Dulles Toll Road transfer to Airports Authority doubtful - supreme court decision

June 6, 2008

The proposed transfer of the Dulles Toll Road (DTR) from the control of Virginia DOT to the Metropolitan Washington Airports Authority (MWAA) is in doubt following a court victory by opponents. The state supreme court in Richmond today in a 19 page opinion overturned a lower court ruling that the transfer was protected from challenge by a doctrine of sovereign immunity.

The supreme court decision allows opponents of the transfer of the tollroad to the airport authority to continue with their case on substance.

Transfer of control of the DTR was designed to generate a revenue stream for servicing the debt needed to finance construction of a financially non-viable passenger rail line in the median of the toll road, and in a second stage, of the Dulles Greenway.

The Virginia constitution has already been held to invalidate delegation of tax and pricing powers to regional transportation bodies on the grounds that their officers are not directly elected by Virginia citizens. The Northern Virginia Transportation Authority is now having to refund charges it levied illegally.

The Metropolitan Washington Airports Authority isn't even a Virginia agency - Maryland, DC and US officials have a majority - let alone a Virginia agency with the required elected officials, so it has no power under the constitution to set toll rates. That at any rate is what will be argued in court by opponents of the transfer now that sovereign immunity has been knocked down.

Plaintiffs Patrick Gray and James Nagle maintain that an executive branch agency has no constitutional authority to delegate toll setting powers to the Airports Authority. (CORRECTION 2008-06-10 17:00) This has been done in a 50 year public-public toll concession between VDOT and MWAA, and without any legislative mandate.

If as seems likely, the MWAA is denied control of the tollroad's pricing by the courts then VDOT would have to retain control and pledge money to the train line itself - difficult because politicians in the rest of the state always oppose large commitments to one region. Or it could go back to a private sector lease procurement that was started in 2004 but was abandoned in March 2006 for the problematic deal with MWAA.

Under a private toll concession toll setting powers remain with the state (VDOT) in the form of a formula for toll caps built into the concession contract. The DTR public-public concession between VDOT and MWAA seems to have crossed a constitutional line by granting full autonomy to MWAA on toll rate setting.

The case is being argued by lawyer Patrick McSweeney of McSweeney Crump Childress & Temple of Ricmond VA. McSweeney, something of a star in Virginia law, also won the court cases against NVTA.

TOLLROADSnews 2008-06-06 CLARIFICATION 2008-06-10 17:00

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