With the WidenI77.org lawsuit announced ten days ago, it's worth taking a few minutes to look back and think about that proverbial question – “How did we get here?”
The various issues the lawsuit seeks to address can be grouped into two main categories: constitutional questions around whether or not the North Carolina General Assembly delegated too much of its authority and responsibility to the NCDOT and questions about whether or not the specific setup of this project using Public Private Partnerships is in the “public interest”.
Said another way, did the General Assembly seek to avoid all of the politically uncomfortable aspects of the project by burying the details in the opaqueness of a government agency and a private enterprise?
Many people probably do not remember this, but the early HOT Lanes plan for I-77 back in 2009 was much different than what is being planned now. Back then, it was a plan to simply extend the existing HOV lanes up to Exit 28 and convert them to HOT. It would have remained free to riders with only two passengers, and it would have cost just $50-60 million in 2009 dollars. If the State had received grant funding from the Federal stimulus in 2010, commuters would very likely already be riding on those lanes by now.
The plan back then was so different from what we have on the table now that even some of the current plan’s harshest critics supported the earlier version. Cornelius Commissioner Dave Gilroy actually voted for a resolution supporting the 2010 grant request. Now, he staunchly opposes the current plan that is headed to court.
Over the course of the upcoming legal proceedings the public should learn if the courts see tolls as a form of taxation or if they are strictly user fees. We’ll also learn if handing off public infrastructure to private companies for potentially unlimited profits is something that’s considered in the “public interest” and good public policy.
One thing we do already know is that the General Assembly had the opportunity to pass a law during the last legislature that could have been used to address may or all of the legal questions the project now faces, and we also know lawmakers deliberately and repeatedly chose not to take that opportunity.
The tale of H267 in the NC House during the 2013-2014 legislature is the kind of thing that turns a lot of people off when it comes to how our government runs. However, if the WidenI77.org lawsuit is successful in stopping the HOT Lane project, H267 could also be looked at as the point which made that victory possible.
In a nutshell, here's what happened with this bill.
In March of 2013, H267 was filed with the title “An act to prohibit the imposition of tolls on an existing interstate without prior approval of the general assembly.” This bill sounds like it would require a vote by legislators on each individual toll road project. However, when asked if this bill would apply to the I77 project, one of the bill’s primary sponsors,Rep John Torbett (R-Gaston), replied at the time:
“I feel I-77 has already been determined and changing it would be a step backward. This bill should take effect on any new thoughts relative to tolling additional Interstates.”
Strike 1 against open government.
Then the legislative sausage making begins.
In May of 2013, H267 went into the house Transportation Committee co-chaired by Mecklenburg County’s own Bill Brawley (R). A bill that went into the committee requiring a vote on toll roads individually comes out as a bill about how to implement toll roads generally. The bill has a bunch of provisions on how tolls will be collected, but any reference an “act of the General Assembly” - meaning a vote – is removed.
Strike 2 against open government.
Before the bill is passed out of the House later that month, there is an attempt to re-insert the language requiring an “act of the general assembly” before the bill was sent to the Senate. Only 16 brave souls in the entire NC House voted for the amendment.
Strike 3. Open government goes down swinging.
Eighteen months later, this project is headed to court. Many if not all of the issues raised in the the WidenI77.org lawsuit could have been addressed by an “act of the the General Assembly” if H267 had passed as originally worded.
However, that would require our elected officials to fully stand behind tolling projects in public and on the record. For projects that few people want, it's much easier to let the unelected bureaucrats at NCDOT and the faceless money men at companies like Cintra take the heat.
This is your government.
As the new legislature gets back to work this week in Raleigh, let's hope they do better than this in the future.