The American Recovery and Reinvestment Act of 2009 (hereinafter "the Recovery Act") has its proponents and detractors. At a time when the United States was facing its worst recession in more than fifty years, the 1 1 1th session of the United States Congress ("Congress") passed the Recovery Act to stimulate and stabilize the United States economy. The intention of the Recovery Act was to create jobs, promote additional capital investment, increase consumer spending, and minimize or avoid reductions in state and local government services. In total, more than $700 billion was allocated to the Recovery Act via federal tax cuts, expansion of unemployment benefits and domestic spending for education, health care, and infrastructure. More than a third of the money was slated for projects and activities, including construction and certain research projects. To implement a project using the allocated federal funds, agencies and funding recipients must comply with federal laws and regulations.1 This article will address whether governmental immunity to tort liability has been imputed to infrastructure projects funded via the Recovery Act. This article will summarize the Recovery Act and the background and history of governmental tort immunity while addressing the possibility that immunity at the federal and state levels has been imputed to government contractors based upon the Recovery Act While this article highlights the potential implications, final determination is beyond its scope and may not be fully resolved until federal and/ or state courts address the matter directly.
The Recovery Act
The Recovery Act received bipartisan support during the transition from one administration to the next. The newly elected President stated the Recovery Act
will create or save 3.5 million jobs over the next two years. It's that we're putting Americans to work doing the work that America needs done, in critical areas that have been neglected for too long; work that will bring real and lasting change for generations to come. Because we know we can't build our economic future on the transportation and information networks of the past, we are remaking the American landscape with the largest new investment in our nation's infrastructure since Eisenhower built an Interstate Highway System in the 1950s. Because of this investment, nearly 400,000 men and women will go to work rebuilding our crumbling roads and bridges, repairing our faulty dams and levees, bringing critical broadband connections to businesses and homes in nearly every community in America, upgrading mass transit, building high-speed rail lines that will improve travel and commerce throughout our nation.2
The Recovery Act was a direct response to the economic crisis, with three immediate goals:
* Create new jobs and save existing ones;
* Spur economic activity and invest in long-term growth; and
* Foster unprecedented levels of accountability and transparency in government spending.
The Recovery Act intends to achieve those goals by
* Providing $288 billion in tax cuts and benefits for millions of working families and businesses;
* Increasing federal funds for education and health care as well as entitlement programs (such as extending unemployment benefits) by $224 billion;
* Making $275 billion available for federal contracts (over $100 billion for infrastructure projects), grants and loans; and
* Requiring recipients of Recovery funds to report quarterly on how they are using the money.
More than $100 billion is targeted for infrastructure development and enhancement. Of the $100 billion, more than $48 billion is slated for transportation infrastructure improvements including more than $27 billion for highway and bridge construction, $8 billion for intercity passenger rail projects, $2 billion for commercial rail infrastructure, $750 million for public transportation system maintenance, $200 million for upgrades to air traffic control centers, facilities and equipment as well as $100 million for shipyard improvements. …