Former Virginia Gov. Tim Kaine acted within his authority when he decided in 2006 to transfer the Dulles Toll Road and management of the Dulles rail project to the Metropolitan Washington Airports Authority (MWAA), Attorney General Kenneth T. Cuccinelli II said Tuesday.
Mr. Cuccinelli, responding to an inquiry from state Delegate Robert G. Marshall, wrote in an official advisory opinion that, while there is no "express authority" allowing the governor to transfer administration of the toll road, various statutes give the executive branch broad flexibility to provide for public transportation.
The opinion, dated May 25 and released Tuesday, marks a politically sensitive development involving a white-hot issue to three of the candidates running for the U.S. Senate seat to be vacated by retiring Democratic Sen. Jim Webb, not to mention Mr. Cuccinelli — who plans to run for governor in 2013.
"I don't like the policy, but we've researched the law pretty thoroughly," Mr. Cuccinelli said. "My priority in these opinions is to get the law right."
In 2006, Mr. Kaine authorized a transfer of control of the toll road and management of the Dulles rail project to the airports authority, governed by a 13-member board of directors appointed from jurisdictions across the region.
The reasoning, at the time, was that the authority would provide for a better-managed, more cost-effective project, insulating the roughly $6 billion effort from political infighting. But since then, it has undergone a series of stops, starts and cost overruns, at several points teetering on the edge of collapse. The authority drew ire last year when it voted to build a more expensive underground station at Dulles before reversing itself amid outcry from state, local and federal officials. The move would have added an extra $300 million onto Phase 2 of the project, now estimated to cost between $2.7 billion and $2.8 billion.
More recently, an interim report from the U.S. Department of Transportation's inspector general documented an array of shortcomings at MWAA, including ethically questionable contracting practices and lavish expenses, such as a $9,200 plane ticket to Prague.
The developments left Mr. Kaine, Virginia's Democratic candidate for Senate this year, vulnerable to charges he mishandled the management of one of the largest public works projects in the nation.
Moreover, Virginia Republicans consistently point out that the state had multiple valid, unsolicited offers to transfer the authority of the road to other bodies through the state's Public-Private Transportation Act. Two of the offers would have provided more than $1 billion in cash for improvements on the Capital Beltway and Interstate 66.
Mr. Kaine's team is quick to point out that he made his decision with the support of a bipartisan group of state lawmakers that included then-Sen. George Allen, the GOP front-runner seeking the Senate seat this year.
But Mr. Marshall, Prince William Republican, who is running against Mr. Allen for the Republican Senate nomination, has consistently questioned the constitutionality of Mr. Kaine's move, likening MWAA to an unelected taxing authority because of its power to set toll rates on the Dulles Toll Road. His belief that Mr. Kaine should have consulted the General Assembly led him to seek the attorney general's opinion.
"Unanswered is the question, 'If the governor can give away the toll road, can he give away the General Assembly building?' " he said.
Mr. Cuccinelli, a Republican, pointed to a 2008 circuit court ruling in which plaintiffs unsuccessfully argued that the state could not transfer Dulles Toll Road assets to MWAA without the General Assembly's approval.
The opinion marks an ironclad distinction between the attorney general's personal views — he reiterated Tuesday that he opposed Mr. Kaine's move in 2006 — and his role as the state's chief lawyer.
"It's not the first time I've had to put out an opinion I didn't like," Mr. Cuccinelli said, "and I imagine it won't be the last time."
The attorney general added that he hopes the Loudoun County Board of Supervisors votes to opt out of funding the Dulles project before a July 4 deadline.
"My underlying problem is, the cost of the project relative to what you get is not worth it — period," he said.
Mr. Marshall, meanwhile, said the opinion itself wasn't the final say, as it was based on a case remanded by the state Supreme Court, after which the plaintiffs ran out of money.
"This is kind of like a pendulum opinion — the outcome can swing in a different direction," Mr. Marshall said. "It's a provisional opinion based on an as-yet-undefined final set of facts and adjudication."
When read Mr. Marshall's quote, Mr. Cuccinelli laughed.
"That's every opinion," he said. "The courts aren't bound by [the] opinions, but they give them weight. Is it possible we get one wrong? Sure it is. But we haven't gotten one wrong yet in 2½ years."
Mr. Cuccinelli also said it would be difficult, in theory, for the state to wrest control of the project from the authority, pointing out that MWAA is an interstate compact not subject to state or federal Freedom of Information Act (FOIA) laws.
"Even if we could do that, we'd have to assume all the debt and responsibilities — I can't possibly contemplate or imagine us doing that kind of thing," he said. "Once you give over a piece of property like that, it's pretty hard to get it back. So long as they're performing their end of the deal, we don't get an opportunity to go in and rescind it."
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