Lawsuit Attempts to Block Dulles Toll Road Transfer

Two Fairfax County men have filed a lawsuit in Richmond Circuit Court Thursday to block the transfer of authority for the Dulles Toll Road to the Metropolitan Washington Airports Authority. The transfer of state assets and contracting out of “the power to tax” to the non-state entity cannot take place without approval of the General Assembly, contend Patrick R. Gray and James W. Nagle, who both identify themselves as “frequent users” of the toll road.

Read the lawsuit here.

Transfer of the toll road to the MWAA, which governs Washington Dulles International Airport, is critical to Kaine administration plans for constructing the “Rail to Dulles” extension of a heavy rail line from the Washington Metro through Tysons Corner and Dulles Airport. The MWAA would oversee the project and would use revenues generated by the toll road as the major source of funding.

Under the agreement the Kaine administation negotiated with the MWAA, the airport authority would have exclusive say-so over future rate increases for the toll road. Further, states the lawsuit:

MWAA places a higher priority on constructing the Dulles Corridor Metrorail Project than on maintaining, improving and operating the Dulles Toll Road. … Because the final design and cost of construction of the Dulles Corridor Metrorail Project have not been determined, the Plaintiffs are subject to further increases in user charges for using the Dulles Toll Road to fund the increased state share of funding for the Dulles Corridor Metrorail project.

The MWAA agreement with the Kaine administration is predicated on the assumption that “the use of value engineering, competitive construction bidding and management” will migitate the risk of being forced to increase tolls, the lawsuit states. But, it goes on, a “recent history of management failures,” in particular, inadequate efforts to obtain competitive bidding on 15 of 35 contracts reviewed by the General Accounting Office, call that assumption into question.

The state Constitution, continue the plaintiffs, requires “the affirmative vote of each house of the General Assembly” to transfer any assets of the Commonwealth to any persons or entities outside the commonwealth. The agreement negotiated between MWAA and the Kaine administration deprives the plaintiffs of the right to “petition their legislators to prevent, or minimize the effect of, a transfer.”

Richmond attorney Patrick McSweeney represented the plaintiffs in the suit. Now we know what he’s been doing since he stopped writing the columns we published in Bacon’s Rebellion!

(Hat tip to Phil Rodokanakis for forwarding a copy of the lawsuit to me.)

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11 responses to “Lawsuit Attempts to Block Dulles Toll Road Transfer”

  1. Reid Greenmun Avatar
    Reid Greenmun

    I love PatMcSweeney!

    Like Del. Leo Wardrup – Pat rocks too!!

    Pat has been very helpful to me over the years – educating me on the TRUTH of the complex mess we commonly call “the state code”.

    You go Pat! Take it to them!

    I am so tired of the games played to usurb the power of the voters!

    THIS news makes my morning!!! 😎

  2. Larry Gross Avatar
    Larry Gross

    It’s really a pretty important issue.

    I don’t think there will be a stampede of suitors for ordinary toll roads unless they are cash cows like Dulles but toll roads that utilize congestion pricing will likely generate net revenues.

    Who will get them – say in NoVa?

    VDOT or NVTA or …. ???

    how about in HR? the MPO?

  3. Anonymous Avatar

    Thank goodness this lawsuit was filed? Dulles rail must be one of the worst transportation projects in the country, and the transfer of the toll raod to pay for it an even dumber idea. The “process” used to make the transfer really shows how far Virginia has diverged from openness and rationality. We are in the era of secret, back-room deals that benefit a very few (like West Group) at the expense of everyone else. This is unconscionable and must stop. Thank you, Pat McSweeney!!!!

  4. Phil Rodokanakis Avatar
    Phil Rodokanakis

    Pat has been working on this lawsuit for some time now. Hopefully, there will be some legislation forthcoming from the House of Delegates that will also seek to address the issue of transferring state assets.

    There are a host of other issues that this lawsuit does not address. There are legal questions as to the Metro Washington’s Airport Authority’s (MWAA), a quasi-governmental entity created by the Federal Government, authority to undertake any projects not directly related to airport operations.

    Furthermore, the lease of the Toll Road is between the Federal Government and the State of Virginia. This raises all sorts of legal questions as to whether the state even has the authority to transfer the Toll Road to MWAA, under the terms of the federal lease.

    These and other looming legal questions have never been answered. What’s mind-boggling about this fiasco is that the so-called investigative reporters have been asleep at the wheel on this issue. They should be the ones raising these sorts of questions.

    The public should not have to depend on private individuals to finance lawsuits challenging the illegal actions of the state and local governments. But I guess I’m dreaming again…

    Best Regards, Phil

  5. Anonymous Avatar

    The suit raises important issues that should be decided.

    I understand that tomorrow’s WaPo (1/13) will carry a story on the lawsuit. I wonder how the issues will be presented there.

    What amazed me by the complaint was the negative GAO report on the MWAA. I had the impression that the MWAA was quite well managed. That certainly has been the impression being given by Silver Line supporters too. But when financial windfalls for a few big Tysons Corner landowners, what’s shading the truth here and there?

    More evidence that we’ve given our state more credit than it deserves. The more that comes out on the big issues, the more it becomes clear that Virginia is just a “good old boy” state and that the differences between Rs and Ds is generally non-existent. Therea are, of course, some exceptions in both parties.

  6. Ray Hyde Avatar

    BARF, GAG, Yecch.

    What ever happened to pay for what you get? This toll road nonsense is a good example of what will turn out to be wrong with tolls.

  7. Larry Gross Avatar
    Larry Gross

    I concur completely.

    I still believe that electronic tolling and congestion pricing are THE way to go in terms of a sustainable source of revenues that are not generalized taxes.

    However, as the Coalition for Smarter Growth and the Southern Environmental Law Center have pointed out and expressed concern – there are huge and wideranging issues that can be essentially distilled down to accountability, transparency and integrity in government.

    What TOLL roads will do – is generate LOTS of money – which is a recipe for major mischief if those monies are turned over to unelected groups to use them in ways that the public cannot see.

    It’s really, really, really BAD POLICY.

    and .. if it is not addressed – I predict – that the idea of Tolls Roads will be – rejected by voters.

    I hate to say it but this really shows how our elected leaders – right on up to the Governors office – actually think about accountability.

    They talk the talk but when it comes down to the walk – almost everytime they pick the slimy path rather than the high road.

    This issue is .. about whether or not Virginia wants Good Government – honesty and integrity.

  8. Larry Gross Avatar
    Larry Gross

    There are two distinct issues:

    1. – what entities in Va can operate toll roads and what governance procedures will be in place with respect to how proceeds are spent.

    2. – What transportation projects can be beneficiaries of toll revenues beyond the immediate facility that is tolled.

    This is not an issue that we should NOT have a public discussion and debate about.

    The Smart Growth folks are pleased that the proceeds of this project will be spent for Metro.

    How will they feel .. if the same “behind closed doors” process will be used – in the future for other tolled roads in NoVa – for ALL of that money to be given to VDOT or NVTA to build ONLY more roads?

    So – it’s wrong to NOT get the issue itself on the table for debate – and in a public process – arrive at a consensus decision.

    If we don’t do this – we’re going to end up with even worse than what we have right now with regard to our transportation policies and taxpayer funds.

    out of the frying pan and into the fire…

  9. Anonymous Avatar

    The problem isn’t with toll roads. The problems is that Virginia’s entire governmental system is still based on feudalism, updated to the “good old boy” era. Too many decisions are made by appointed commissions and boards that have no accountability to the average citizen.

    It is clear that we, and most of the rest of the nation, will see more private-public partnerships in many areas of the economy. Many of these partnerships will operate in areas where the government has generally been the only player. Private-public partnerships can be very good things and can provide benefits to both the private investors and the community at large. But they can also be conduits to corruption. We need to change the “good old boy” model of government to one that provides for better oversight and more openness in decision-making. I’m not ready to endorse public elections for each and every board and commission — that could result in balkanization of government and many petty kings and queens. But neither is the current situation acceptable. If I were to ask my elected officials from Gerry Connolly to Tim Kaine to George Bush who was responsible for the MWAA, I suspect I hear quite a bit of coughing, mumbling and finger-pointing. But the bottom line would probably be “no one.” That’s wrong. Voters need more direct control over entities that expend taxes or fees paid by residents.

  10. Larry Gross Avatar
    Larry Gross

    Here’s a news article those of us who appreciate cost effectiveness, efficiency and transparency… and the subject of TOLL Roads and the proceeds from them:

    Auditor says WV Turnpike investing wrongly & illegally

    The West Virginia turnpike authority should stop investing in lossmaking and illegal projects, according to a report from the Office of Legislative Auditor. The Turnpike’s subsidies for Tamarack, an arts and craft center come in for the strongest criticism in the report which also criticizes other activities supposedly in support of “economic development” and “tourism” – which also involve expenditures of revenues from the Turnpike.”

    more at:

    undirected funds – ARE …. SLUSH FUNDS… looking for … trouble…

  11. Anonymous Avatar

    What do people think about the fact that the majority of seats on the MWAA board are appointed by jurisdictions other than Virginia? My understanding is that the Governor of Virginia appoints 5 of the 13 MWAA members, so he doesn’t appoint 8 members.

    I have trouble understanding how the five Virginia members are accountable to me and other Virginians. How are the non-Virginians accountable to Virginians?

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