Infrastructure resilience legislation typically covers a range of disaster mitigation activities and preparedness planning. Critical infrastructure spans a vast array of issues―communications infrastructure, financial sector, health sector and more. While there are few sectors that natural disasters do not impact, key state legislative trends in 2019 and 2020 in particular encompassed transportation infrastructure, building codes and energy grid resilience. These specific subsets of infrastructure resilience are discussed below. States enacted at least 70 infrastructure resilience bills in these areas.
When disasters arrive, their impact is most immediately evident on the built environment. Public infrastructure not only sustains some of the most extensive damage from disasters, it supports the continued operation of a range of key sectors within a community. Roads, bridges and other key components transport vulnerable populations out of harm’s way―ideally before, but sometimes during and just after, the event. As noted by the Federal Highway Administration (FHWA) in 2019, damage from extreme weather events―heat waves, drought, tropical storms, high winds, storm surges and heavy downpours―is occurring more frequently and comes at significant costs to repair. As Congress has engaged in ongoing negotiations in recent years over a comprehensive infrastructure package, it has also included a transportation resiliency strategy for weather-resilient infrastructure projects along the country’s freight corridors to mitigate extreme weather impacts.
States have also acknowledged and grappled with this reality. In 2019 and 2020, states considered a range of such solutions, from emergency evacuation routes during floods, fires and hurricanes to highway, road and bridge infrastructure projects and preparing for various changes resiliency may necessitate. In 2019 and 2020, at least four states—California, Florida, Maine and Vermont—enacted seven pieces of legislation addressing transportation resilience. These include:
- California SB 99 (2019) requires localities to review and update safety elements in local government’s general plans with information identifying residences at high risk of floods or wildfires without at least two emergency evacuation routes.
- California AB 74 (2019) appropriates $2.5 million to reimburse localities for maintaining evacuation routes during emergencies, specifying the intent of the Legislature that localities should develop standards for such routes, as well as create and maintain signage and other necessities.
- California AB 477 (2019) requires local governments to include persons with disabilities in the next update of emergency plans.
- Florida SB 7068 (2019) establishes the Multi-Use Corridors of Regional Economic Significant (M-CORES) program to study three regional corridors for accommodating multiple modes of transportation and various types of infrastructure. The bill includes a task force for each of the three proposed facilities (Southwest-Central Florida Connect, Suncoast Connect and the Northern Turnpike Connector) tasked in part with evaluating the necessity for hurricane routes along the corridor, as well as the associated environmental and economic impacts. The bill also allocates $10 million per year over four years to:
- The Small County Road Assistance Program, to assist small county governments in resurfacing or reconstructing county roads, with priority given to those that serve as an evacuation route.
- The Small County Outreach Program, to assist small county governments in repairing or rehabilitating county bridges, paving unpaved roads, addressing road-related drainage improvements, etc.
- Each program may give preference to projects in counties impacted by hurricanes.
- Maine Ballot Question 1 (2019) was approved by voters to provide $4 million for a competitive grant program that matches local funding for upgrades to local culverts at stream crossings to improve fish and wildlife habitats and enhance community safety.
- Maine SB 550 (2019) establishes a Climate Council to prioritize a plan encouraging and preparing for transitions in transportation, including infrastructure changes resulting from climate disruption. The council’s Transportation Working Group released a June 2020 plan recommending the state conduct a statewide infrastructure vulnerability assessment for roads, bridges and culverts, airports, railroads, ferries, ports and wharfs, maintenance facilities and public transit systems.
- Vermont HB 688 (2020) establishes a Subcommittee on Rural Resilience and Adaptation, directing it to focus on the pressures that climate change adaption will impose on rural transportation.
Building codes have been identified as a highly cost-effective strategy to reducing the impacts of disasters. The congressionally established National Institute of Building Sciences found that the regular adoption of building codes provides an $11 benefit for every $1 invested. A recent FEMA study found that building codes provided more than $27 billion in cumulative mitigation benefits against flood, hurricane wind and earthquake hazards from 2000 to 2016 and could help communities avoid $132 billion to $171 billion in cumulative losses through 2040. Building code vintages and adoption processes vary greatly in states across the country―from enforcing a statewide building code or having a largely decentralized statewide code to having a statewide minimum code but allowing local discretion for enforcement or amendments, or deferring fully to local control. Building code requirements can also be limited to communities that are most vulnerable to disasters, such as homes in flood plains, on the coasts, or exposed to the Wildlife Urban Interface or to specific building types including state buildings or schools. Up-to-date building codes can also make a state more competitive for FEMA BRIC grants, reduce resident’s insurance premiums through the NFIP Community Rating System and the Building Codes Effectiveness Grading Schedule (BCEGS) and potentially ease recovery with Post-Disaster Public Assistance funding. In 2019 and 2020, 13 states updated their codes via regulatory processes previously established by the legislature, while five states adopted new codes or updated existing codes via legislation. These include:
- Nebraska Legislative Bill 348.
- Utah HB 29.
- Maine Legislative Document 855.
- Texas HB 2858.
- New Hampshire HB 562.
In the wake of increasingly severe disasters, policymakers and industry have sought ways to balance energy infrastructure protection with service restoration. State legislatures have actively addressed these issues―both in disaster mitigation by providing incentives for investments that harden infrastructure and in facilitating swift response and recovery actions after disasters strike. Legislative trends in energy resilience emphasize utility regulation, grid hardening and backup power. Fourteen states enacted at least 30 bills in these areas in 2019 and 2020.
While the energy industry has taken its own measures to improve resilience, state legislation has complemented these efforts in interstate mutual assistance, billing practices transparency, and utility disaster mitigation plans. Utility mutual assistance agreements establish a broad support network of utilities by which neighboring (including out-of-state) utilities partner in restoration work. Similarly, state legislatures in at least 24 states implemented business rapid response laws, which temporarily remove some licensing and tax requirements for out-of-state businesses and employees engaged in emergency response and restoration work. Puerto Rico enacted a law that will add transparency to how utilities bill customers during outages, while other states have considered measures that would force utilities to compensate customers whose service isn’t restored within a certain amount of time after an event.
The deadly 2017 and 2018 wildfire seasons prompted western states like California to pass a slate of bills regulating electric utilities. California alone passed nine bills in 2019 addressing everything from fire prevention practices to utility communication requirements. Some of these bills heightened oversight of utilities’ vegetation management and disaster mitigation plans. They also expanded state oversight and communication requirements for “de-energization” events—when utilities cut off power to portions of the grid to avoid sparking a fire during periods of elevated fire risk. Some of these bills include:
- California SB 247 (2019) requires an electrical corporation to notify the public utilities commission’s (PUC) Wildfire Safety Division after it completes all or a substantial portion of the vegetation management requirements in its wildfire mitigation plan. The Wildfire Safety Division must audit the work performed and specify any failure to comply with the requirements.
- California SB 560 (2019) requires electric utilities to establish procedures to notify all public safety offices, critical first responders, health care facilities and operators of telecommunications infrastructure within the footprint of a potential de-energization event.
- Nevada SB 329 (2019) requires an electric utility to submit a natural disaster protection plan to the PUC every three years for approval to recover costs related to plan development and implementation. The plan must identify high-risk areas for wildfires or other disasters, approaches for cost-effective mitigation, proposed protocols for de-energizing distribution lines, and implementation capabilities.
Utah HB 66 (2020) amends cost-recovery statutes, grants the PUC authority to establish procedures related to wildfire planning, and requires utilities and electric cooperatives to submit wildfire protection plans for the commission’s approval.
Some of the most disaster-impacted states have sought to prevent the worst of the damage by hardening their energy grid infrastructure in recent years. These measures encourage utilities to invest in upgrades to existing infrastructure, incorporate grid-hardening measures in plans to replace infrastructure, and often provide utilities with a way to finance projects. These measures also seek to mitigate risks from certain threats, like substation flood prevention projects in coastal areas or concrete utility pole installation in regions with higher exposure to strong winds. In some cases, these projects include undergrounding electric lines in high-risk areas—whether to mitigate against hurricane-force winds that consistently knock out power or to prevent lines from sparking the next dangerous blaze in very dry regions.
While California and Florida passed important grid-hardening legislation in 2019, Virginia passed a variety of energy resilience measures early in 2020. Illinois and New Jersey have also seen bills in the past two years that would require certain electric lines to be placed underground, while Massachusetts, Missouri, New Jersey and Texas all considered bills that sought to enhance electric system resilience. Key examples include:
- California SB 70 (2019) requires each electrical corporation’s wildfire mitigation plan to include a description of where and how the corporation considered undergrounding electrical distribution lines within service territories identified to have the highest wildfire risk.
- Florida SB 796 (2019) requires utilities to develop transmission and distribution system storm protection plans, including substantial undergrounding and flood mitigation. These plans must be approved by the Florida PUC and updated every three years. The commission is required to determine the utility’s prudently incurred costs under the plan annually and allow the utility to recover those costs through a charge on customer bills.
- Virginia HB 576 (2020) makes stipulations on two electric transmission line projects to pilot undergrounding in the state.
- Virginia HB 1030 (2020) establishes that, if the Virginia Corporation Commission approves an underground transmission line project under a pilot program, future projects in the same right of way should also be placed underground. Whether future projects are required to be undergrounded will be determined based on technical feasibility and community support, while the estimated cost of placing the line underground must be less than 2.5 times the cost of placing it overhead.
Microgrids and Backup Power
Microgrids and backup generators can keep critical loads powered and operational—whether at an emergency shelter, a health care facility or an individual home—until normal service is restored. States like California and Puerto Rico have moved to offer clarity to microgrid developers by standardizing service tariffs. States have also considered backup power requirements for certain facilities and broad planning initiatives to identify areas and facilities where backup power would be particularly beneficial. Some of these bills include:
- Massachusetts HB 3941 (2019) creates a matching grant program and offers technical assistance for cities and towns to develop microgrids.
- California SB 167 (2019) requires each electrical corporation to identify ways to mitigate the public safety effects of de-energization events, especially on customers who use medically essential equipment. It also authorizes electrical corporations to deploy backup electrical resources or provide financial assistance for backup electrical resources to those customers.
- Puerto Rico SB 657 (2020) requires group homes, day care sites and elderly care facilities to have sufficient water reserves and a backup electric generator in order to be licensed.
- Virginia SB 1077 (2019) requires licensed assisted living facilities with six or more residents to have a temporary emergency electrical power source available for use on-site in the event of power outages.
Virginia SB 350 (2020) establishes the Emergency Shelters Upgrade Assistance Grant Fund administered by the Department of Emergency Management. It provides matching funds to localities to install, maintain or repair infrastructure for backup energy generation in emergency shelters.
Several states also considered emergency communications legislation since 2019. Many of these bills are aimed at enhancing states’ emergency communication systems and updating 911 laws. Some bills cover training for 911 operators, while others address the costs involved with emergency telephone systems. In 2019 and 2020, 16 states enacted at least 28 bills related to emergency communications and 911. Some examples of these bills include:
- California SB 670 (2019) requires a provider of telecommunications services that provides access to 911 services to notify the Office of Emergency Services within 60 minutes after discovering an outage that limits customers’ ability to make 911 calls or receive emergency notifications.
- Maine HB 1281 (2019) modifies the state’s emergency services communication laws to reflect that text messaging can be used to contact 911.
- Tennessee SB 1958 (2019) requires training for 911 call takers and public safety dispatchers to include instruction on dispatcher-assisted delivery of CPR instructions to callers or bystanders.
- Virginia HB 1003 (2020) transfers responsibilities for the 911 Services Board from the Virginia Information Technologies Agency to the Virginia Department of Emergency Management. The Division of Public Safety Communications within the Department of Emergency Management is directed to assist in the development of enhanced emergency telecommunications systems throughout the state.
West Virginia HB 4123 (2020) requires each county emergency answering point to be constantly operated by an emergency telecommunicator. It specifies that a county commission or the West Virginia State Police should seek the advice of telephone companies and local emergency providers in order to develop an enhanced emergency telephone system.