. Theagency shall discuss at appropriate points in the final statement any responsible opposing view which was not adequatelydiscussed in the draft statement and shall indicate the agency's response to the issues raised.

(c) Agencies:

(1) Shall prepare supplements to either draft or final environmental impact statements if:

(i) The agency makes substantial changes in the proposed action that are relevant to environmental concerns; or

(ii) There are significant new circumstances or information relevant to environmental concerns and bearing on theproposed action or its impacts.

(2) May also prepare supplements when the agency determines that the purposes of the Act will be furthered bydoing so.

(3) Shall adopt procedures for introducing a supplement into its formal administrative record, if such a record exists.

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§ 1502.9 Draft, final, and supplemental statements., 40 C.F.R. § 1502.9


(4) Shall prepare, circulate, and file a supplement to a statement in the same fashion (exclusive of scoping) as a draftand final statement unless alternative procedures are approved by the Council.

SOURCE: 43 FR 55994, Nov. 29, 1978, unless otherwise noted.

AUTHORITY: NEPA, the Environmental Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.),Sec. 309 of the Clean Air Act, as amended (42 U.S.C. 7609), and Executive Order 11514 (Mar. 5, 1970, as amended byExecutive Order 11991, May 24, 1977).




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§ 1508.11 Environmental impact statement., 40 C.F.R. § 1508.11



Chapter V. Council on Environmental QualityPart 1508. Terminology and Index (Refs & Annos)

40 C.F.R. § 1508.11

§ 1508.11 Environmental impact statement.

Currentness

Environmental impact statement means a detailed written statement as required by section 102(2)(C) of the Act.


AUTHORITY: NEPA, the Environmental Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.),sec. 309 of the Clean Air Act, as amended (42 U.S.C. 7609), and Executive Order 11514 (Mar. 5, 1970, as amended byExecutive Order 11991, May 24, 1977).




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§ 1508.14 Human environment., 40 C.F.R. § 1508.14



Chapter V. Council on Environmental QualityPart 1508. Terminology and Index (Refs & Annos)

40 C.F.R. § 1508.14

§ 1508.14 Human environment.

Currentness

Human environment shall be interpreted comprehensively to include the natural and physical environment and therelationship of people with that environment. (See the definition of “effects” (§ 1508.8).) This means that economic orsocial effects are not intended by themselves to require preparation of an environmental impact statement. When anenvironmental impact statement is prepared and economic or social and natural or physical environmental effects areinterrelated, then the environmental impact statement will discuss all of these effects on the human environment.


AUTHORITY: NEPA, the Environmental Quality Improvement Act of 1970, as amended (42 U.S.C. 4371 et seq.),sec. 309 of the Clean Air Act, as amended (42 U.S.C. 7609), and Executive Order 11514 (Mar. 5, 1970, as amended byExecutive Order 11991, May 24, 1977).




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From the Press Office

Speeches & Remarks

Press Briefings

Statements & Releases

Nominations & Appointments

Presidential Actions

Executive Orders

Presidential Memoranda

Proclamations

Legislation

Disclosures

For Immediate Release August 15, 2017

The White House

Office of the Press Secretary

Presidential Executive Order on

Establishing Discipline and

Accountability in the Environmental

Review and Permitting Process for

Infrastructure

EXECUTIVE ORDER

- - - - - - -

the WHITE HOUSE PRESIDENT DONALD J. TRUMP

Page 1 of 10Presidential Executive Order on Establishing Discipline and Accountability in the Environmental Revie...

8/23/2017https://www.whitehouse.gov/the-press-office/2017/08/15/presidential-executive-order-establishing-discipl...

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ESTABLISHING DISCIPLINE AND ACCOUNTABILITY IN THE ENVIRONMENTAL REVIEW AND

PERMITTING PROCESS FOR INFRASTRUCTURE PROJECTS

By the authority vested in me as President by the Constitution and the laws of the United States

of America, and in order to ensure that the Federal environmental review and permitting

process for infrastructure projects is coordinated, predictable, and transparent, it is hereby

ordered as follows:

Section 1. Purpose. America needs increased infrastructure investment to strengthen our

economy, enhance our competitiveness in world trade, create jobs and increase wages for our

workers, and reduce the costs of goods and services for our families. The poor condition of

America's infrastructure has been estimated to cost a typical American household thousands of

dollars each year. Inefficiencies in current infrastructure project decisions, including

management of environmental reviews and permit decisions or authorizations, have delayed

infrastructure investments, increased project costs, and blocked the American people from

enjoying improved infrastructure that would benefit our economy, society, and environment.

More efficient and effective Federal infrastructure decisions can transform our economy, so the

Federal Government, as a whole, must change the way it processes environmental reviews and

authorization decisions.

Sec. 2. Policy. It is the policy of the Federal Government to:

(a) safeguard our communities and maintain a healthy environment;

(b) ensure that Federal authorities make informed decisions concerning the environmental

impacts of infrastructure projects;

(c) develop infrastructure in an environmentally sensitive manner;

(d) provide transparency and accountability to the public regarding environmental review and

authorization decisions;

(e) be good stewards of public funds, including those used to develop infrastructure projects,

and avoid duplicative and wasteful processes;

(f) conduct environmental reviews and authorization processes in a coordinated, consistent,

predictable, and timely manner in order to give public and private investors the confidence

necessary to make funding decisions for new infrastructure projects;

(g) speak with a coordinated voice when conducting environmental reviews and making

authorization decisions; and

(h) make timely decisions with the goal of completing all Federal environmental reviews and

authorization decisions for major infrastructure projects within 2 years.



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Sec. 3. Definitions. The terms of this order shall be applied consistently with those defined

under 42 U.S.C. 4370m and implementing guidance to the maximum extent possible. The

following definitions shall specifically apply:

(a) "Authorization" means any license, permit, approval, finding, determination, or other

administrative decision issued by a Federal department or agency (agency) that is required or

authorized under Federal law in order to site, construct, reconstruct, or commence operations

of an infrastructure project, including any authorization under 42 U.S.C. 4370m(3).

(b) "CAP Goals" means Federal Government Priority Goals established by the Government

Performance and Results Act (GPRA) Modernization Act of 2010, Public Law 111-352, 124 Stat.

3866, and commonly referred to as Cross-Agency Priority (CAP) Goals.

(c) "Federal Permitting Improvement Steering Council" or "FPISC" means the entity

established under 42 U.S.C. 4370m-1.

(d) "Infrastructure project" means a project to develop the public and private physical assets

that are designed to provide or support services to the general public in the following sectors:

surface transportation, including roadways, bridges, railroads, and transit; aviation; ports,

including navigational channels; water resources projects; energy production and generation,

including from fossil, renewable, nuclear, and hydro sources; electricity transmission;

broadband internet; pipelines; stormwater and sewer infrastructure; drinking water

infrastructure; and other sectors as may be determined by the FPISC.

(e) "Major infrastructure project" means an infrastructure project for which multiple

authorizations by Federal agencies will be required to proceed with construction, the lead

Federal agency has determined that it will prepare an environmental impact statement (EIS)

under the National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., and the project

sponsor has identified the reasonable availability of funds sufficient to complete the project.

(f) "Permitting timetable" means an environmental review and authorization schedule, or other

equivalent schedule, for a project or group of projects that identifies milestones -- including

intermediate and final completion dates for action by each agency on any Federal

environmental review or authorization required for a project or group of projects -- that is

prepared by the lead Federal agency in consultation with all cooperating and participating

agencies.

Sec. 4. Agency Performance Accountability. Federal agencies should follow transparent and

coordinated processes for conducting environmental reviews and making authorization

decisions. These processes must include early and open coordination among Federal, State,

tribal, and local agencies and early engagement with the public. Holding Federal agencies

accountable for their progress on implementing the policy set forth in section 2 of this order

should, among other things, produce measurably better environmental outcomes with respect

to infrastructure development.



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(a) Performance Priority Goals.

(i) CAP Goal. A CAP Goal is a Federal tool for accelerating progress in priority areas that

require active collaboration among multiple agencies to overcome organizational

barriers and to achieve better performance than one agency could achieve on its own.

Within 180 days of the date of this order, the Director of the Office of Management and

Budget (OMB), in consultation with the FPISC, shall establish a CAP Goal on Infrastructure

Permitting Modernization so that, where permitted by law:

(A) Federal environmental reviews and authorization processes for infrastructure

projects are consistent, coordinated, and predictable; and

(B) the time for the Federal Government's processing of environmental reviews and

authorization decisions for new major infrastructure projects should be reduced to

not more than an average of approximately 2 years, measured from the date of the

publication of a notice of intent to prepare an environmental impact statement or

other benchmark deemed appropriate by the Director of OMB.

(ii) Agency Goals. All Federal agencies with environmental review, authorization, or

consultation responsibilities for infrastructure projects shall modify their Strategic Plans

and Annual Performance Plans under the GPRA Modernization Act of 2010 to include

agency performance goals related to the completion of environmental reviews and

authorizations for infrastructure projects consistent with the new CAP Goal on

Infrastructure Permitting Modernization. The agencies shall integrate the achievement of

these performance goals into appropriate agency personnel performance plans, such as

those of the agency Chief Environmental Review and Permitting Officers (CERPOs) or

other appropriate officials, consistent with guidance to be provided by OMB, in

consultation with the Office of Personnel Management. Progress on these goals shall be

reviewed and analyzed by agency leadership, pursuant to the GPRA Modernization Act of

2010.

(b) Accountability. Within 180 days of the establishment of the CAP Goal on Infrastructure

Permitting Modernization, as described in subsection (a) of this section, or such longer period

of time as determined by the Director of OMB, OMB, in consultation with the FPISC, shall issue

guidance for establishing a performance accountability system to facilitate achievement of the

CAP Goal.

(i) Tracking of Major Infrastructure Projects. The performance accountability system

shall track each major infrastructure project. The performance accountability system

shall include, at a minimum, assessments of the agency's performance with respect to

each of the following areas, as applicable:

(A) whether major infrastructure projects are processed using the "One Federal

Decision" mechanism, as described in subsection 5(b) of this order;



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(B) whether major infrastructure projects have a permitting timetable;

(C) whether major infrastructure projects follow an effective process that

automatically elevates instances in which permitting timetable milestones are

missed or extended, or are anticipated to be missed or extended, to appropriate

senior agency officials;

(D) whether agencies are meeting the established milestones in the permitting

timetable;

(E) the time it takes to complete the processing of environmental reviews and

authorizations for each major infrastructure project; and

(F) the costs of the environmental reviews and authorizations for each major

infrastructure project.

(ii) Scoring. The accountability system shall include a scoring mechanism that shall

follow, at a minimum, the following procedures:

(A) agencies will submit information to OMB, consistent with existing reporting

mechanisms to the maximum extent possible, on the assessment areas described in

subsection (b)(i) of this section;

(B) at least once per quarter, OMB will produce a scorecard of agency performance

and overall progress toward achieving CAP Goal targets;

(C) where an agency's inability to meet a permitting timetable milestone results in

a significant delay of the project timeline, after consulting with the project sponsor

and relevant agencies, agencies will submit (based on OMB guidance) an estimate

of the delay's costs to the project; and

(D) the Director of OMB will consider each agency's performance during budget

formulation and determine whether appropriate penalties, including those

authorized at 23 U.S.C. 139(h)(7) and 33 U.S.C. 2348(h)(5), must or should be

imposed, to the extent required or permitted by law, for those that significantly fail

to meet a permitting timetable milestone or in other situations deemed appropriate

by the Director of OMB after considering the causes of any poor performance.

(iii) Best Practices. Agencies shall implement the techniques and strategies the FPISC

annually identifies as best practices pursuant to 42 U.S.C. 4370m-1(c)(2)(B), as

appropriate. The performance accountability system shall track and score agencies on

the incorporation and implementation of appropriate best practices for all infrastructure

projects, including the implementation of such best practices at an agency's field level.



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Sec. 5. Process Enhancements. In furtherance of the policy described in section 2 of this order,

Federal agencies shall follow a more unified environmental review and authorization process.

(a) Processing of Major Infrastructure Projects. In processing environmental reviews and

authorizations for major infrastructure projects, Federal agencies shall:

(i) use "One Federal Decision" described in subsection (b) of this section;

(ii) develop and follow a permitting timetable, which shall be reviewed and updated at

least quarterly by the lead Federal agency in consultation with Federal cooperating and

participating agencies; and

(iii) follow an effective process that automatically elevates instances where a permitting

timetable milestone is missed or extended, or is anticipated to be missed or extended, to

appropriate senior agency officials of the lead Federal agency and the cooperating and

participating Federal agency or agencies to which the milestone applies.

(b) One Federal Decision.

(i) Each major infrastructure project shall have a lead Federal agency, which shall be

responsible for navigating the project through the Federal environmental review and

authorization process, including the identification of a primary Federal point of contact at

each Federal agency. All Federal cooperating and participating agencies shall identify

points of contact for each project, cooperate with the lead Federal agency point of

contact, and respond to all reasonable requests for information from the lead Federal

agency in a timely manner.

(ii) With respect to the applicability of NEPA to a major infrastructure project, the Federal

lead, cooperating, and participating agencies for each major infrastructure project shall

all record any individual agency decision in one Record of Decision (ROD), which shall be

coordinated by the lead Federal agency unless the project sponsor requests that agencies

issue separate NEPA documents, the NEPA obligations of a cooperating or participating

agency have already been satisfied, or the lead Federal agency determines that a single

ROD would not best promote completion of the project's environmental review and

authorization process. The Federal lead, cooperating, and participating agencies shall all

agree to a permitting timetable that includes the completion dates for the ROD and the

federally required authorizations for the project.

(iii) All Federal authorization decisions for the construction of a major infrastructure

project shall be completed within 90 days of the issuance of a ROD by the lead Federal

agency, provided that the final EIS includes an adequate level of detail to inform agency

decisions pursuant to their specific statutory authority and requirements. The lead

Federal agency may extend the 90-day deadline if the lead Federal agency determines

that Federal law prohibits the agency from issuing its approval or permit within the 90-



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day period, the project sponsor requests that the permit or approval follow a different

timeline, or the lead Federal agency determines that an extension would better promote

completion of the project's environmental review and authorization process.

(iv) The Council on Environmental Quality (CEQ) and OMB shall develop the framework

for implementing One Federal Decision, in consultation with the FPISC.

(A) The framework should be consistent with the model processes established

under 42 U.S.C. 4370m-2, 23 U.S.C. 139, 33 U.S.C. 2348, the 2015 "Red

Book" (officially entitled "Synchronizing Environmental Reviews for Transportation

and Other Infrastructure Projects"), and CEQ guidance on efficient and timely

environmental reviews under NEPA.

(B) The framework shall also include guidance on the development of permitting

timetables by the lead Federal agencies, in collaboration with Federal cooperating

and participating agencies. Permitting timetables shall identify estimated

intermediate and final completion dates for all environmental reviews and

authorizations that are reasonably anticipated as being needed for a project,

including the process for granting extensions of any established dates. The

guidance shall specify that lead Federal agencies need not include the estimated

intermediate and final completion dates of any such reviews or authorizations until

the design of a project has sufficiently advanced so that they can be developed. In

such cases, the guidance shall instruct lead Federal agencies to estimate when the

project's design will be advanced enough to determine such dates. The timelines

shall account for any federally required decisions or permits that are assumed by, or

delegated to, State, tribal, or local agencies and the extent to which any approval or

permit to be issued by a Federal agency is dependent upon the issuance of such a

decision or permit.

(C) CEQ and OMB shall also develop guidance for applying One Federal Decision

whenever the lead agency is a State, tribal, or local agency exercising an

assignment or delegation of an agency's NEPA responsibilities.

(c) Dashboard. All projects subject to 23 U.S.C. 139 and "covered projects" under 42 U.S.C.

4370m shall be tracked on the Dashboard established under 42 U.S.C. 4370m-2(b). Other

projects or classes of projects subject to special environmental review and authorization

streamlining processes similar to those referenced in this subsection may also be tracked on

the Dashboard at the discretion of the FPISC Executive Director. The dates for milestones of all

projects tracked on the Dashboard shall be updated monthly, or on another appropriate

timeline as may be determined by the FPISC Executive Director.

(d) Executive Order 13766. For purposes of implementing Executive Order 13766 of January 24,

2017 (Expediting Environmental Reviews and Approvals for High Priority Infrastructure



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Projects), all infrastructure projects that meet the criteria for, and are subject to, 23 U.S.C. 139,

33 U.S.C. 2348, or 42 U.S.C. 4370m–4370m-12 shall qualify as high priority projects under

Executive Order 13766. Other projects or classes of projects subject to special environmental

review and authorization streamlining processes, similar to those referenced in this subsection

as may be determined by the FPISC Executive Director in consultation with OMB and CEQ, shall

also qualify as high priority infrastructure projects under Executive Order 13766. The CEQ

Chairman's responsibilities under sections 2 and 3 of Executive Order 13766 shall be satisfied by

referring the project to the FPISC Executive Director, the Secretary of Transportation, or the

Assistant Secretary of the Army for Civil Works, as appropriate.

(e) Council on Environmental Quality.

(i) Directives. Within 30 days of the date of this order, the CEQ shall develop an initial list

of actions it will take to enhance and modernize the Federal environmental review and

authorization process. Such actions should include issuing such regulations, guidance,

and directives as CEQ may deem necessary to:

(A) ensure optimal interagency coordination of environmental review and

authorization decisions, including by providing for an expanded role and authorities

for lead agencies, more clearly defined responsibilities for cooperating and

participating agencies, and Government-wide applicability of NEPA decisions and

analyses;

(B) ensure that environmental reviews and authorization decisions involving

multiple agencies are conducted in a manner that is concurrent, synchronized,

timely, and efficient;

(C) provide for agency use, to the maximum extent permitted by law, of

environmental studies, analysis, and decisions conducted in support of earlier

Federal, State, tribal, or local environmental reviews or authorization decisions; and

(D) ensure that agencies apply NEPA in a manner that reduces unnecessary burdens

and delays as much as possible, including by using CEQ's authority to interpret

NEPA to simplify and accelerate the NEPA review process.

(ii) Dispute Resolution. Except where dispute resolution processes are otherwise

provided for in law, including under 42 U.S.C. 4370m-2, or by Executive Order or other

Presidential directive, upon request of a lead Federal agency, cooperating agency, or

participating agency, CEQ may mediate interagency disputes arising between Federal

agencies concerning Federal environmental review or authorization decisions for any

infrastructure project pertaining to any environmental law, regulation, order or policy,

and shall facilitate resolution of any conflicting positions of the relevant agencies.



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(iii) Agency Procedures. CEQ shall form and lead an interagency working group,

consisting of the Director of OMB, agency CERPOs, and such other representatives of

agencies as CEQ deems appropriate. The working group shall review the NEPA

implementing regulations and other environmental review and authorization processing

policies of agencies that are members of the FPISC to identify impediments to efficient

and effective environmental reviews and authorizations for infrastructure projects. The

working group shall also identify those agencies that require an action plan to address

identified impediments. Based on this review, agencies shall develop action plans that

set forth the actions they will take and timelines for completing those actions, and they

shall submit those action plans to CEQ and OMB for comment. Each agency's action plan

shall, at a minimum, establish procedures for a regular review and update of categorical

exclusions, where appropriate.

(f) Federal Permitting Improvement Steering Council.

(i) Organizational Support. Unless otherwise determined by the Director of OMB, the

General Services Administration (GSA) shall provide necessary administrative and

organizational support to the FPISC, including personnel, procurement, and budget

support. The GSA Administrator, or the head of another agency designated by the

Director of OMB, may delegate any authority to the FPISC Executive Director necessary for

the operation and administration of the FPISC and the Office of the Executive Director,

and the Executive Director may redelegate these authorities, as appropriate.

(ii) Additional Duties. In addition to the duties and responsibilities charged to the FPISC

Executive Director under 42 U.S.C. 4370m–4370m-12 and this order, the FPISC Executive

Director may, upon request of a FPISC member agency or a project sponsor, work with the

lead agency or any cooperating and participating agencies to facilitate the environmental

review and authorization process for any infrastructure project regardless of whether the

project is a "covered project" under 42 U.S.C. 4370m, including by resolving disputes and

promoting early coordination. The FPISC Executive Director, the Director of OMB, or the

Chairman of CEQ may establish any appropriate policies or procedures concerning the

FPISC Executive Director's facilitation of the environmental review and authorization

process under this subsection. Agencies must cooperate with the FPISC Executive

Director with respect to the implementation of these additional duties.

(g) Energy Corridors. The Departments of the Interior and Agriculture, as appropriate, shall be

the lead agencies for facilitating the identification and designation of energy right-of-way

corridors on Federal lands for Government-wide expedited environmental review for the

development of energy infrastructure projects.

(h) The Department of the Interior shall provide to OMB a strategy and recommendations for a

multi-agency reorganization effort that would further the aims of this order. OMB, in

consultation with the Department of the Interior, shall coordinate with the heads of other



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agencies affected to incorporate the strategy, as appropriate, into the comprehensive

reorganization plan developed under Executive Order 13781 of March 13, 2017 (Comprehensive

Plan for Reorganizing the Executive Branch).

Sec. 6. Executive Order 13690 of January 30, 2015 (Establishing a Federal Flood Risk

Management Standard and a Process for Further Soliciting and Considering Stakeholder Input),

is revoked.

Sec. 7. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise

affect:

(i) the authority granted by law to an executive department, agency, or the head thereof;

or

(ii) the functions of the Director of the Office of Management and Budget relating to

budgetary, administrative, or legislative proposals.

(b) This order shall be implemented consistent with applicable law and subject to the

availability of appropriations.

(c) This order is not intended to, and does not, create any right or benefit, substantive or

procedural, enforceable at law or in equity by any party against the United States, its

departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

THE WHITE HOUSE,

August 15, 2017.

HOME BRIEFING ROOM ISSUES THE ADMINISTRATION PARTICIPATE 1600 PENN

USA.gov Privacy Policy Copyright Policy

Page 10 of 10Presidential Executive Order on Establishing Discipline and Accountability in the Environmental Revi...


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ASSESSING THE COSTS ATTRIBUTED TO PROJECT DELAY DURING PROJECT PRE-CONSTRUCTION STAGES

by

Curtis Beaty, P.E. Associate Research Engineer

Texas A&M Transportation Institute

David Ellis, Ph.D. Research Scientist

Texas A&M Transportation Institute

Brianne Glover Associate Transportation Researcher Texas A&M Transportation Institute

and

Bill Stockton, Ph.D., P.E.

Executive Associate Agency Director Texas A&M Transportation Institute

Report 0-6806-FY15 WR#3 Project 0-6806-TTI

Project Title: TxDOT Administration Research

Performed in cooperation with the Texas Department of Transportation

and the Federal Highway Administration

Published: March 2016

TEXAS A&M TRANSPORTATION INSTITUTE College Station, Texas 77843-3135

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1

EXECUTIVE SUMMARY

All departments of transportation face delays on highway projects. They often have anecdotal accounts of the significant financial impact that the delay of a highway project had on project costs, local businesses, commuters, and other users of the highway. But in many cases hard data on the financial impact are lacking. This project for the Texas Department of Transportation (TxDOT) developed a simple but sound methodology for estimating the cost of delaying most types of highway projects. In 2011, the Texas A&M Transportation Institute (TTI) performed a study examining the cost associated with delays during the construction phase (i.e., post letting) of highway projects. This project considered the cost of delays during the pre-construction phases of project development: planning and scoping, preliminary engineering, final design, and letting.

The project draws on two main resources to produce reliable estimates of impacts:

• Existing data from projects originally scheduled to let between January 2012 and March 2014 and reported in TxDOT’s Design Construction Information System, SiteManager™, and Primavera™.

• Methodologies developed for other applications that can be applied to estimating the cost of project delay.

DELAY DURING PROJECT PHASES

Delay can occur in any phase in the project:

• Planning/scoping phase: Delay can be significant when litigation is initiated. • Development phase: Permitting (environmental, fish and wildlife, railroad, etc.), right-of-

way acquisition, and utility agreements can be significant causes of delay. • Contracting phase: Generally, this phase has less incidence of delay but can still have

issues. • Construction phase: This phase has numerous opportunities for delay and is often the

delay most visible to the public.

Project delay almost always has some costs associated with it, but not all project delay is a waste of time and public money. In some instances, the reason for the delay is to make an improvement in the design or construction of the project that will ultimately deliver better value to the public. At the same time, delays during the pre-construction phases of project development can be introduced due to poor project management activities (e.g., failing to publicly advertise a project’s bid request the required numbers of days before the bidding deadline) that can have minor direct costs but with more significant indirect costs to commuters and businesses.

ESTIMATION MODEL

This project developed a simplified model that incorporates 17 user-controlled variables and produces estimates of the effect of project delay on personal and commercial travel and the cost to the general economy. While the methodology is simple, there is no rule of thumb because

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2

project delay costs depend on several variables, primarily location, traffic, construction costs, travel speeds, fuel prices, construction prices, and the change in prices as influenced by the general economy.

Three projects of varying size were used as examples:

• The small project illustrates delay to a $10.6 million, reconstruction of four-lane roadway project in a rural setting. The project’s 6-month delay produced an additional cost of $570,000, or a cost of $87,000 for every month of delay.

• The medium project illustrates delay to a $28.5 million, widening of a semi-rural highway project. The project’s 2-month delay produced an additional cost of $870,000, or a cost of over $420,000 for every month of delay.

• The large project illustrates delay to an $85.2 million freeway reconstruction in a large metro area. The project’s 3-month delay produced an additional cost of $4 million, or a cost of $1.3 million for every month of delay.

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RoutledgeTaylor &FrancisCroup

Edinburgh NapierlUNIVERSITY

INTERNATIONAL JOURNAL OF STRATEGIC PROPERTY MANAGEMENTISSN 1648-715X print / ISSN 1648-9179 online

2012 Volume 16(3): 316-337doi:10.3846/1648715X.2012.688774

UNDERSTANDING IMPACTS OF TIME AND COST RELATEDCONSTRUCTION RISKS ON OPERATIONAL PERFORMANCEOF PPP PROJECTS

Hemanta DOLOIFaculty of Architecture, Building and Planning, The University of Melbourne, Victoria 3010,AustraliaE-mail: [email protected]

Received 17 November 2011; accepted 21 February 2012

ABSTRACT. The risk attributes in construction project is one of the widely published topics,yet there is no or little investigation whether or not risks associated with construction phasepropagate over operational phase. As operation phase of the PPP projects is significantlylong compared to the construction phase, understanding the impact of time and cost relatedconstruction risks over operation phase is quite important. In this research, risk attributesassociated with the PPP procurement method have been identified across three dimensions,time, cost and operational performance. A questionnaire survey was used for collecting datain seven major PPP projects in Australia. Based on standard statistical methods and factoranalysis, a number of key risk factors infiuencing time, cost and operational performancehave been extracted. The research revealed that site conditions and design complexity is oneof the most critical risk attribute infiuencing time performance in projects. Similarly, marketdynamics is the most critical attribute infiuencing both construction cost and operational per-formance in PPP projects. Based on regression modeling, partner's dispute was found to be agood determinant of time and cost performance. Technical obsolescence has significant impactson the operational performance of PPP projects. It was revealed that the design complexity,financial structure and government policy are the three main common factors affecting risksacross time, cost and operational performance in PPP projects. It is anticipated that the find-ings wül impact the construction firms for improving the front-end risk management capabil-ity for efficient positioning within the competitive business environment.

KEYWORDS: Construction risks; Operational risks; Puhlic-private-partnerships; Factoranalysis; Multiple regression

1. INTRODUCTION

Risk management is a topic area that in-terests most industry sectors and particularlyin the construction industry. However, tradi-tional risk management framework applied inconstruction industry predominately focuseson management of risks over constructionphase. In fact, the current risk management

processes are significantly inadequate in man-aging risks associated with issues such asselection of procurement routes, contractualarrangements, management of stakeholders,organisational complexity and operationalperformance and de-investment decisions (PM-BOK, 2008). A contemporary risk managementframework must be able to deal with everyincreasing complexity with bigger stakes and

Copyright © 2012 Vilnius Gedirainas Technical University (VGTU) Press Technikahttp://www.tandfonllne.comyTSPM

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Understanding Impacts of Time and Cost Related Construction Risks on Operational... 325

the PPP project. Lack of cooperation from thegovernment with factor loading of 0.853 is oneof the most significant attributes in this fac-tor. Misinterpretation of contract (with factorloading of 0.850) in construction phase exertscost performance in overall projects. Failure/delay in obtaining permit/approval due to bu-reaucracy in government organizations (withfactor loading of 0.716) is found to be crucial

in PPP project. Partner's dispute was found tohave significant impact (with a factor loadingof 0.577). Failure or delay in material deliveryscored 0.507 for the project. Due to involve-ment of a multitude of stakeholders in the PPPprocess, a measure of real time communication(factor loading of 0.476) between stakeholdersshould impact positively on overall cost out-comes in projects.

Table 2. Rotated factor loadings of eight key risk factors influencing project cost performance

Variahles Factor loading Varianceexplained

Factor 1: Planning and design5. Change in scope 0.8664. Defects in design 0.8351. Changes in output specification 0.5692. Innovative design 0.54311. Delay in operation 0.538

Factor 2: Communications23. Lack of cooperation of the government 0.85330. Misinterpretation of contract 0.85032. Fedlure/delay in ohtaining permit/approval 0.71629. Partner's disputes 0.5779. Failure/delay in material delivery 0.50726. Lack of communication hetween stakeholders 0.476

Factor 3; Site conditions38. Commercial rights due to development in vicinity 0.87141. Site contamination 0.85837. Adverse changes in tax 0.61442. Force Majeure 0.520

Factor 4: Market dynamics36. Adverse changes in interest rates 0.88335. Financial failure of private consortium 0.85621. Unanticipated inflation 0.71633. Unavailahility of financing 0.674

Factor 5: Construction risk6. ConstructahiHty 0.87028. Destructive industrial action 0.8408. Unforeseen site condition 0.7747. Failure/delay in site acquisition 0.753

Factor 6: PoUcy, legislation & regulation17. Unanticipated economic downturn 0.11918. Increased competition 0.11224. Misunderstanding the role of stakeholders 0.74331. Adverse changes in law, pohcy or regulations 0.722

22.65%

18.05%

14.05%

11.60%

8.85%

7.65%

Total variance explained = 82.85%

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The Ro I e of P rivate I nvestm e nt i nMeeting U.S. TransportationInfrastructure Needs

• What We've Learned from Two Decades' F~cperience withTransportation Public-Private Partnerships (P3s) in theUnited States

• Recommendations for Increasing Private Investmentin Transportation Projects Going Forward

By William Reinhardt, 23-year P3 observer, publisher and editor of"Public Works Financing" newsletter

American Ao3d & Tra~spoitation Bai/dersAssociation

TransparfationDevelopmentFoundation

May 2011

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Executive Summary

Over the past 22 years, the Congress and the federal government have proactively supported development

and implementation of public-private partnerships to finance and build transportation projects in many

significant ways. These include:

• A statutory framework that allows the use of federal funds on P3 projects;

• Two pilot programs. The first, from the 1998 federal surface transportation authorization law, the

"Transportation Equity Act for the 21St Century" (TEA-21), permits toll finance to reconstruct three

existing Interstates. The second, from the 2005 law, the "Safe, Accountable, Flexible, Efficient

Transportation Equity Act: A Legacy for Users" (SAFETEA-LU), permits toll finance to pay for three

new Interstates;

• Encouraging the establishment of state infrastructure banks (SIBS);

• Providing substantive assistance from the Federal Highway Administration's (FHWA) Office of

I nnovative Program Delivery;

• FHWA's "Special Experimental Project"(SEP-15) program to promote new P3 approaches to

project delivery;

• Private activity bonds (PABs); and the

• The "Transportation Infrastructure Finance &Innovation Act" (TIFIA) federal credit assistance

program.

Since 1989:

Using a broad definition that includes design-build as P3 projects, the data show:

• 24 states and the District of Columbia have used a P3 process to help finance and build at least 96

transportation protects worth a total $54.3 billion. The implementing states include: Alaska,

Alabama, Arizona, California, Colorado, Florida, Illinois, Indiana, Maryland, Massachusetts,

Minnesota, Missouri, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode

Island, South Carolina, Texas, Utah, Virginia and Washington.

o Sixty-five percent of these projects occurred in just eight states—Florida (10), California (11),

Texas (18), Colorado (9), Virginia (7), Minnesota (2), North Carolina (2), and South Carolina

~3)•

o One-third of these project starts occurred in one of four years-2009 (10), 2002 (8), 1998 (8)

and 2000 (7).

• 26 states have not initiated a P3 transportation protect. These include: Arkansas, Connecticut,

Delaware, Georgia, Hawaii, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi,

Tlie Role of Private Investment in Meeting U.S. Transportation Infrastructure Needs Page 7

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Montana, Nebraska, New Hampshire, North Dakota, Ohio, Oklahoma, Pennsylvania, South Dakota,Tennessee, Vermont, West Virginia, Wisconsin and Wyoming.

• Over the past 10 years, 2001 through 2010, on average, five states started a transportation P3protect each year.

• Of the $54.3 billion in transportation P3 contracts let over the past 22 years, almost 75 percent ofthe contract value is accounted for by eight states—Texas ($9.57 billion, 17.6 percent), California($6.02 billion, 11.1 percent), Florida ($5.63 billion, 10.4 percent), Colorado ($4.85 billion, 9 percent),

I ndiana ($3.85 billion, 7.1 percent), Virginia ($3.88 billion, 7.1 percent), Utah ($3.66 billion, 6.7percent), and New Jersey ($3.35 billion, 6.2 percent).

• 79 of the transportation P3 projects, worth $31.5 billion, have been either Design-Build (DB),Design-Build-Finance (DBF),'or Design-Build-Operate-Maintain (DBOM) contracts.

• 11 of the transportation P3 proj.ects, worth $12.4 billion, have included a P3 financing component,been Design-Build-Finance-Operate-Maintain (DBFOM) contracts, or straight concessions involvingtraffic forecasting risk.

• Over the period, there have been four transportation asset privatizations with total up-frontpayments to government valued at $6.9 billion. These include the:

o Indiana Toll Road (Indiana Finance Authority) in 2006—a 75-year (ease for $3.85 billion;

o Chicago Skyway (City of Chicago) in 2005—a 99-year lease for $1.83 billion;

o Pocahontas Parkway (Virginia Department of Transportation) in 2006—a 99-year lease for$611 million; and the

o Northwest Parkway (Colorado, Northwest Parkway Authority) in 2007—a 99-year lease for$603 million.

• The P3 market share of total U.S. capital investment in hi~hways by all levels of government since2008 is about 2 percent.

• A number of large P3 contracts have been signed since 2008 and, together, these account for about11 percent of total national capital investment in new highway capacity in 2011. These new projectsare mostly express lanes that can be tolled, built next to existing freeways in heavily congestedurban areas.

Going Forward...

Many states have adopted alternative delivery contracting approaches that capture some of the benefits ofPas but do not entail private finance. As the data show, there is room for substantial growth in thedevelopment of new capacity through privately financed concessions.

However, given (a) the nation's enormous, unmet transportation infrastructure needs, (b) almost two-decades of proactive federal policy and legislative advocacy for implementation of P3 transportationprojects, (c) the financial challenges facing all levels of government, and (d) the claimed "$100 billion to $400billion in private funds available for P3 projects," several questions must be asked at this juncture:

The Role of Private Investment in Meeting U.S. Transportation Infrastructure Needs Page 8

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• Why have there been so relatively few privately financed P3 transportation projects in the United

States over the ►ast 22 years? Whv haven't there been many more?

• Why have only five states—California, Florida, Georgia, Texas and Virginia—developed the capabilityto execute complex P3 transactions involving private finance?

• What is a realistic forecast for P3 projects in the future?

Obviously, there are some impediments to widespread use of P3 approaches for meeting transportationinfrastructure needs.

Experience is showing, for example, that Pas are likely not feasible replacements for the 80-90 percent oftotal public capital investment each year that is directed to transportation infrastructure repair,rehabilitation and reconstruction.

Potential investors are also not looking to participate in smaller, less expensive new construction projects or

routine maintenance where governments and their traditional contracting partners deliver a high level ofservice.

It is also true that most of the profitable toll road corridors in America have already been developed and arebeing operated by independent toll authorities or states.

Tolling the Interstate system in order to pay for its reconstruction has been proposed as a major newbusiness opportunity for P3 developers. But the political barriers to tolling in.~eneral and to tolling existingfreeways in specific are formidable, especially among states.

It has become clear that the following reasons go a long way toward explaining why the P3 share of theoverall U.S. transportation infrastructure construction market has been fairly limited over the past twodecades and will likely remain so in the decades ahead:

• P3s do not provide "new" or "free" money for building transportation projects.

Public sector investment in transportation projects and infrastructure is made in the public interest as acore~function of government. The investment is funded through government-levied taxes and user fees,or through public borrowing—debt which must be repaid with interest with public funds generated byfuture tax or fee collections.

The private sector must meet the same public interest test and also find projects that provide anadequate return on investment—a profit.

Pas do not provide project funding, they provide project financing—borrowed money that must bereimbursed, at a profit, to the lender. Therefore, P3 projects must include a reliable revenue stream,which, as has been demonstrated over the past two decades' experience, is generally accomplishedthrough tolling.

While technology has made toll collection far more efficient and opened the door to "variable pricing" ofinfrastructure use based on demand, the fact remains that the decision whether or not to allow thecollection of tolls from the public is a decision that must be made by elected officials. And the decisionto initiate tolls—or increase existing toll rates—is no less a political decision than whether or not to raise


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the motor fuels excise to pay for transportation infrastructure. As is the case with the gas tax, many riskaverse politicians are not interested in having to make a decision to levy tolls.

Ultimately, public-purpose infrastructure must be paid for by some combination of users and taxpayers.I nnovative financing models can access new sources of borrowing and allow leveraging of public funds.But they don't create new funding sources per se.

Pas are a financing solution chasing a funding problem.

• U.S. tax policy is a hurdle for Pas.

The U.S. public finance industry very efficiently employs long-dated, tax-exempt debt to meet a largepart of the capital-raising needs of governments and non-profit authorities. When compared tothe interest rates on the taxable debt used in Pas, there'is acost-of-capital advantage'of 1% to 2%conferred on state and local borrowers by federal tax rules. Some of that advantage can be offset whenF3s access special federal financing instruments that help to level the playing field.

To compete with the low cost of public borrowing, P3 projects as a class must be tightly managed tocontrol expenses, meet schedules and deliver life-cycle cost savings. Having to meet those demands inevery project ultimately may be one of the greatest benefits of adding Pas to the Americantransportation infrastructure toolbox.

• P3s are often the preferred option for delivery of large, complex projects that add newcapacity in heavily-travelled corridors or reconstruct deteriorating existing capacity on theInterstate Highway System.

With the need to generate a return on investment a prerequisite for bringing private investors into atransportation project, Pas are best suited for lame protects with a high probability for strong revenuegeneration over many years.

Unfortunately, despite the staggering cost of traffic congestion to the U.S. economy and quality of life,the federal government does not have a national strategic business plan for building additionaltransportation infrastructure capacity in all modes—or for even performing necessary reconstruction ofexisting capacity on the Interstate Highway System. Nor do many of the states.

A new national initiative to build multi-modal "Critical Commerce Corridors" with dedicated truck lanesand connections to major airports, waterways, ports and rail hubs, for example, would lend itself quitewell to the P3 model.

To the contrary, however, much federal and state transportation, environmental and fiscal policydiscourages investments. in new transportation capacity. Thus the "market" for P3-like projects in theU.S. is, unfortunately. constrained.

Perhaps two to four new P3 projects per year in the U.S. would be a reasonable assumption for thefuture.

• While relatively few non-highway transportation Pas have been undertaken in the U.S. thusfar, the P3 model has been used successfully to finance Denver's Eagle P3 rail project- andcould play a larger role in the financing of other transit and rail infrastructure projects.


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Pas can never be the "centerpiece" or even a major element of federal transportation

programs. Proactive state actions are needed.

While the federal government can encourage private investment in transportation infrastructure

through favorable tax treatments, supplementary loans and the easing of restrictions on tolling existing

federally-funded assets, P3 transportation projects must be contracted with state and local governments

or authorities.

Pas are a state or local, not federal, decision. That is why when Congress writes the next federal surface

transportation authorization, it would be a mistake to depend on private sector investment for meeting

most of the nation's surface transportation capital needs.

My recommendations for increasing private investment in needed U.S.

transportation infrastructure:

Authorize the USDOT to Develop a "National Strategic Transportation Business Plan"—

Authdrize in the next federal surface transportation law the development of a multi-modal "National

Strategic Transportation Development Business Plan" aimed at achieving national goals and leading to

necessary expansion of existing system capacity in all modes and the expensive reconstruction necessary

to maintain existing capacity on the aging, original Interstate Highway System.

Enhance TIFIA and PAB tools—There are important transportation projects being planned now that

will be able to arrange financing and start construction with support from existing federal programs. The

amount of funding for the U.S. Department of Transportation's (USDOT) "Transportation Infrastructure

Finance &Innovation Act". (TIFIA) should be substantially increased and the volume capon tax-exempt

"Private Activity Bonds" (PAB) should be removed. Decisions about which projects receive support

should be made on based solely on project merits and economic benefits. Both tools serve to reduce the

cost of capital in P3 financings and, thus, lower the tolls users must pay or the amount of availability-

based payments from legislatures.

Attract Pension Funds—Congress should embrace a form of private "Build America Bonds" (BAB),

indexed bonds, or other debt instruments that would attract critically needed investment from

insurance companies and public-employee and union pension funds.

4. Educate Governors, State Legislators and the Public—P3s should be included in every state's

transportation financing toolbox for use on appropriate projects and to provide much-needed

supplemental dollars. The first step in this process is educating legislators and encouraging them to

enact comprehensive P3 authorization laws. (This is currently a joint project of ARTBA and the National

Conference of State Legislatures). Once in place, state DOTS should be encouraged to thoroughly

consider the application of P3 techniques to all appropriate projects. Collectively, the transportation

community must also do a much betterjob of educating the public on the true costs of providing and

maintaining a safe and efficient transportation network.

5. Further Ease Federal Restrictions on State Tolling of the Interstate Highway System—It has

been clearly demonstrated over the past two decades that the P3 approach can quickly deliver the high-

cost, new capacity highway projects that are needed in many parts of the nation to meet current and

The Role of Private [nvestmeiit in Meeting U.S. Transportation Infrastructure Needs Page 11

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future mobility demands. Similarly, Pas are also well-suited to the expensive task facing all states ofreconstructing and improving their existing—and aging—Interstate highway capacity.

It is also clear, however, that Pas require a new and consistent revenue stream to retire project debt andprovide a fair return on investment to the private sector partners who help front the project's cost andassume the costs of operation and maintenance. Tolis imposed on a facility's users are a provenmechanism for providing that revenue stream.

Current federal law has four tolling and pricing "pilot programs" that allow a limited number of statesthe opportunity to impose tolls on their Interstate mileage for specific purposes: the "Express LaneDemonstration Program," the "Value Pricing Pilot Program," the "Interstate System Reconstruction &Rehabilitation Pilot Program," and the "Interstate System Construction Toll Pilot Program."

These programs should be made permanent and available to all states with the only restriction beingthat resulting revenue raised from users be exclusively dedicated to financing the reconstruction andimprovement of the state's Interstate mileage and/or the addition of new Interstate capacity.

Conclusions

The United States has a comprehensive and relatively mature transportation infrastructure network in place.As a result, aUaut 85 percent o~ the tota~ public capital investrnefit in the nation's transportation system inrecent years is directed toward maintaining and repairing it, not constructing new facilities or addingcapacity to existing ones.

Two decades of experience have shown that private investment is attracted to large, complex and expensivetransportation projects that add new capacity to the U.S. system and can be supported by a new revenuestream, usually tolling. Thus, the overall market share for P3 projects in the overall U.S. transportationconstruction market has been—and likely will remain—fairly small, less than five percent per year.

The value of this contribution, however, should not be underestimated. For, absent sisnificant increases inpublic funding, Pas will likely be the primary model for building new highway capacity in heavily congestedurban areas in the decades ahead.

Given the economic and social toll caused by traffic congestion in the U.S. and the enormous unmet demandfor new hi~hwav capacity to facilitate freight movement in an increasingly competitive international market,P3~rolects should be a~gressively encouraged and supported.


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Country equals United States and Financial Close equals 2014 and Project Type equals Motorway = 5 projects | 5 closed -- $1,462m project cost

= back to top

[x] = construction underway or completed

[o] = proposed

Name

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detail)

Project

Description

Public

Sponsors

+Advisors

Developer

+Advisors Builders +Operators

Financiers

+Advisors

Project

Status

Financial Close:

Cost (current US$):

Contract Type:

[x] Motorway:

Indiana, I-69,

Section 5 Upgrade

United States

DBFOM 35yrs

upgrade 21

miles of existing SR 37 (section 5

of I-69 upgrade

project, between Bloomingt. . .

Indiana

Finance

Authority (IFA) /

Indiana

Department of Tran... .

I-69

Development

Partners: Roadis (PSP

Investments)

(100%) -... .

$325 db cost.

Construction:

Corsan-Corviam Construccion, S.A... .

Equity:

$40.4m

PABs: $243.8m

(Citigroup ...

.

Under

construction.

8/16 Isolux files for

bankruptcy

in Madrid and New

York. 5/16

PSP Inve... .

Close: 07/14

Cost (Construction): US$370m

Contract Type: DBFOM_________________ .

[x] Motorway: Massachusetts,

I-90 All

Electronic Tolling System

United States

Install all-electronic tolling

system for

Massachusetts Turnpike and

Sumner/Callahan

and Ted William.

. .

Massachusetts DOT (Mass

DOT)

.

N/A . Raytheon/SPS New England/Liddell

Brothers CDM Smith

(design)... .

N/A . 8/14 award and NTP.

8/13 LOI....

.

Close: 08/14

Cost (Construction):

US$130m

Contract Type: DB

_________________ .

[x] Motorway: New York,

Kosciuszko

Bridge, Brooklyn-

Queens, New

York City

United States

Two bridges (each one way)

to replace 76-

year-old 6-lane bridge that

connects

Brooklyn and Queens. C. . .

New York State DOT

.

N/A . Skanska/Kiewit/ECCO II HNTB (design)... .

N/A . 6/14 NTP.... .

Close: 06/14


US$555m

Contract Type: DB

_________________ .

[x] Motorway:

North Carolina,

US 220/NC 68 Connector,

I-73 and

Taxiway Bridge

United States

New 9.4-mile,

four-lane

interstate highway with

two

interchanges, and bridges over

Reedy Fork

Creek,. . .

North Carolina

DOT

.

N/A . Flatiron/Blythe RK&K

(design)... .

N/A . 7/14 NTP

and

construction start.... .

Close: 07/14


Contract Type: DB_________________ .

[x] Motorway: South

Carolina,

I-85/385 Interchange

Improvements,

Greenville

United States

Reconfigure the interchange at

I-85 and I-385

in Greenville, SC. Replace

existing loop

ramps with di. . .

South Carolina DOT

.

N/A . Flatiron/Zachry (DB)... .

N/A . Under construction.

10/14 start.

1/14 RFP.... .

Close: 10/14


US$231m

Contract Type: DB

_________________ .

Page 1 of 1Survey

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Public

Sponsors

+Advisors

Developer

+Advisors

Builders

+Operators

Financiers

+Advisors

Project

Status

Financial Close:

Cost (current US$):

Contract Type:

[x] Toll Motorway:

Colorado,

FasTracks, US 36 Express

Lanes/ BRT,

phase 2, Denver-

Boulder

United States

50yr DBFOM

with revenue

risk for the 6-mile second

and final

segment of US 36 Express

lanes project..

. .

Colorado High

Performance

Transportation Enterprise

(HPTE) /... .

Plenary Roads

Denver: The

Plenary Group (100%)

Goldman

Sac... .

Ames

Construction/

Granite jv (db) HDR (design +

engineering... .

Equity:

$20.6m. Debt:

total debt = $101m... .

Complete.

3/16 tolling

start. 1/16 complete

and open.

3/14 construction

start; est.

comple... .

Close: 3/14

Cost (Project NPV): US$200m


[x] Toll Motorway:

Florida, I-4

Ultimate Improvements,

Orlando,

Orange and

Seminole Counties

United States

40yr

availability pay

contract to widen 21.1

miles of I-4

through

Orlando to three general

purpose l. . .

Florida DOT

(Dist. 5)

URS Corp. (t&r)

Nossaman

(legal) KP... .

I-4 Mobility

Partners:

Skanska (50%)/ John

Laing

Investments...

.

Skanska USA

Civil (40%)

-Granite (30%)-Lane (30%)

(DB) HDR/Ja... .

Milestone

payments

account for about 70%... .

Under

construction.

2/15 construction

start;

expected

completion 2021.

9.4.14

commercial a... .

Close: 09/14

Cost (Project): US$2877m

Contract Type: DBFOM

_________________ .

[x] Toll Motorway:

Texas, Loop

375 Border Highway West

Extension, El

Paso

United States

DB greenfield

bypass of I-10

forming a 9-mile-long

2x2 tolled

(5.6mi tolled) loop west of

downtown E. .

.

Texas DOT

(TxDOT)/

Camino Real Regional

Mobility

Authority (... .

N/A . JD Abrams/

Kiewit

Infrastructure South... .

N/A . Under

construction.

8/22/14 commercial

close;

construction start early

2015;

completion

es... .

Close: 04/14


Contract Type: DB_________________ .

[x] Toll Motorway: Texas,

Midtown

Express (SH 183 Managed

Lanes), Dallas-

Fort Worth

United States

DB with corporate gap

financing of

$250 million and 25yr

O&M/handback

priced at $172m

secured by

Kie. . .

Texas Department of

Transportation

(TxDOT)/ Central Texas

RM... .

SouthGate Mobility

Partners:

Kiewit Development

Co. and Kie...

.

DB: KIewit Southern/Parsons

Transportation/

Austin Bridge/ P... .

5yr x $50m balance sheet

gap financing

b... .

Under construction.

11/20/14

commercial close. 5/14

preferred

bidder and award;

constructi...

.

Close: 11/14

Cost (Project):

US$1415m

Contract Type: DBOM

_________________ .

[x] Toll Motorway:

Texas, SH 71 Express

Project, Austin

United States

Develop,

design and construct

improvements

along SH 71 from

Presidential

Blvd. to east of SH 130 in .

. .

Texas DOT

(TxDOT)Mayer Brown

(legal) .

N/A . McCarthy

Building Companies... .

funds from

state and federal

governments...

.

6/14

contract awarded;

construction

to start in fall and be

completed

late 2016.... .

Close: 06/14


US$149m

Contract Type: DB

_________________ .

Page 1 of 1Survey


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+Operators

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+Advisors Project Status

Financial Close:

Cost (current US$):

Contract Type:

[x] Rail:

California,

Los Angeles Regional

Connector

Transit Corridor

United States

1.9-mile

underground

transit link between the

Metro Gold

Line, Metro Blue Line and

Expo light rail

t. . .

Los Angeles

County

Metropolitan Transportation

Authority (Me...

.

N/A . Skanska/Traylor

Brothers ... .

Metro grant:

$160m US

DOT construction

g... .

Under

construction.

9/14 constructon

start. 4/14

NTP. 2/14 $670m

construction

grant signed... .

Close: 04/14


Contract Type: DB_________________ .

[x] Rail:

Florida, All

Aboard Florida,

Miami-

Orlando

High Speed Rail

United States

High-speed

passenger rail

system in 240-mile corridor

between

Orlando and

Miami, with stops in Ft. L. .

.

Florida DOT

(FDOT)

.

Under

construction.

Unsolicited proposal

from: All

Aboard Fl... .

Siemens (train

operator) Archer

Western (upgrade 66

miles of... .

Bank of

America

Merrill Lynch 10/15

seek... .

Under

construction.

5/16 Tri Rail link to All

Aboard

Florida's Miami

Station approved by

s... .

Close: 11/14


Contract Type: BOO

_________________ .

[x] Rail:

Virginia,

Dulles Corridor

Metrorail

(Silver Line)

Project,

pkg. B, Rail

Yard

United

States

DB a rail yard

and

maintenance facility at

Dulles

International Airport as third

phase of Silver

Lin. . .

Metropolitan

Washington

Airports Authority

(MWAA)/

Washingto... .

N/A . Hensel/Phelps... . N/A . 8/14 award.

2/14 shortlist;

award expected in

June.... .

Close: 08/14


Contract Type: DB_________________ .

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Financial Close:

Cost (current US$):

Contract Type:

[x] Motorway:

Georgia, I-85

Express Lanes, Gainesville

United States

Add 10 miles of one

additional express lane

northbound and southbound on I-85

from Old Peachtree Roa.

. .

Georgia DOT

.

N/A . CW Matthews

(DB)... .

N/A . 7/15 award.... . Close: 07/15


Contract Type: DB_________________ .

[x] Motorway:

Michigan,

Detroit Freeway

Lighting,

Detroit

United States

15yr contract including

2yrs construction to

replace 15,000 lights in Detroit metro region

freeways . . .

Michigan DOT

(MDOT)

.

Freeway Lighting

Partners (FLP): Star

America Infrastructure... .

DB cost: $40m.

Aldridge Electric

(DB) Parsons Brinckerhoff (... .

debt: Allianz Life

Insurance

(Blackrock)... .

Operational.

8/24/15

financial and commercial

close. 5/14 four

shortlisted. 3/14 RFQ. 7/13... .

Close: 08/15



[x] Motorway:

Nevada,

Project Neon, I-15 Widening,

Las Vegas

(DB)

United States

A 3.7-mile-long

widening of I-15

between Sahara Avenue and the “Spaghetti

Bowl” interchange in

downt. . .

Nevada DOT

.

N/A . Kiewit

Infrastructure

West... .

N/A . 12/15 award.

10/15 preferred

bidder.... .

Close: 12/15

Cost: US$559m

Contract Type: DB

_________________ .

[x] Motorway:

Ohio, Southern Ohio Veterans

Memorial

Highway

(Portsmouth Bypass), SR

823

United States

DBFOM of a 16-mile

greenfield limited-access, four-lane divided

highway bypassing 26

miles of local . . .

Ohio Department of

Transportation (ODOT)

Ernst & Young (f...

.

Portsmouth

Gateway Group: ACS Infrastructure

Development, In... .

DB $430m

Dragados USA (Grupo ACS)

(50%), Beaver

Construction... .

equity: $49m. TIFIA

loan: $208m; 1.27% (... .

Under

construction. 4/7/15 financial

close; expected

completion

2019. 3/31/15 TIFIA agreem...

.

Close: 04/15

Cost (Project):

US$557m


[x] Motorway:

Pennsylvania,

Rapid Bridge Replacement

Project

United States

Availability-pay DBFM

bundling of 558

structurally deficient bridges to be rebuilt

under a single 3y. . .

Pennsylvania DOT

(PennDOT)

KPMG (fa & overall strategic a... .

Plenary Walsh

Keystone Partners:

Plenary Group (80%)/ The Wa... .

Walsh

(60%)/Granite

Construction (40%) ($899m DB) HDR

Engine... .

Mobilizatiton/milestone

payments: $225m ... .

Under

construction.

6/15 construction

start. 3/18/15

financial close; est.completion

12/17... .

Close: 03/15


Contract Type: DBFM_________________ .

[x] Motorway:

Texas, US 181

Harbor Bridge Replacement,

Corpus Christi

United States

Project is to replace

I-mile Harbor Bridge

carrying U.S. 181 over the Corpus Christi, TX

ship channe. . .

Texas DOT

(TxDOT)

Nossaman (legal) HNTB (technical) .

CIBC World Markets

Corp (financial)

Chadbourne & Parke (le... .

$829m DB cost.

Flatiron

(50%)/Dragados (Grupo ACS) (50%)

(DB... .

N/A . Under

construction.

8/16 groundbreaking;

five yrs.

construction. 9/28/15 CDA

signed. 4/30/...

.

Close: 09/15


Contract Type: DBM_________________ .

[x] Motorway: Virginia, I-64

Capacity

Improvements,

Seg. 1, Newport News

United States

Widen 21 miles of I-64 between Jefferson Ave.

and Yorktown Rd. in

Newport News. This

$122m project i. . .

Virgnia DOT.

N/A . Shirley Contracting (DB) Dewberry

(design)... .

N/A . Under construction.

9/15 NTP;

construction

start; est. completion

Dec.2017.... .

Close: 09/15


US$122m

Contract Type: DB

_________________ .

Name

(click for

detail) Project Description

Public

Sponsors+Advisors Developer+Advisors Builders+Operators Financiers+Advisors Project Status

Financial Close:

Cost(current US$):

Contract Type:

[x] Motorway:

Virginia, Route

29 Solutions, three projects,

Charlotteville

United States

Improve north-south

corridor on Rt. 29 in

Charlottesville/Albemarle County region. Three

projects (o. . .

Virginia DOT

.

N/A . Lane/Corman (DB)

RK&K (Richmond)

(design)... .

N/A . 3/15 start. 1/15

preferred

bidder.... .

Close: 03/15


Contract Type: DB

_________________ .

[x] N/A . N/A .

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Motorway: West Virginia,

Corridor H

United States

DBF a 7.5-mile, 4-lane section of US Route 48,

from Kerens in Randolph

County to the US 219

Connecto. . .

West Virginia DOT (WVDOT)

.

Kokosing Construction/ El

Robinson

Engineering ... .

11/15 preferred bidder;

expected

completion Fall

2019.... .

Close: 11/15

Cost: US$210m

Contract Type: DBF_________________ .

[x] Motorway:

West Virginia,

US 35 Completion

United States

Complete remaining

14.6-mile grade and

drainage project on US 35. Upon completion,

entire length of . . .

West Virginia DOT

(WVDOT)

.

Bizzack

Construction ... .

N/A . Gap financing provided

by Bizzack Constr... .

10/15

construction

start. 6/15 award;

expected

completion October 2018....

.

Close: 10/15


Contract Type: DBF_________________ .

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Project

Status

Financial Close:

Cost (current US$):

Contract Type:

[x] Toll Motorway:

Indiana,

Indiana Toll Road (ITR)

(2015)

United States

Sale of ITR

Concession Co.

(ITRCC) to IFM Investors for

$5.725b. IFM

will take over the 66yrs

remain. . .

Indiana

Finance

Authority (IFA)

.

2016: ITR

Concession Co.:

IFM Investors (IFM Gobal

Infrastr... .

Roy

Jorgenson

(O&M)... .

equity: $3.2bn

(57% of

purchase price) d... .

Operating.

6/16

CalPERS and Allstate

(insurance)

Corp. have each

purchased

stakes in IFM. ... .

Close: 05/15

Cost: US$5275m

Contract Type:

concession_________________ .

[x] Toll Motorway:

North Carolina,

I-77 HOT Lanes,

Charlotte

United States

50yr DBFOM

with toll

revenue risk to widen and

convert 26-mile

section of I-77,

north of I-85 interc. . .

North

Carolina

DOT (NCDOT)

KPMG

(financial)

Ray Strategie...

.

Cintra

Infraestructuras,

S.A. (Ferrovial) / John Laing

($25m... .

DB--Ferrovial

Agroman,

financial responsible

party with FA

(... .

equity: $249.8m

(Cintra/Aberdeen

Global ... .

Under

construction.

6/16 NC legislature

votes to

cancel

project; but Senate

refuses to

con... .

Close: 05/15



_________________ .

[x] Toll Motorway: Texas,

Bergstrom

Expressway, Austin

United States

4yr DB contract for design and

reconstruction

of 8 miles of US 183 from US

290 in Austin to

SH 71 ne. . .

Central Texas

Regional

Mobility Authority

.

N/A . Colorado River

Constructors:

Balfour Beatty/Fluor

$581 (DB)...

.

N/A . 6/15 award; expected

construction

start 2016.... .

Close: 06/15


US$581m

Contract Type: DB

_________________ .

[x] Toll Motorway:

Texas, SH 360, Fort

Worth/Arlington

United States

Design and

build 9.7 miles of

improvements

to SH 360 in Fort

Worth/Arlington

including 2x2 toll lane. . .

Texas

DOT/North Texas

Tollway

Authority (NTTA)/

North

Centra... .

N/A . Lane/Abrams

(DBM) AECOM

(design)... .

N/A . 5/15

agreement signed;

construction

start late 2015, est.

completion

fall 2017.... .

Close: 05/15

Cost: US$300m

Contract Type: DB_________________ .

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Financial Close:

Cost (current US$):

Contract Type:

[x] Rail:

California,

High Speed Rail,

construction

packages 2-3, Fresno-Kern

County

United

States

DB high-speed

rail civil works

for 60-mile segment from

the terminus of

Construction Package 1 at E.

. .

California High

Speed Rail

Authority (CHSRA)

Arcadis (pro... .

N/A . Dragados (Grupo

ACS)-Flatiron

(Hochtief-Grupo ACS)/Shimmick ... .

N/A . Under

construction.

6/15 award. 12/14 preferred

bidder. 9/14

proposals due. 4/14 RFP.

2/14... .

Close: 06/15


Contract Type: DB_________________ .

[x] Rail: Colorado,

FasTracks, Southeast Rail

Extension,

Denver

United

States

Add 2.3 miles

to the Southeast Rail

Line under the

FasTracks

Program in Denver from

Lincoln to

Ridge. . .

Regional

Transportation District

(Denver) (RTD)

.

N/A . Balfour Beatty Infra.

Inc. Parsons Brinckerhoff

(design)... .

N/A . 6/15 NTP; est.

completion 2019. 2/15

RFP.... .

Close: 06/15


US$140m

Contract Type: DB_________________ .

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Financial Close:

Cost (current US$):

Contract Type:

[x] Motorway:

Arizona, Loop

202 South Mountain

Freeway,

Phoenix

United States

Greenfield 22-

mile, 8-lane

(4x4) untolled freeway around

the southern and

western sides of Phoenix, . . .

Arizona DOT/

Maricopa

Association of Governments

HDR (des... .

... . Connect 202

Partners: Fluor

Enterprises/ Granite

Constructio... .

Federal-aid

funds state

highway funds, l... .

2/26/16 award;

agreement

finalized; to open 2019. 1/16

preferred

bidder. 11/15 proposals s... .

Close: 2/16


Contract Type: DBM_________________ .

[x] Motorway:

Washington, I-5 Freeway

and SR 16,

Tacoma

United States

Reconstruct both

lanes of I-5 at its interchange with

WA SR 16 in

Tacoma. Includes

construction of

H. . .

Washington

State DOT.

N/A . Skanska... . N/A . 9/16

construction start. ... .

Close: 09/16


US$122m

Contract Type: DB

_________________ .

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Financial Close:

Cost (current US$):

Contract Type:

[x] Toll Motorway:

Colorado, C-470

Express Lanes, Segment 1,

Denver

United States

A 27-mile tolled

managed lanes

project in the south and west

quadrants of the

Denver metro area, run. . .

Colorado

DOT/ HPTE

Louis Berger

Group .

N/A . Flatiron/Aecom

segment 1 DB

cost: Guaranteed

Maximum Price,

... .

The project

is funded

by $110.6 million ... .

Under

construction.

11/16 construction

start;

est.completion spring 2019.

4/16 award.

9/15... .

Close: 11/16


Contract Type: DB_________________ .

[x] Toll Motorway: Georgia,

I-285/SR 400

Improvements, Atlanta

United States

2014 plan: improvements

to 16.5km of

I-285/SR 400 interchange

area in metro

Atlanta. Two

projects to. . .

Georgia DOT

(GDOT)/

State Road and

Tollway

Authority

(SRTA)<... .

... . $458m DB cost. $800 project

cost. North

Perimeter Contractor... .

debt: $458m

(max) tax-

exempt bank debt;

... .

4/11/16 NTP. 4/8/16 financial

close;

completion est. 2020. 2/8/16

commercial

close. 12/10/...

.

Close: 04/16


US$458m

Contract Type: DBF

_________________ .

[x] Toll Motorway:

Texas, SH 288

Toll Lanes, Houston, Harris

County

United States

52yr (including

3.4yrs

construction) DBFOM toll

revenue-risk

concession for 2x2 toll lanes in

existi. . .

Texas DOT

(TxDOT)

Mayer Brown

(legal)

KPMG (financial)

Ja... .

Blueridge

Transportation

Group (BTG): ACS

Infrastructure

Dev... .

construction

cost est.:

$800m. Dragados

(Grupo ACS)

(30%)/ P... .

equity:

$375m

debt: $646m:

TIFIA

$357m... .

Under

construction.

5/9/16 financial close. 3/5/2016

commercial

close. 2/15 award. 1/14

RF... .

Close: 05/16



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Financial Close:

Cost (current US$):

Contract Type:

[x] Rail:

Hawaii,

Airport Guideway

and

Stations, Honolulu

United States

Construction of

5.2 miles of new

elevated guideway

between Aloha

Stadium to the Middle Street

Transi. . .

Honolulu

Authority for

Rapid Transportation

.

N/A . Granite

Construction

Co./ Shimmick Construction

Co./ Traylor... .

N/A . 9/16 award;

construction to

begin spring 2017 and be

completed by

2021.... .

Close: 09/16


Contract Type: DB_________________ .

[x] Rail:

Maryland,

Purple Line LRT,

Bethesda-

New

Carrollton

United

States

36yr DBFOM

$149m/yr

availability pay P3 (30yr O&M)

for greenfield,

stand-alone

16.2-mile light rail . . .

Maryland DOT

(MDOT)/

Maryland Transit Administration

(MTA).

Purple Line

Transit

Partners LLC: Fluor

Enterprises

(70%)/Me... .

db cost $2 bn

Fluor/Lane

(Salini Impregilo)

(30%)/Traylor

(d... .

• Progress

Payments:

$860m • Revenue

S... .

In pre-

construction.

8/16 US District judge stays

construction

start pending

another rider... .

Close: 06/16



_________________ .

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Financial Close:

Cost (current US$):

Contract Type:

[x] Toll Motorway:

California,

I-405 Improvement

Project, Orange

County

United States

Design-build

one general-

purpose lane in each direction

from Euclid

Street to I-605 in Orange

County. . .

Orange County

Transportation

Authority (OCTA)

Nossaman .

... . OC 405 Partners:

OHL USA/Astaldi.

$1.2 billion construction ... .

$1.25

billion of

local sales tax

funds. ... .

In procurement.

2/17 contract

executed. 3/16 RFP; responses

due 8.31.16.

11/15 shortlist. ... .

Close: 02/17


Contract Type: DB_________________ .

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