Va. High Court Revives Dulles Toll Road Suit

Gov. Kaine is confident his plan will prevail.
Gov. Kaine is confident his plan will prevail. (AP)
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By Amy Gardner
Washington Post Staff Writer
Saturday, June 7, 2008

A proposed extension of Metrorail to Dulles International Airport, already on precarious footing, was dealt another setback yesterday when the Virginia Supreme Court allowed a lawsuit to go forward challenging plans to use Dulles Toll Road receipts to fund construction.

The decision casts doubt on one of the most crucial sources of money to help pay for the 23-mile Dulles rail line. Without that money, the Federal Transit Administration, which has been scrutinizing the project's financing, might pull its approval of the extension. Virginia is counting on the FTA to pay $900 million of the $5.2 billion cost.

"I would just like for them to take the constitution seriously," said lawyer Patrick M. McSweeney, a former chairman of the state Republican Party, who represented the plaintiffs. "In recent years, they [state officials] treat it as if it is an empty document that doesn't really have to be given much consideration. And they don't consider what the people intended when they ratified it. That has been a mistake."

At issue is whether Gov. Timothy M. Kaine (D) violated the constitution when he announced plans -- without General Assembly action -- to transfer the state-owned Dulles Toll Road to the Metropolitan Washington Airports Authority, which intends to raise tolls and use the proceeds toward the cost of the rail line.

The Supreme Court's decision yesterday did not discard the transfer, but it sent the case back to Circuit Court to be heard on the merits. The high court reversed a lower court's ruling that the state is protected from the lawsuit by sovereign immunity.

Still, the decision delivers yet another blow to Kaine's efforts to address Virginia's growing transportation crisis.

"He's trying to do everything he can do to address our transportation needs in Virginia, and the courts keep setting him back," said U.S. Rep. James P. Moran Jr. (D-Va.), who has worked closely with Kaine to secure federal funding for Dulles rail. "It's very troubling. It's a big defeat."

Kaine was unavailable for comment, but his spokeswoman, Delacey Skinner, said the governor is confident that he has the authority to transfer the toll road without legislative approval.

"We're committed to moving forward," Skinner said. "We're not done fighting."

It is unclear what schedule the lawsuit will follow now that it is headed back to Circuit Court, but it took more than a year for it to reach the Supreme Court. Local, state and congressional officials hope to receive final FTA approval by the end of this year. If the FTA decides to hold off on approval, Dulles rail could be in jeopardy.

FTA spokesman Dave Longo said agency officials have not had a chance to review yesterday's decision. But Virginia Transportation Secretary Pierce R. Homer said: "The only thing I'm afraid of here is the timeline. If the litigation stretches out a couple of years, it adds cost to the project. But we're going to win on the substantive merits of the case."

Homer added: "There isn't a DOT project in the country that isn't sued. In the short-term, it's not a concern. We're proceeding to develop the project as previously planned."

Phase I of the Dulles Rail project calls for the construction of a "Silver Line" from the East Falls Church Station in Arlington County to Wiehle Avenue in Reston. Phase II, with a scheduled completion date of 2015 -- that is also likely to be delayed -- would extend from Reston to the airport and into Loudoun County. The total project cost is about $5 billion, with the money coming from the expected federal share, two special taxing districts along the proposed rail line and toll road revenue.

The FTA already has rejected the project once, citing cost and concerns about the airports authority's ability to manage it.

Yesterday's decision marks the second time in recent months that the Supreme Court rejected the methods by which the state wants to raise money for road and transit improvements. The same conservative activists -- including Del. Robert G. Marshall (R-Prince William) -- challenged the establishment of regional transportation authorities that would have leved taxes in Northern Virginia and Hampton Roads.

McSweeney won that case as well. In it, the Supreme Court ruled that only elected officials may impose taxes.

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