Charging Ahead: The Federal Role in EV Infrastructure Buildout
Introduction
The widespread adoption of electric vehicles (“EVs”) depends in large part on the installation of thousands of new public charging stations, both in highway corridors and in urban areas. Although the 2021 Bipartisan Infrastructure Law[1] (“BIL”) commits $7.5 billion in federal funding to build out a system of highway charging stations—which should assuage many “range anxiety” concerns among potential EV buyers—key obstacles relating to federal-state and state-local relationships remain. Authority for charging station siting falls to individual states and localities, while the federal government’s role is largely limited to funding station construction in areas that further federal objectives.
This article is the first of a two-part series that will explore the role the federal government and state and local governments play in building out a national EV charging network. This article summarizes the federal program for installation of charging stations in highway corridors and (to a lesser extent) rural, lower income, and parking-disadvantaged urban areas. It also discusses some similarities and differences between the rollout of EV charging and the rollout of antennas and towers for wireless service providers—which prompted federal preemption legislation—three decades ago. The second part of this series will analyze how different states and localities have approached EV siting.
Current Federal Role in EV Charging
The BIL was Congress’s first significant foray into EV charging infrastructure. The legislation authorized two Department of Transportation grant programs (with a few strings attached) and authorized the Federal Highway Administration (“FHWA”)[2] to draft and implement guidance around technical specifications that must be met for federally funded stations.
First, the National Electric Vehicle Infrastructure (“NEVI”) Formula Program provides funding to States (and the District of Columbia and Puerto Rico) to deploy[3] EV charging infrastructure, in the amount of $5 billion total over FY 2022-2026.[4] FHWA will apportion NEVI funding among States on a formula basis, similar how federal-aid highway funds are awarded. Each State submitted to FHWA a plan for how it intends to spend its award, and the agency approved all submitted plans by its statutory September 30, 2022 deadline.[5] The only substantive conditions for this NEVI funding are that the charging infrastructure must be (1) publicly available[6] and (2) located in a designated alternative fuel corridor (“AFC”) (at least initially).[7] Although by mileage a substantial majority of the corridors are between significantly populated areas, some urban and suburban thoroughfares are designated corridors and eligible for funding, and eligible projects may be located up to one mile away from the designated street or highway.[8]
On June 22, 2022, as directed by the BIL, FHWA issued a proposal that would set minimum standards and requirements for projects funded under the NEVI Formula Program.[9] The proposed regulations cover EV charging infrastructure installation, operation, and maintenance; interoperability; traffic control devices and signage; data; network connectivity; and information on locations, pricing, real-time availability, and accessibility. For example, charging stations “must have at least four charging network-connected Direct Current Fast Charger (DCFC) ports and be capable of simultaneously charging at least four EVs;” stations “must be available for use and sited at locations physically accessible to the public 24 hours per day, seven days per week, year-round;” and “States must ensure that charging ports have an average annual uptime [i.e., are operational] of greater than 97%.” The comment period closed August 22, 2022 and FHWA has yet to issue a final rule. Notably, the proposal does not cover siting.
The BIL also established a separate Charging and Fueling Infrastructure Program which features different geographic conditions for allocating a portion of the funds. FHWA will award competitive grants through this program, and hydrogen, propane, and natural gas fueling infrastructure projects are also eligible.[10] The $2.5 billion in authorized discretionary funding is evenly divided into two categories, Community Charging and Corridor Charging. A project receiving a Community grant must be “located on any public road or in other publicly accessible locations, such as parking facilities at public buildings, public schools, and public parks, or in publicly accessible parking facilities” even if owned or managed by a private entity.[11] FHWA must prioritize rural areas, low-and moderate-income neighborhoods, and communities with low ratios of private parking or high ratios of multiunit dwellings in providing these grants.[12] Eligible Community-grant projects do not have to be in AFCs. Corridor grants, on the other hand, largely mirror NEVI funding, the key exception being that the grants are discretionary.[13] Now that the NEVI program is up and running, FHWA plans to roll out this discretionary program in the coming months.
In short, then, federal involvement in EV charging buildout is limited to funding—with some broad geographical conditions—and some technical requirements for federally funded charging stations themselves.
Parallels to Wireless Infrastructure Buildout
The federal government has not entered the debate over where individual stations may be located, other than to limit its funding to certain defined areas that advance federal goals and policies. That leaves land use decisions around siting individual charging stations to states and localities. In some ways, the discourse around EV charging infrastructure siting echoes the debate around siting antennae and towers for wireless service providers in the 1990s. But in the case of cell towers, as explained below, Congress and the Federal Communications Commission (“FCC”) eventually acted to establish at least some guardrails to guide state and local land use decisions. To date, Congress has not shown an appetite for doing the same with respect to EV charging, and it is unlikely that FHWA would have authority to do so absent congressional direction.
Proliferation of early cell towers created tension with local planners and residents—they were unsightly, required space and construction, and emitted Radio Frequency (“RF”) radiation.[14] Then, as demand for cellular service increased in the early part of the decade, the market largely shifted to Personal Communications Services (“PCS”) technology. Although PCS offered certain benefits in terms of performance and reliability, the technology presented additional downsides. PCS networks required several times the number of antennas and towers to transmit signals to meet the same coverage as cellular services, and siting requirements were precise and unforgiving; moving an antenna even just a few feet can diminish a PCS network’s ability to provide uniform coverage in a given service area. As a consequence, the thousands of local zoning jurisdictions around the United States quickly developed a patchwork of controls over tower and antenna siting.
Enter Congress. As part of the Telecommunications Act of 1996, which overhauled the nation’s telecommunications law, Congress “created a national mandate for more favorable land use regulation pertaining to wireless communications.”[15] Section 704 of the TCA enacted certain limits on state and local control of cell tower siting, providing, in pertinent part: “The regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof … shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”[16] Local governments otherwise retained their general zoning authority.[17] The Supreme Court summarized the Commission’s preemptory authority in Louisiana Public Service Commission v. FCC, holding that the FCC may preempt state regulation of an intrastate matter only when (1) preemption is necessary to protect a valid federal regulatory objective; (2) the matter also has interstate aspects and it is impossible to separate the interstate and the intrastate components of the asserted FCC regulation; and, relatedly, (3) state regulation would negate the FCC’s exercise of its own lawful authority because regulation of the interstate aspects of the matter cannot be unbundled.[18]
Will Congress Preempt State and Local EV Charging Station Siting Decisions?
Cell towers and EV charging stations share some similarities. To deliver uninterrupted service, cellular companies developed an interconnected network of towers, typically in a grid pattern. Charging station companies (and the federal government) seek to provide stations at regular intervals (e.g., at least every 50 miles within AFCs) to eliminate substantial gaps and thereby decrease range anxiety. Cell companies also sited some towers on pre-existing structures. As will be discussed in the follow-up to this article, through EV readiness laws and creative solutions like utility-supported pole-mounted EV chargers,[19] charging proponents are seeking to increase access and decrease costs in this way as well.
The federal government’s role in regulating EV charging stations is currently limited to technical requirements for stations it funds, as discussed above. At some point, it appears plausible that federal technical (and possibly siting) requirements could be extended to stations funded in other ways as well. But Congress’s appetite for preempting state and local rules on siting EV charging stations seems very low. Congress acted out of necessity in 1996 when it passed the TCA and included limitations on local authority; many local governments had implemented de facto bans on new cell towers. In the conference report, Congress said: “It is the intent of this section (704) that bans or policies that have the effect of banning personal wireless services or facilities not be allowed and that decisions be made on a case-by-case basis.”[20] As we’ll see in the next article of this series, state and local governments have not taken such drastic restrictive measures when it comes to charging infrastructure siting.
[1] H.R. 3684 - Infrastructure Investment and Jobs Act, Public Law No. 117-58 [hereinafter “BIL”].
[2] Though the BIL’s EV charging provisions are directed toward the Secretary of Transportation, the Secretary has delegated to the FHWA Administrator authority to administer most provisions of title 23, U.S.C. (Highways), including 23 U.S.C. §§ 151 (National electric vehicle charging and hydrogen, propane, and natural gas fueling corridors) and 109 (Standards). Organization and Delegation of Powers and Duties, 81 Fed. Reg. 19818, 19836 (Apr. 5, 2016).
[3] The BIL uses this term somewhat broadly. Funds may of course cover purchase and installation of new charging infrastructure—including updating existing stations—but may also cover up to five years of operating and maintenance costs of that new or updated infrastructure and installation of traffic control devices to facilitate use of the eligible infrastructure. BIL § 11401(b) (codified as amended at 23 U.S.C. § 151(f)(6)).
[4] BIL Division J, title VIII, Highway Infrastructure Program heading, paragraph (2).
[5] U.S. Dep’t of Transp., Fed. Highway Admin., Historic Step: All Fifty States Plus D.C. and Puerto Rico Greenlit to Move EV Charging Networks Forward, Covering 75,000 Miles of Highway (Sept. 27, 2022), https://highways.dot.gov/newsroom/historic-step-all-fifty-states-plus-dc-and-puerto-rico-greenlit-move-ev-charging-networks.
[6] Specifically, funded charging infrastructure must provide “non-proprietary charging connectors that meet applicable industry safety standards” and “open access to payment methods that are available to all members of the public [and not] limited by membership to a particular payment provider.” BIL § 11129 (codified as amended at 23 U.S.C. § 109(s)(1)). Chargers available to authorized commercial motor vehicle operators from more than one company are also eligible, even if not open to the general public.
[7] BIL § 11401(b) (codified as amended at 23 U.S.C. § 151(f)(6)(A), (B). FHWA maintains an interactive EV AFC map on its website. See https://hepgis.fhwa.dot.gov/fhwagis/ViewMap.aspx?map=Highway+Information|Electric+Vehicle+(EV-Round+1,2,3,4,5+and+6). If a State determines (and FHWA agrees) that the designated AFCs in the State are fully built out, then the State may use the funds for charging infrastructure on any public road or in other publicly accessible locations, including publicly accessible parking facilities owned or managed by a private entity. U.S. Dep’t of Transp., Fed. Highway Admin., Memorandum re: The National Electric Vehicle Infrastructure (NEVI) Formula Program Guidance (Feb. 10, 2022), https://www.apta.com/wp-content/uploads/FHWA_Electric_Vehicle_Infrastructure_Guidance_02-10-2022.pdf.
[8] For example, Washington, DC is entirely urban yet features five (albeit very short) designated corridors that will receive $17 million in federal funding over the next five years. District Dep’t of Transp., DDOT Granted Almost $17 Million in Federal Funds For Electric Vehicle Charging Infrastructure (Oct. 17, 2022), https://ddot.dc.gov/release/ddot-granted-almost-17-million-federal-funds-electric-vehicle-charging-infrastructure.
[9] National Electric Vehicle Infrastructure Formula Program, 87 Fed. Reg. 37262 (June 22, 2022).
[10] BIL § 11401(b) (codified as amended at 23 U.S.C. § 151(f)).
[11]Id. (codified as amended at 23 U.S.C. § 151(f)(8)(E)).
[12]Id. § 11401(b) (codified as amended at 23 U.S.C. § 151(f)(8)(F)).
[13]Id. § 11101(b)(1)(C).
[14] In one instance, PriCellular Corp., a cellular services company, attempted to replace a 120-foot guywire antenna in Woodstock, New York with a 120-foot self-supporting structure. Though the new tower would occupy equal or even less space than the previous antenna, PriCellular met fierce resistance from local activists, who staged sit-ins and attempted to pressure landowners to nullify PriCellular’s site leases. See Jeneba Jalloh, Local Tower Siting Preemption: FCC Radio Frequency Guidelines Are Solution for Removing Barriers to PCS Expansion, 5 CommLaw Conspectus 113, 119 (1997).
[15]AT&T Wireless Serv., Inc. v. Orange County, 982 F. Supp. 856, 860 (M.D. Fla. 1997).
[16] Pub. L. 104–104, § 704(a), Feb. 8, 1996, 110 Stat. 56, 151 (codified as amended at 47 U.S.C. § 332(c)(7)(B)(ii)). The Communications Act of 1933 created the FCC and gave it jurisdiction over interstate communications by wire or radio, including “all instrumentalities, facilities, apparatus and services . . . incidental to [interstate] transmission” by wire. Pub. L. 73-416, §§ 1, 3, 303, June 19, 1934 (codified as amended at 47 U.S.C. §§ 151, 153(59), 303(r)).
[17] Pub. L. 104–104, § 704(a), Feb. 8, 1996, 110 Stat. 56, 151 (codified as amended at 47 U.S.C. § 332(c)(7)).
[18] 476 U.S. 374, 375 n.4 (1986) (citations omitted).
[19] Steve Hanley, Seattle Offers Utility Pole EV Chargers to City Residents (June 20, 2022), https://cleantechnica.com/2022/06/20/seattle-offers-utility-pole-ev-chargers-to-city-residents/.
[20] Conference Report No. 104-458 at 208, available athttps://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1668&context=historical.