A Virginia judge's ruling threatens to jeopardize the way Virginia is using private companies to run the Beltway Express Lanes and build similar lanes on Interstate 95.
Portsmouth Circuit Court Judge James A. Cales said in an oral ruling earlier this month that he thought Virginia's tolls on the Midtown Tunnel set as part of a $2.1 billion deal with a private company were unconstitutional, since part of the revenue was going to the firm and constituted an illegal tax. Cales also questioned Virginia's public-private partnership law, saying the General Assembly can't hand over its duty to set tolls to unelected bodies.
The deal struck for the tunnel is similar to the public-private deals the state is using for the 495 Express Lanes and the I-95 Express Lanes, in which a private company builds infrastructure in exchange for toll revenue.
"If this ruling stands and becomes the law of Virginia, it would threaten the commonwealth's ability to use public-private partnerships to construct major transportation projects," said a spokesman for Attorney General Ken Cuccinelli. "Many tolled projects could require legislative approval before proceeding, which would mean significantly increased costs and construction delays."
Cales is expected to issue a final written order Tuesday. State officials said they plan to appeal the case to the Virginia Supreme Court.
Virginia Secretary of Transportation Sean Connaughton said he would have to read the written order before commenting on how the ruling could affect public-private projects.
"Everything is going to be driven by the actual language of the judge's ruling," he said. "We feel very confident in our legal authorization to impose tolls to build and operational infrastructure."
The judge's ruling also could affect the Dulles Toll Road, since it questions tolls set by unelected bodies. The unelected Metropolitan Washington Airports Authority board sets the tolls for the Dulles Toll Road.
Allowing only the General Assembly to set tolls would mean trouble for Virginia's infrastructure, said Northern Virginia Transportation Alliance President Bob Chase.
"If the ruling was that only the General Assembly can approve tolls, if you are a private investor and you have to get your tolls approved by 140 public officials, that would be a pretty daunting situation," he said.
But Chase said he expects the state Supreme Court to strike down the ruling.