Agencies overseeing transportation infrastructure often must make difficult decisions regarding maintenance needs and priorities given budgetary constraints and other challenges. Disinvestment in general refers to a process of consciously allowing an infrastructure asset to “fall below previously accepted standards of condition or performance,” typically to be able to reduce long-term investment in the asset and prioritize resources elsewhere.See footnote 1 This is in contrast to underinvestment in infrastructure, which refers to a gap between funding needs to prevent asset deterioration and actual funding levels but is less of a conscious decision than disinvestment (though it may in some instances have the same practical effect, i.e., infrastructure that does not meet its standard of performance). The need for disinvestment may arise in contexts such as shifting use of the infrastructure, aging infrastructure, budgetary constraints, and climate change-related risks.See footnote 2
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In this section, the term “disinvestment” is used more specifically to refer to strategies that either phase out maintenance of roads or affirmatively abandon or discontinue roads where coastal conditions make upkeep challenging or prohibitive. Disinvestment strategies may include, for example:
Ultimately, state DOTs and local governments may have to adopt a disinvestment strategy for road infrastructure that is repeatedly flooded and damaged or otherwise at high risk of regular damage due to sea-level rise and coastal conditions. Where coastal roads are frequently flooded, eroding, or experiencing storm-related damages, underinvestment may already be a concern leading to poor infrastructure performance, traffic delays, and safety concerns. A more deliberate approach through disinvestment may provide the most practical strategy to reduce the risk of public harm caused by traveling a road in unsafe condition – particularly where the alternatives (more frequent maintenance/repairs, road redesign or protection, or realignment) would place a far greater strain on the agency or municipal budget.See footnote 4
These strategies each come with different considerations, benefits, and drawbacks. For example, disinvestment can help address public safety concerns and ease the burden of mounting maintenance costs as coastal roads are more frequently inundated and damaged by tidal flooding and storm events. However, these strategies may come with legal risk. For example, a disinvestment strategy may be challenged as a “taking” of private property (typically, right of access to the road network) without just compensation. Agencies should understand the legal issues arising in the context of disinvestment (overviewed below and discussed further in the Crosscutting Legal Considerations section).
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When considering the need to disinvest in public infrastructure through reduced or phased out maintenance or road closure/abandonment, decisionmakers may wish to consider the following practice tips to balance policy tradeoffs:
Endnotes:
1. Nat’l Acad. of Sci., Eng’g, & Med., Economic and Development Implications of Transportation Disinvestment 1, 5 (2015), View Source. | Back to contentBack to content
2. Nat’l Acad. of Sci., Eng’g, & Med., Economic and Development Implications of Transportation Disinvestment 1-2 (2015), View Source. | Back to contentBack to content
3. Often the ability of a municipal or county government to abandon, discontinue, or disinvest assets like roads will be laid out in statute, along with a procedure detailing public notice and hearing requirements, if any, and any avenues for review or appeal. See, e.g., Conn. Gen. Stat. §§ 13a-43, 13a-49 (2020); Del. Code Ann. tit. 17 § 1302 (2019-2020), Va. Code Ann. § 33.2-909 (2020); La. Rev. Stat. Ann. § 48:701 (2019); Tex. Transp. Code Ann. §§ 251.058, 311.007, 311.008 (2019). Back to contentBack to content
4. A synthesis study of economic implications of highway disinvestment, based on literature review, case examples, and surveys, found that “discussions about disinvestment are best informed by identifying the causes and consequences of underinvestment and progressing to a more strategic and deliberate approach.” Nat’l Acad. of Sci., Eng’g, & Med., Economic and Development Implications of Transportation Disinvestment 4 (2015), View Source. | Back to contentBack to content
5. For more information on economic implications of highway disinvestment, and resources for modeling economic impacts, see Nat’l Acad. of Sci., Eng’g, & Med., Economic and Development Implications of Transportation Disinvestment (2015), View Source. | Back to contentBack to content
6. 23 U.S.C. § 150(b). Back to contentBack to content
7. Regarding changing maintenance and asset management needs with climate change, FHWA’s Climate Change Adaptation Guide for Transportation System Management and Operations (TSMO) notes: “When setting or revising performance measures, it is important to work with local communities to establish a tolerance level for disruption (i.e., the acceptable level of operational performance if threat occurs) given the changes that are projected to occur due to climate change. It will be critical to explain that in some ways TSMO objectives may become easier while in other ways it may become harder … By using a scenario planning process, it can be demonstrated that in some instances, it will be harder to maintain historic levels of services (LOS) with more intense/frequent events and therefore the performance measures may need to be revised to reflect the changing reality.” Fed. Highway Admin., U.S. Dep’t of Transp., Climate Change Adaptation Guide for Transportation Systems Management, Operations, and Maintenance 30, available at View Source. | Back to contentBack to content
8. A survey of state DOTs found that disinvestment situations most often (55% of the time) arose in the context of developing a state transportation improvement program. Nat’l Acad. of Sci., Eng’g, & Med., Economic and Development Implications of Transportation Disinvestment 3 (2015), View Source. | Back to contentBack to content
9. This is the case, for example, in Florida: “Standards and criteria for all public roads not part of the state or national highway systems are found in FDOT’s publication, commonly referred to as the Florida Greenbook. According to the Florida Greenbook, it is essential to maintain all aspects of the road at the ‘highest reasonable level of safety’ and to maintain roads in a quality condition. At the same time, the Florida Greenbook recognizes that ‘a comprehensive preservation program is expensive’ and that ‘establishment of appropriate budget priorities and careful planning’ are important. Additionally, the Florida Greenbook notes the need to establish priorities in conducting maintenance and that ‘[e]very effort should be made to ensure the highest safety payoff from the maintenance dollar.’” Thomas Ruppert, Erin Deady, Jason Evans, & Crystal Goodison, Legal Issues When Managing Public Roads Affected By Sea Level Rise: Florida (2019), available at View Source (citations omitted). | Back to contentBack to content
10. See, e.g., Conn. Gen. Stat. §§ 13a-43, 13a-49 (2020); Del. Code Ann. tit. 17 § 1302 (2019-2020), Va. Code Ann. § 33.2-909 (2020); La. Rev. Stat. Ann. § 48:701 (2019); Tex. Transp. Code Ann. §§ 251.058, 311.007, 311.008 (2019). Back to contentBack to content
11. Sovereign immunity defenses may be clarified in state tort claims acts and the distinction between discretionary and operational functions may be further clarified in state law. See, e.g., N.H. Rev. Stat. § 230:80 (2020) (noting liability limitations for the state department of transportation relating to claims of injury or property damage from construction, maintenance, and repair of highways and bridges, and clarifying that “[t]he setting of construction, repair, or maintenance standards of levels of service of highways and highway bridges by the commissioner, whether accomplished formally or informally, shall be deemed a discretionary, policy function for which the department of transportation shall not be held liable in the absence of malice or bad faith” (emphasis added)). Back to contentBack to content
12. For a review of state statutes addressing “low-volume” or “minimum maintenance” standards, see Shana Campbell Jones, Thomas Ruppert, Erin Deady, Heather Payne, J. Scott Pippin, Ling-Yee Huang, & Jason M. Evans, Roads to Nowhere in Four States: State and Local Governments in the Atlantic Southeast Facing Sea-Level Rise, 44 Colum. J Envtl. L. 67, 119-120 (2019). For an example of how a proactive strategy might be designed at the local level, see the case study “Florida Sea Grant's Model Ordinance: Environmentally Compromised Road Segments,” at p. 6. Back to contentBack to content
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