Infrastructure Disinvestment

Introduction to Infrastructure Disinvestment

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} 

Source: Town of Milton, Massachusetts.

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: 

• Official abandonment or road closure via legislative or administrative proceedings as specified in state statute or otherwise authorized;^{See footnote 3}  
• Downgrading roads to reduce the level of service and maintenance requirements; and 
• Phasing out maintenance as environmental conditions degrade to certain threshold levels, as laid out and provided for, e.g., in a plan, statute, or ordinance.

Infrastructure Disinvestment in a Managed Retreat Context

Road washout on Olympic Peninsula in Washington. Source: National Park Service.

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).
 

Policy Tradeoffs of Infrastructure Disinvestment

Practice Tips

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:

• Integrate disinvestment strategies or policies into transportation planning and programming: Long-range planning at state and regional levels involves specifying and documenting performance measures and targets that will help achieve national goals, including safety, infrastructure condition (state of good repair), and environmental sustainability, among other goals.^{See footnote 6} State DOTs and MPOs, therefore, might consider integrating resilience and the need for disinvestment into these documents as a means of meeting performance goals.^{See footnote 7} These plans provide the basis for transportation improvement programs (the list of projects to be funded over a five-year timeframe), which then can provide the platform for ongoing decisions about specific infrastructure investment and disinvestment needs.^{See footnote 8} Local governments can similarly integrate disinvestment into local planning processes such as comprehensive planning and capital improvement/investment planning. Infrastructure decisionmakers and planners can assess the effects of underinvestment in coastal roads where maintenance or upgrade needs have surpassed agency capacity and budget and use this information to inform a more strategic disinvestment policy.

• Evaluate an asset’s use, criticality, and/or role in the system as a whole when considering disinvestment: For a road that is heavily used or considered “critical” (e.g., serving an important network function, providing sole access to critical goods and services, etc.), or that provides sole access to homes, disinvestment may not be a viable option until other managed retreat strategies have been implemented, significantly reducing the road’s use and importance. Agencies will need to consider the context of the surrounding areas and use factors such as annual average daily traffic and the type(s) of vehicles using the road (e.g., freight vs. passenger) when evaluating the feasibility of a disinvestment strategy for a high-risk coastal road.

• Consider phasing disinvestment as appropriate in the context of asset use and criticality, infrastructure condition, and the implementation of other managed retreat tools: The timing of a disinvestment strategy should be informed by the asset’s criticality and use as mentioned above. For less utilized and non-critical roads, more immediate disinvestment may be a viable option to address safety and budgetary concerns of increasing maintenance needs. For heavily used or critical roads, a longer-term strategy towards disinvestment may be appropriate, such as by integrating a phased disinvestment policy into planning documents or local ordinances. The infrastructure condition in real-time may also factor into the timing or type of disinvestment decision. For example, reducing maintenance may offer a viable near-term strategy with the expectation that the road may not be rebuilt after significant damage (e.g., from a storm event) or when certain threshold environmental conditions are reached, which might be laid out in ordinance, for example.

• Engage community members, businesses, emergency responders, and other stakeholders early in planning processes before initiating a disinvestment strategy for a particular road or asset: A disinvestment strategy may be more politically feasible if all interested stakeholders are informed of: the asset’s vulnerabilities and related safety concerns; economic impacts of maintaining the same asset condition or performance versus disinvesting; and anticipated travel delay or access-related impacts for community members and emergency responders. Outreach and engagement can also help inform governments on how the infrastructure in question is used, its importance to the transportation network, and whether and how any anticipated travel impacts such as detours or loss of access can be mitigated.

• When considering disinvestment strategies, evaluate government authority and procedures available: If considering formally disinvesting in coastal roads, agencies should be familiar with authorities and requirements established in state law. For example, the state may set uniform minimum design and maintenance standards that could inhibit efforts to disinvest in the form of phasing out maintenance.^{See footnote 9} In the context of formal road closure or abandonment, agencies should understand the abandonment proceedings available to them and the factors that go into any analysis of whether abandonment would be reasonable. State law typically establishes a standard for when abandonment or discontinuance is permissible^{See footnote 10} and state courts may have further elaborated on these standards by identifying factors that must be weighed in determining whether tests like “substantial public purpose,” “public interest,” and “reasonable means of access” have been met. The specific standards and factors may differ depending on municipal, county, or state level as well.
  

• Evaluate the potential for negligence claims arising from reduced maintenance of coastal roads: If the disinvestment strategy sought involves phasing out maintenance without formally closing or abandoning the road, agencies should be familiar with how the duty to maintain roads has been interpreted in their jurisdiction and assess whether reduced maintenance might result in negligence claims and if sovereign immunity applies (typically depending on the distinction of discretionary versus operational functions of government, as discussed in Crosscutting Legal Considerations>Negligence).^{See footnote 11} These claims may be warded off by adopting a more proactive disinvestment strategy that lowers the maintenance standards for the road, such as by reclassifying the road to reduce the level of service and providing notice to travelers regarding road conditions.^{See footnote 12} However, such approaches might open the agency to takings claims if it effectively prevents access (as discussed further below and in Crosscutting Legal Considerations).

• Evaluate the potential for takings claims resulting from a disinvestment strategy, especially road abandonment or closure: Agencies considering disinvestment strategies, particularly abandonment or other means of permanent road closure, should understand the legal standards for when a “taking” of private land has occurred. This is typically dependent on the specific facts and circumstances and will involve examining context such as: the level of interference the road closure causes for property owners (i.e., how their direct access and access to the public road network as a whole is affected), whether the interference or inconvenience of access is specific to one landowner or more general, whether reasonable alternative access options are available, and how the road or road system is used and whether the same level or type of access (considering, e.g., load restrictions) is provided in alternate routes. To reduce the likelihood of successful takings claims, agencies could implement proactive policies that establish guidelines or formulas in planning, policy, and law or ordinance, as discussed above. Demonstrating awareness of the challenges and importance of the decisions, providing ample opportunity for public input, and providing robust due process for property owners may help courts recognize the inevitability of retreat in some instances. Potential legal issues relating to infrastructure disinvestment and takings are discussed further in the Crosscutting Legal Considerations section.