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Toll road lawsuit may threaten rail
An upcoming lawsuit is the latest potential threat to the survival of the Dulles rail project.The suit charges that the state's agreement to transfer ownership of the Dulles Toll Road to the Metropolitan Washington Airports Authority was unconstitutional because Gov. Tim Kaine (D) acted without the authority of the Virginia General Assembly.
If the suit succeeds, it would affect one of the primary sources of funding for the Dulles rail extension, possibly threatening, at a minimum, the second half of the rail project.
While the state had always intended to use toll road revenues to pay its share of the project cost, the ownership transfer allows the airports authority to pay for the second half of the project with bonds based on future toll road revenues, rather than going through the time-consuming federal funding process a second time.
The suit was filed against the state months ago by two frequent users of the Dulles Toll Road. A Richmond Circuit Court denied their right to sue, citing “sovereign immunity” -- the position that the state cannot be sued without its consent. The plaintiffs appealed, and the Virginia Supreme Court overturned that decision on Friday, paving the way for the lawsuit to proceed in the lower court.
“The whole point of our suit is to restrain the governor. You can't have the fox in charge of the henhouse,” said Patrick McSweeney, the attorney for the plaintiffs who also participated in the lawsuit that struck down the taxing authority of the Northern Virginia Transportation Authority earlier this year.
When the FTA initially balked at approving the rail project for final design in early 2008, the unpredictability of the hundreds of millions of dollars to come from the future toll road users was among the concerns identified by FTA administrator James Simpson.
“We had too many questions about the toll road revenue and the capacity of the toll road,” Simpson said at the time.
While the FTA has since become more accepting of using the toll road to fund rail, U.S. Department of Transportation Secretary Mary Peters has made it clear that funding problems could still threaten the project.
“We're certainly going to be looking at the court decision. ... We'll have to see what implications this latest decision has for the project,” said airports authority spokeswoman Tara Hamilton.
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