As electric vehicles (EVs) are on the rise, recent federal legislative and policy initiatives have prompted states to develop appropriate infrastructure plans. These plans will provide the greater connectivity needed to support the future of EV transportation. As government plans are approved and implemented, new legal issues are likely to arise.
On November 15, 2021, President Biden signed the Bipartisan Infrastructure Act (BIL), directing funding for transportation improvement programs, including the development and expansion of electric vehicle infrastructure, to state and local governments. According to the BIL, each state was required to submit a National Electric Vehicle Infrastructure (NEVI) plan to the U.S. Department of Transportation by August 1, 2022.
The US Department of Transportation and the US Department of Energy recently announced that all 50 states, the District of Columbia and Puerto Rico have submitted their EV infrastructure deployment plans.1 On September 14, 2022, the Federal Highway Administration (FHWA) announced approval of Pennsylvania’s NEVI plan. So far, more than two-thirds of state plans have been approved. This alert discusses the Pennsylvania plan at length as an example of how states are approaching these new funding opportunities.
Pennsylvania submitted its plan2 for examination on July 21, 2022 (NEVI plan). Pennsylvania is expected to receive $171.5 million in NEVI funding over the next five years, with an additional $2.5 billion in grants available for charging and fueling infrastructure. Pennsylvania’s NEVI Plan has established six goals for the Commonwealth’s NEVI electrification program:
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Build a consistent, resilient charging network to improve availability of when and where people need to charge.
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Fund infrastructure that is safe and convenient for travelers.
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Ensure that EV infrastructure funding is distributed and applied equitably and benefits all populations, including underserved and rural communities.
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Complement the NEVI formula program with appropriate training and workforce diversity to support economic growth, equity and security.
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Develop a loading network to support the movement of freight and goods across the Commonwealth.
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Provide environmental benefits that can be shared by all of Pennsylvania’s communities.
These six goals will be the focus for the $25.4 million in NEVI funding that Pennsylvania will receive in fiscal year 2022-2023.
Pennsylvania’s NEVI plan builds on the foundations of the Pennsylvania Department of Transportation’s (PennDOT) 5-Year Electric Mobility Plan (Mobility Plan).3 which outlines several EV initiatives. Currently, Pennsylvania is home to more than 2,700 public electric vehicle charging stations installed at over 1,100 locations across the Commonwealth.4 The mobility plan supports the installation of at least 2,000 new electric vehicle charging ports at 800 locations nationwide by 2028. PennDOT estimates this investment will cost between $250 million and $500 million, depending on the mix of charging types used. In addition to BIL funding, PennDOT hopes to leverage other funding mechanisms across the state to achieve this goal.
Per its mobility plan, PennDOT will prioritize upgrading all highways to alternative fuel corridors (AFCs) as defined by FHWA guidelines.5 PennDOT has identified both primary and secondary priorities for installing EV charging stations based on the travel needs of Pennsylvanians. Primary destinations for EV charging stations include interstate and trunk routes, heavily trafficked regional routes, and destination travel routes (e.g., state parks). PennDOT also plans to target emergency travel, commuter travel, and cargo travel routes for electric vehicle charging improvements.
According to the FHWA, Pennsylvania has more than 120,000 miles of public roads, ranking it 11th among the states in the country.6 PennDOT hopes to install at least one charging station every 20 miles or less along interstate corridors throughout Pennsylvania to exceed national AFC standards, which currently require a charging station every 50 miles or less. Specific site selection and the number of charging stations are based on a number of criteria, including Pennsylvania employment, population, transportation and equity considerations.
In response to the BIL signing, US Secretary of Transportation Pete Buttigieg stated, “Investing in the President’s bipartisan infrastructure bill for a national EV charging network is an important step in ensuring that EVs are not a luxury item and that everyone in America can use one.” benefit from clean transport.”7 Minister Buttigieg also predicted that expanding EV infrastructure would greatly benefit people in rural communities, who often have much longer and more costly commutes compared to workers in urban or suburban settings. Given Pennsylvania’s diverse geography and demographics, PennDOT is seizing the opportunity to promote EV connectivity in all corners of the Commonwealth.
PennDOT projections suggest as many as 1 million electric vehicles will be on the road in Pennsylvania by 2028.8th To meet this growing need, Pennsylvania will need around 50,000 home chargers by 2028, a need that will likely be met by a mix of public and private installations. While PennDOT’s goal of installing 2,000 EV charging ports by 2028 is based on current projected EV growth in the Commonwealth, PennDOT acknowledges that going forward it will consider more “aggressive” installation strategies beyond those outlined in its mobility plan go out.
The various state plans submitted to the US Department of Transportation are being reviewed by the FHWA and the Joint Office of Energy and Transportation, an office established under BIL to facilitate cooperation between the US Departments of Transportation and Energy .9 Permits are expected by September 30, 2022. Once approved, state departments of transportation will be able to deploy EV charging infrastructure using funds from the NEVI formula program. In Pennsylvania, NEVI funding and administration will be managed by PennDOT, with EV infrastructure expansion efforts expected to officially begin as early as fall 2022.
The implementation of state NEVI plans will potentially raise many legal issues involving federal, state, and local governments. For example, the physical construction of electric vehicle charging stations is subject to local land use ordinances and building codes. Additionally, when optimizing EV charging station locations, important domains and private property usage can be an issue. Public utilities will also be involved in this process as charging capabilities will be provided over existing state and federal regulated networks. Upgrades of site host network facilities and connectivity facilities may be required to support EV charging infrastructure, and moreover, the proliferation of publicly available charging facilities presents a new opportunity for load growth and managed charging programs.
Following the upcoming distribution of NEVI formula program funds, state departments of transportation will soon issue Requests for Proposals (RFPs) from potential EV installation vendors. The FHWA recently proposed minimum standards and requirements for government-funded EV charging infrastructure and provided guidelines for vendor compliance.10 Companies involved in this work must consider BIL-related requirements and other state and federal regulations at all stages of the bidding and installation process. Additional legal and regulatory considerations are likely to continue as the state’s NEVI plans come into effect.
FOOTNOTES
1 https://highways.dot.gov/newsroom/biden-harris-administration-announces-all-50-states-dc-and-puerto-rico-have-submitted.
2 https://www.penndot.pa.gov/ProjectAndPrograms/Planning/EVs/Documents/Final%20PA%20NEVI%20State%20Plan%20(ver%207-21-2022).pdf.
3 https://www.penndot.pa.gov/ProjectAndPrograms/Planning/EVs/Documents/EVMobilityPlan.pdf.
4 https://www.pahouse.com/InTheNews/NewsRelease/?id=124994#:~:text=According to %20to%20the%20Pa.,als%201%2C100%20Locations%20in%20Pennsylvania.
5 https://www.fhwa.dot.gov/environment/alternative_fuel_corridors/.
6 https://www.fhwa.dot.gov/policyinformation/statistics.cfm.
7 https://www.transportation.gov/briefing-room/president-biden-us-department-transportation-releases-toolkit-help-rural-communities.
8th https://files.dep.state.pa.us/Energy/OfficeofPollutionPrevention/StateEnergyProgram/PAEVRoadmap.pdf.
9 https://driveelectric.gov/.
10 https://www.klgates.com/KL-Gates-The-Energizer-Volume-104-7-11-2022.
