RICHMOND, Va. (WAVY) - The battle over tolls for the Downtown and Midtown tunnels hits the road, and heads to Richmond on Wednesday. Both sides of the debate will take their legal ammunition to the highest court in Virginia.
The Virginia State Supreme Court will finally decide whether the tunnel tolls are constitutional – a legal battle that has become divisive in Hampton Roads and will impact many. WAVY.com spoke with a lawyer who will make or break the important case – anti-toll attorney Patrick McSweeney.
McSweeney will argue that the proposed tunnel tolls are unconstitutional on Wednesday. If his argument wins, he says the state will have to come up with the money to fund the Elizabeth River Crossings rehabilitation project of the tunnels, instead of it being funded by tolls collection.
"I think that is our strongest point," McSweeney told WAVY.com. "You can't give VDOT power to establish the rate of return for a private company.”
Since 1903, the State Corporation Commission (SCC) has regulated public corporations. But when the General Assembly approved the Public-Private Transportation Act of 1995, the SCC was excluded as a check and balance against private profit.
"They struck that provision that the SCC had to set the rate of return. What you have done now is give VDOT and an un-elected body -- not the Corporation Commission -- the power to go to a room, close the door, and give them the power to negotiate the rate of return. That cannot be constitutional," McSweeney said.
Neither VDOT nor its private partner Elizabeth River Crossings would grant an on-camera interview, but WAVY.com did read court briefs that describe their position in the debate.
In court briefs, VDOT and ERC argue the Virginia Constitution gives "the SCC regulatory control over the rates only of railroad, telephone, gas, and electric companies."
McSweeney disagrees, arguing the General Assembly assigns responsibility to the SCC for all Public Service Corporations, which this is.
VDOT and ERC think "tolls are not taxes when they are used to finance an integrated network of travel crossings," which the tunnels are.
McSweeney said he’s expecting VDOT and ERC to argue the economic and political impact, that they have already spent hundreds of millions of dollars on the rehabilitation project. They have already put up the cameras, the toll gantry, and the cost in terminating the contract for convenience could be in excess of $400 million dollars.
"The other side’s appeal is to economics and the practical consequences and the politics, and I think it demonstrates a weakness in their legal position,” said McSweeney. “But I hope the Court will do what it has done in the past, and disregard those arguments, and focus on what is constitutional.”
Economics and politics being a “weak” argument is exactly the reason McSweeney won’t use a populist argument in court -- that the impact of tolls for Portsmouth and Norfolk residents would be devastating.
"We can't be two faced. We can't say you can't argue economics, and social political policy, but we can,” he said.
So, what will happen if the high court agrees the contract and the tolls are unconstitutional?
"There's been talk the General Assembly can simply stamp it, and ratify the deal,” McSweeney said.
Elected members of the General Assembly have the ability to “rubber stamp” the project, making the tolls legal.
"I think we are getting way ahead of this project, but that is a possible scenario, obviously,” said Virginia Beach State Senator Frank Wagner.
Senator Wagner is Chairman of the Transportation Sub-Committee on the Finance Committee, and if McSweeney wins, Wagner will be the point man to make things right.
"If they rule against the State, then the Court will tell you what is wrong, and that will dictate the type of legislation we consider,” Wagner said.
Wagner, who had nothing to do with the current contract, thinks if the State loses then renegotiation of the contract is inevitable, specifically limiting the amount of escalating tolls for 58 years.
"I think if you run the tolls out with what is currently being proposed, then you will find a lot of very high toll rates," Wagner said.
McSweeney thinks the Virginia State Supreme Court will uphold what has already been decided in the lower court.
“It's not a question of politics. It's not a question of a good project or a bad project. It is a question of who has the constitutional authority, and who is politically accountable,” he said.
In the event that McSweeney wins the case, it will call into question all transportation projects that come under the Public-Private Transportation Act of 1995. What is unconstitutional here will be ruled unconstitutional everywhere in Virginia.
McSweeney is not expecting a final decision on Wednesday, but the Court will issue a final decision by November.
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