Populist anti-toll bill filed in US Senate by Sen KB Hutchinson - ANALYSIS

September 8, 2007

US Senator from Texas Kay Bailey Hutchinson (Repub) has filed a bill S2109 (download text here) which purports to prohibit tolls on existing untolled interstates. The bill is so poorly drafted it is difficult to know whether to take it seriously.

Section 1 is titled "Prohibition on imposition and collection of tolls on certain highways constructed (NOTE: past tense) using federal funds". Then under definitions "The term 'federal highway facility' means any highway, bridge or tunnel on the Interstate System that is (NOTE: present tense) constructed using federal funds."

The garbled tenses make it unclear whether S2109 means to ban tolls on interstates built in the past with federal funds (the title's past tense) or to prevent tolling of highways being built now with some federal funds (the definition's present tense).

The present tense used in that definition in the Hutchinson bill seems to emasculate it. It could be interpreted to exempt all the existing facilities already constructed from a toll ban.

The bill's use of the term "federal highway facility" for interstates is very odd too.

No "interstate" highway facility we can think of is owned or operated by the federal government. The interstate highways are all state highway facilities because states hold legal title to them and operate them, even though most of the untolled interstates were built with federal aid as well as state funds, and had to obtain federal permits.

Most true "federal highway facilities" are 2-lane roads within federal property such as national parks and US military bases. We can't think of any of these federal highway facilities that are interstates. The Baltimore Washington Parkway owned and operated by the National Park Service is one federal highway facility that approaches interstate standards - 2+2 lanes, limited access and grade separations. But it is not designated an interstate! It is MD295. The same is true of the Dulles Airport Access Road. It too is not an Interstate, but part of a state route - VA267.

The Hutchinson bill says under a heading "Prohibition" that on interstates misdescribed as federal highway facilities the secretary of transportation shall not permit tolls on roads "in existence" on the date of enactment and which have no tolls on them on the date of the enactment.

When a road comes into "existence" is left to the imagination or to litigation - when it is studied, planned, permitted, given a designation, under construction, open to traffic?


Then there are the Hutchinson exemptions. Texan politicians are adept at striking a pose with a prohibition then throwing in a heap of obscure exemptions. Exempt from the tolling prohibition in S2109 are interstates on which tolls are being collected on the enactment date under "a tolling provision." The "tolling provision" definition lists some of the various existing programs for tolling in federal law.

This is a mess too, maybe deliberately so.

The first exemption refers to section 129 of title 23USC which is virtually the whole of federal law on transportation! Does she mean that?

Then several but not all of the federal tolling programs are listed as exempt.

Current federal law allows a lot of tolling

Under current law (23 USC Section 129) the Feds can financially support many types of toll activities:

(1) initial construction of non-Interstate tollroads, bridges, and tunnels

(2) reconstruction, resurfacing, restoring, and rehabilitation work on any existing toll facility

(3) reconstruction or replacement of free bridges or tunnels and conversion to tolling

(4) reconstruction of a free non-Interstate federal-aid highway (except on the Interstate System) and conversion to a toll facility

(5) feasibility studies on toll financing of these facilities

(6) TIFIA loan funds

(7) private activity bonds giving approved privately financed (PPP) toll projects tax exemption

Most toll facilities do not make use of this funding, but many do.

When Federal-aid funds are used for construction of or improvements to a toll facility or if a free highway, bridge or tunnel previously constructed with Federal-aid funds is to be converted to a toll facility, federal law requires a toll agreement between the state and the feds limiting the use of revenues to operations and upkeep, reasonable return to service capital (Section 129(a)(3) must be executed.) There are dozens of these agreements and no limit to their number.

Also federal law supports several programs for tolls on roads including interstates:

(1) value pricing or variable toll rates or congestion pricing on interstates and non-interstates alike has been supported by the US Government under all the five yearly laws passed since ISTEA in 1991 and there are scores of these in operation, or being studied and planned

(2) HOV to HOT lane conversions with tolls

(3) Express Lanes Demonstration projects [Section 1604(b)] proides for up to 15 projects for tolling express lanes with tolling varied in order to manage traffic and reduce congestion

(4) Interstate System Construction Toll Pilot Program [Sec 1604(c)] provides for up to three interstates to be tolled to fund new capacity

(5) Grants under the Urban Partnerships program all of which are required to have tolling to manage traffic and reduce congestion

(6) toll express lanes that provide for free flowing bus transit are eligible for Federal Transit Administration grants

see http://ops.fhwa.dot.gov/tolling_pricing/announcement/tolling_announcement.htm

A freeze on all future tolling on interstates?

Hutchinson's bill might be interpreted to outlaw any further use of these toll programs if taken literally, though it doesn't specifically repeal any of them! It attempts to freeze all these programs when tolls are not actually being collected on the date of enactment.

What possible logic is there in enacting a ban on tolling existing interstates when other federally supported roads remain free to toll?

In the Dallas area that would mean for example that toll lanes would not be allowed on the major highway to the northwest out of Dallas I-35E, but they would be allowed on another federally supported highway going to the northeast (US75). The only difference is that one has an interstate designation, while the other has a US-route designation. They are both federally supported expressways.

Federal Hutchlaw would ban toll lanes on one, allow them on the other.

Ban sought on tolling bought back interstates

S2109 also adds a prohibition on tolls on interstates bought back by states. But if a state repaid all past federal aid, and the road was state owned, state operated and state maintained, how would federal law have any standing to dictate how it was to be funded?

Hutchinson's unreal rationale

"My bill will protect drivers from paying tolls on roads that were already paid for by taxpayers," Hutchinson says in a press statement.

But a road is never "paid for."

Roads go on costing into the future because:
- they deteriorate under traffic and weather
- they need to be maintained
- they need to be rebuilt
- they need to be added to.

"Paid for roads" (PFRs) is a nonsense. PFRs exist only in an uniformed imagination, in catchcries and slick slogans, in mindless one-liners. We have to go on paying for roads, and the costs of upkeep and reconstruction are destined to dwarf what was originally spent on them.

Backward perspective

Taxes may have funded the road as it exists, but focusing on that is a backward academic perspective. It is history, not policy. Policy needs to have a forward perspective. The present and future challenge is how best to finance upkeep, finance the periodic reconstruction, and finance improvements.

Financing mechanisms are not just about raising money either. They are about balancing supply and demand with a price mechanism (or a zero price) and about assessing where money should be allocated.

Past financing is irrelevant since the issue is how best to finance for the future.

Another Hutchinson statement was: "I will work with members of the Texas Congressional delegation and the state legislature to ensure that Texans are never asked to pay a toll on an existing interstate highway."

But what is an existing interstate highway? If much of the existing pavement and bridging is torn out, and new and more lanes built, is it still the "existing interstate highway"? Hardly, except perhaps for the signage. In the reality of what the road is physically, and in the service it offers motorists it is a "new interstate highway," not an existing one.

Does Hutchinson seriously want the federal government to bar tolling even on additional lanes in Texas interstates? That would cut the heart out of the 2030 plans of the North Central Texas Council of Governments for the Dallas Ft Worth metro area and similar plans in the Houston area. Most of the new capacity planned is to be tolled. (see map nearby)

COMMENT: The senator's bill is full of what she's against - it offers no alternative to tolls for funding or managing traffic better than the gridlocked and unfunded "free" interstates.

Politicians often file silly bills in order to gain plaudits from a noisy constituency without wanting them to become law. Hopefully this is just one of those posturing bills.

Reassuring is a reminder in Hutchinson's accompanying statement that she attempted to insert a measure just like this in the 2005 highway bill but it failed. But this shoddy, pandering bill is nevertheless irresponsible mischief. It promotes populist fantasies and would put new obstacles in the way of reform of highway financing.

Another bill coming

Congressmen Len Boswell (Dem Iowa) and Terry Lee (Repub Nebraska) are are seeking support for a bill in the House of Representatives called the Toll Road Prohibition Act of 2007. Despite the sweeping title its actual scope would be quite limited according to a "Dear Colleague" letter. The bill would require federal funds spent on an interstate highway to be repaid to the US Government before the road could be concessioned to private investors.

The letter says: "The American people should not be required to pay for the same highway twice - once through their tax dollars and again through new state tolls on federal interstate highways."

It also questions tolling untolled interstates saying "there is very litle available research demonstrating the safety, congestion, environmental, and economic effects, which could be substantial."

COMMENT: Toll roads are much safer than free roads based on fatalities per hundred million vehicle miles traveled - probably because they are better maintained and policed. They are also less congested, because they have their own dedicated staffs and their own revenue stream for improvements. Variable toll rates can also be used to prevent breakdown in flow. Tolling the interstates should therefore lead to  substantial  benefits.

see copy of letter here

TOLLROADSnews 2007-09-07 ADDITIONS 2007-09-08

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