Virginia could face a liability of almost $3.5 billion if a recent court ruling is upheld and invalidates all state contracts for privately operated toll facilities on public highways, Transportation Secretary Sean T. Connaughton warned lawmakers today.
While the focus was on a Hampton Roads river crossing project that the state is defending in court, the fallout from the legal battle could include an estimated $502 million for Pocahontas 895, the toll parkway between Henrico and Chesterfield counties that was the first project approved under the Public-Private Transportation Act, and $71 million for the U.S. 460 expressway approved last year between Prince George County and Suffolk.
The ramifications potentially also could ensnare other toll facilities that were not developed under the 1995 law, including the ability of the Richmond Metropolitan Authority to raise tolls without specific legislative approval on the Downtown Expressway, Powhite Parkway and Boulevard Bridge, Connaughton told the House Appropriations Committee today.
At the heart of the legal concern is the ruling by Portsmouth Circuit Court Judge James A. Cales Jr. last month that the public-private partnership law unconstitutionally delegated legislative authority to private entities to raise tolls that he said are, in effect, taxes.
"This is not consistent with almost 240 years of building toll facilities in the commonwealth of Virginia," Connaughton told the committee.
The state is appealing the decision.
The ruling was directed at a $2.1 billion project that the state contracted with Elizabeth River Crossings to build a second Midtown Tunnel between Portsmouth and Norfolk, upgrade the existing tunnel and both tubes of the Downtown Tunnel, and build an extension of the Martin Luther King Expressway in Portsmouth -- relying on tolls that would be generated from traffic at both tunnels to pay for the work.
Ending the 58-year concession with the company would cost Virginia an estimated $706 million -- the biggest chunk of $3.44 billion in losses and higher state costs from terminating five public-private contracts. The other projects potentially affected are toll express lanes being built on Interstate 95 in Northern Virginia ($560 million), existing toll lanes on Interstate 495 in Northern Virginia ($113 million); Pocahontas 895 ($502 million) and U.S. 460 ($71 million).