Republicans are ramping up complaints that the Biden administration is injecting its agenda into its implementation of the bipartisan infrastructure law despite agreements reached by Republicans and Democrats to pass it last year.

In a letter sent Wednesday to governors across the country, Senate Minority Leader Mitch McConnell and Sen. Shelley Moore Capito, a West Virginia Republican and ranking member of the Environment and Public Works Committee, expressed concern about a Dec. 16, 2021, memo by the Federal Highway Administration that they say outlines policies contradicting those negotiated in the bipartisan law. The pair were among 19 Senate Republicans to support the bill in August.

The agency memo encouraged states to use federal funds to rebuild and maintain existing roads before expanding capacity — a philosophy that was part of the early House version of the bill but didn’t make it into the final bill voted on in the Senate. 

That memo vowed to “implement policies and undertake actions to encourage — and where permitted by law, require — recipients of Federal highway funding to select projects that improve the condition and safety of existing transportation infrastructure…before advancing projects that add new general-purpose travel lanes serving single-occupancy vehicles.”

The law, the memo read, “will deliver generational investments in our roads and bridges, promote safety for all road users, help combat the climate crisis, and advance equitable access to transportation.”

That memo has become a red flag for Republicans. Among those to criticize the guidance was House Transportation and Infrastructure ranking member Sam Graves, R-Mo., who did not vote for the bill. He called the law “a vehicle for the administration’s woke agenda.” 

In their letter, McConnell and Capito dismissed the memo’s power, calling it “an internal document” that “has no effect of law.”

‘No authority’

“The law addresses infrastructure issues in a manner that reflects bipartisan input and consensus and avoids burdensome, prescriptive requirements,” they wrote. “Nothing in the [law] provides FHWA with the authority to dictate how states should use their federal formula funding, nor prioritizes public transit or bike paths over new roads and bridges.”

Ed Mortimer, vice president of transportation and infrastructure at the U.S. Chamber of Commerce, echoing Capito and McConnell, downplayed the memo’s authority.

“It is not law,” he said. “It is not a requirement for states to follow. At the end of the day, the law is very clear that the states have wide latitude and local governments have wide latitude on how they use the funds. There is no restriction to stop a state, if they so choose, to expand their highway system.”

The McConnell-Capito letter comes a little over a week after Sens. Mitt Romney, R-Utah, who helped craft the bill, and Lindsey Graham, R-S.C., who voted for it, brought up the issue during the Feb. 1 confirmation hearing of Shalanda D. Young to be director of the White House Office of Management and Budget.

Romney said the memo “flies in the face of our intent and our needs,” while Graham said the memo “runs counter to congressional intent by discouraging the use of federal dollars by the states for new highway capacity projects.”

“In South Carolina, we need all the highways we can get,” Graham said. 

Separately, a Jan. 19 letter to Biden from 16 Republican governors urged Biden to allow states maximum flexibility in implementing the law. 

“Attempts to disallow the use of funding for general purpose widening projects would be biased against rural states and states with growing populations,” the governors wrote, adding, “excessive consideration of equity, union memberships, or climate as lenses to view suitable projects would be counterproductive.”

“Your administration should not attempt to push a social agenda through hard infrastructure investments and instead should consider economically sound principles that align with state priorities,” they wrote.

A Department of Transportation spokesperson, asked about the memo last week, said it was not equivalent to a mandate.

“To clarify, the policy memo issued by FHWA does not adopt a ‘fix it first’ mandate or even use that phrase,” the spokesperson said. “It is an internal memo to FHWA staff, and it clearly tells FHWA staff that it ‘does not prohibit the construction of new general purpose capacity on highways or bridges.’”

The spokesperson said the memo lays out “some common sense factors to be considered when capacity expansions are proposed, such as how the state is doing at maintaining its existing roads and bridges and whether less expensive interventions could address the congestion problem.”