Massachusetts Turnpike's funding of Big Dig challenged in court - "political theater"

Massachusetts Turnpike Authority's funding of free portions of the Big Dig has long been regarded as bad public policy, and as unfair. It was a dirty political deal on behalf of northern and southern constituencies on the free I-93 portion at the expense of the tolled west on I-90. Wrong yes, but illegal, unconstitutional?

More than half the toll authorities in the country would be in trouble if this was upheld. All around the country public toll authorities subsidize other activities with their tolls. Ferries and buses in San Francisco rely heavily on the tolls of the Golden Gate Bridge. In New York City MTA's Bridges and Tunnels division direct about half their toll revenues ($700m/yr) to help cover the budget deficit of New York subways, buses and commuter rail.

Port Authority New York New Jersey makes huge profits on the tolling of the George Washington Bridge, Lincoln Tunnel and their other NY-NJ toll crossings to run the PATH subway lines.

New York State Thruway uses toll surpluses to support segments of free I-90 and I-84 as well as state canals.

Delaware River Port Authority, West Virginia Parkways Authority and Rhode Island Turnpike and Bridge Authority deserve to be sued for false pretenses since the Port Authority has no port, the Parkways Authority no parkway and the RI Turnpike and Bridge Authority has no turnpike. Each of them however makes profits on tolls and, in the American tradition of toll jobbery, spreads the toll money around other activities.

West Virginia Parkways Authority has no parkway to subsidize but about three quarters of its Turnpike trips are untolled, so those motorists get free rides at the expense of those who go through four mainline toll plazas. It also subsidizes a state arts and crafts center that chronically loses money.

The Port Authority across the river from downtown Philadelphia uses profits on the Ben Franklin, the Walt Whitman and two other Delaware River toll bridges to cover losses on Patco, a passenger electric rail line from Philly into southern NJ.

The Turnpike and Bridge Authority tolls the Newport Pell Bridge and profits there subsidize free trips on the Mt Hope bridge, also maintained by the Turnpike & Bridge Authority.

Maryland's Kennedy Highway (I-95) is maintained, operated and improved from north of Baltimore to the Delaware line with tolls collected at just one point in one direction so there are huge cross-subsidies from the tollpayers to those getting on and off on either side of the toll point.

Upriver of Trenton NJ Delaware River Joint Toll Bridge Authority own, maintain and operate 20 bridges of which only 7 are tolled, the users of the other 13 getting free rides.

Garden State Parkway and the Miami Dade Expressways all have many free trips subsidized by those who pass toll points and have to pay - although Miami Dade Expressway Authority are moving to plug the leaks in their system with all-electronic highway speed tolling.

The Dulles Toll Road has actually been transferred the Metropolitan Washington Airports Authority's ownership for the express purpose of using toll revenues to fund a passenger rail line to Washington Dulles Airport.

Pennsylvania Turnpike is making payments of close to a billion dollars a year to the state DOT to help cover its costs.  The whole state of Delaware virtually lives off tolls on I-95 near the Maryland line.

The list of cross-subsidies like Mass Pike's I-90 paying for I-93 goes on and on.

It is easier to list the toll authorities that aren't cross-subsidizers - Maine Turnpike, Illinois Tollway, Ohio Turnpike, Orlando Orange County Expressway, Kansas Turnpike, The Toll Roads of southern California, Florida Turnpike, Tampa Hillsborough Expressway, Harris County Tollway Authority, and some of the smaller bridge authorities.

Outlawing cross-subsidies would be outlawing politics

Outlawing cross-subsidies is probably sound policy but it would be outlawing politics. Politicians don't have any resources of their own so they organize by taxes, appropriations and regulations to take from some to give to others. It's their whole core mission or modus operandi in the Latin phrase, not least when setting the parameters for tolls.

The cross subsidy between Massachusetts Turnpike users of I-90 west of Boston and I-93 motorists in the $10b+ Central Artery was devised some 12 years ago when control of the Big Dig project was transferred to the Turnpike. The legislature legislated a Metropolitan Highway System specifically to allow the Central Artery to be built toll free, while being paid for in considerable part - there were also large federal and state tax based grants - by borrowing secured to revenues from I-90 and the Harbor tunnels.

12 years after the Big Dig legislation that set this up superstar lawyer Jan Schlichtmann pops up and sues the Turnpike.  Or, people he organized, sue it. It's an impressive legal mobilization. Look at their website:

http://www.tollequitytrust.com/

1700 plaintiffs have been organized for a class action suit demanding $300m in compensation from the Turnpike for monies diverted from tolls to support the Big Dig. Just as the Turnpike is almost broke. Wild.

COMMENT: we think it would be marvelous if this suit won because the politicians have made an unusually bad mess in Massachusetts through the Turnpike-Big Dig cross-subsidy, but we don't see the argument for it being unconstitutional. Just what clause of what constitution does it abridge? Schlichtmann doesn't say. He claims it's illegal, but unfortunately legislation duly passed by large majorities in the state legislature and signed by the governor of the day set this whole thing up. You have to agree with the Turnpike's attorney Adam Lewis who says the Schlichtmann suit is all "political theater."

TOLLROADSnews 2009-06-10