Cuccinelli against Dulles rail, but duty calls on him to defend funding

Virginia Attorney General Kenneth T. Cuccinelli II could end up arguing this week to effectively uphold a project the Republican gubernatorial candidate has opposed since his days as a state senator.

Fairfax County says an unfavorable ruling by the state Supreme Court in a case over a construction project in Hampton Roads could completely undermine the use of bonds and Dulles Toll Road revenues — the key funding mechanism for the $6 billion Rail-to-Dulles project.

Mr. Cuccinelli, a vociferous opponent of the project that will eventually extend Metro past Washington Dulles International Airport and into Loudoun County, is defending the legality of tolls that are to fund the new $2 billion Downtown Tunnel/Midtown Tunnel/MLK Expressway Extension Project in Hampton Roads as user fees — not unconstitutional taxes, as a circuit court judge ruled.

The case set for arguments Wednesday originated from a lawsuit challenging the constitutionality of the tolls imposed as part of the public-private deal to construct a new tunnel, renovate an existing one and extend the Martin Luther King Jr. Expressway in Portsmouth. Circuit Court Judge James A. Cales Jr. ruled the tolls amount to taxes the state’s transportation department does not have the power to effect.

State and local officials are warning that the legitimacy of Virginia’s broader Public-Private Transportation Act, its ability to pay off already-issued bonds and the Dulles Toll Road revenues’ ability to finance the Silver Line extension could be put in jeopardy if the ruling isn’t reversed.

All told, about 75 percent of the funding for Phase 2 of the project, which will run 23 miles from Falls Church to Loudoun County, is to be paid using revenues from the Dulles Toll Road. According to the funding scheme, Fairfax will cover 16.1 percent, Loudoun County will pay 4.8 percent, and the Metropolitan Washington Airports Authority (MWAA), which is overseeing the project, is on the hook for 4.1 percent. The project cost will also be mitigated by contributions from the federal government and the state.

“Accordingly, to lose the ability to use Toll Road revenues to pay a portion of the Total Capital Cost not only would cripple the ability to complete construction of Dulles Corridor Metrorail but also could call into question the ability to repay outstanding debt secured by such revenues that essentially has been expended on construction to date,” lawyers for Fairfax County said in a friend-of-the-court brief.

Area commuters will benefit from the project regardless of whether they use the rail line or the toll road because the line will keep more cars off the road, the brief adds.

In 2007, residents sued over the state’s transferring the Toll Road to the airports authority, arguing that using toll roads to finance the rail amounted to unconstitutional taxation without representation. The suit was thrown out in 2008, and other challenges resulted in rulings that effectively defined tolls as user fees and not taxes.

But in a brief last month, opponents of the project in Hampton Roads argued that those decisions overlook Virginia code language that says Dulles Toll Road revenues can be spent on transportation projects and programs that do not run through the authority’s right of way.

“The tolling regime at issue here marks a radical departure from the tolling that funded many transportation facilities in Virginia during the middle decades of the 20th century,” they argued. “Virginians have always been jealous of the power they give to their government. There are certain powers vested in the legislature — especially the power to take money — which it may not delegate to unelected persons, regardless of how circumscribed the delegation is.”

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