Virginia Supreme Court demolishes regional funding of transit and tolls

The Virginia Supreme Court has blocked regional transportation funding powers legislated last year saying the Northern Virginia Transportation Authority (NVTA) cannot be granted revenue raising powers reserved by the state constitution to the General Assembly or to directly elected bodies. This immediately invalidates another funding source previously relied on for the Dulles metrorail project planned in the median of the Dulles Toll Road. More ominously for the rail enthusiasts the decision casts doubt on the legality of the state's plan to transfer the Dulles Toll Road to the local Metro Airports Authority.

In the case decided today called Marshall vs NVTA the court ruled that "the General Assembly may not delegate its taxing power to a non-elected body such as NVTA."  p21

It also defined any revenue raising charge as a tax subject to constitutional bar.

The Court said: "We consistently have held that when the primary purpose of an enactment is to raise revenue, the enactment will be considered a tax, regardless of the name attached to the act. (Three former cases cited.) In accordance with this authority, we conclude that each of the regional taxes and fees provided in Chapter 896 constitutes a tax, because they all are designed to produce revenue to be used for the purpose of financing bonds and supplying revenue for transportation purposes in the Northern Virginia localities." p15

NVTA and the Kaine administration argued that there was no true delegation because the General Assembly specified the taxes and fees to be levied by the NVTA. The court said that there is a delegation of authority when another entity has the power to decide what taxes and charges will be imposed. p16

Several sections of the Virginia Constitution specify that while taxes may only be levied by the General Assembly, they may be delegated to counties, towns and regional government - to other popularly elected bodies.

Here is the text of the ruling

http://www.courts.state.va.us/opinions/opnscvwp/1071959.pdf

The decision cuts off some of the proposed local funding for Dulles Rail via NVTA.

Toll concession to Airports Authority also unconstitutional

More significantly Marshall vs NVTA suggests opponents of transferring the Dulles Toll Road are likely to prevail in another court case scheduled to be heard in April. Gray vs Secretary of Transportation (071220) challenges a non-competed 50 year toll concession granted by the state to the Metropolitan Washington Airports Authority, a joint powers agency of the US, Virginia, Maryland and the District of Columbia.  The toll concession contract is also conditional on federal funding of the rail project to the tune of some $1.4b.

But with the Virginia Supreme Court in the Marshall case deciding that that revenue raising decisions cannot constitutionally be delegated to the NVTA there seems little chance the transfer of toll setting powers to MWAA will be upheld.

Unlike with most concessions the MWAA would have unlimited powers to raise tolls to support financing of the Dulles commuter rail project. NVTA's board at least comprises elected officials of Virginia. Representatives from the US Government, Maryland and DC form a majority on the MWAA. It seems most unlikely the state can cede toll setting powers to such a body as MWAA under this reading of the Virginia constitution.

In another move Virginia legislators put a requirement in a budget bill requiring the Dulles Rail project to be competitively rebid That would scrap an old negotiated contract with Bechtel and Washington Group which has escalated enormously in price.

USDOT has criticized the "limited" competition involved in the Bechtel-WGI deal.

On the NVTA see http://www.thenovaauthority.org/

TOLLROADSnews 2008-02-29