Elizabeth River Crossing's Midtown Tunnel

Funding for Virginia's transportation infrastructure planning has hit a sizeable roadblock.

James A Cales, Jr., a Portsmouth Circuit Court judge in Plymouth VA, has ruled that public-private partnerhips there, as defined by the state's Public Private Transportation Act of 1995, are unconstitutional. He said the 1995 law involves an unconstitutional delegation of power to the executive branch.

And that means you can't keep the fruit from that tree too. Cale ruled against proposed tolls on the Norfolk-Portsmouth tunnels under the Elizabeth River.

Cales ruled in Meeks v. Virginia Department of Transportation that the Virginia General Assembly went beyond its state constitutional authority in granting VDOT a free hand to set toll rates supporting backing the debt of the $2.1 billion tunnel under construction beneath the Elizabeth River between Norfolk and Portsmouth. The project is supported by $664 billion of private activity bonds and a $422 million federal loan under the Transportation Infrastructure Finance Innovation Act.

Cales also objected to the transfer of the Dulles Toll Road from the state to the Metropolitan Washington Airports Authority - a four jurisdiction US, DC, VA, MD agency - which he said was done without constitutionally required approval by the legislature.

Patrick McSweeney, the winning attorney, says that it spells trouble for all public private partnerships in the state, and also for the Dulles Toll Road.

Tolls were originally used to build the two-tube four-lane Downtown Tunnel and the single tube 2-lane Midtown tunnel but they were discontinued in 1989.

Under a toll concession to Elizabeth River Crossings LLC (ERC) tolls are planned to resume next year. The concessionaire ERC has been operating the tunnels since last summer and has already spent some $300m of over $1 billion of improvements to which it is contractually committed. Those involve adding a 4th 2-lane tunnel tube the segments of which are under construction in a shipyard in Baltimore - modernization and rehab of the existing tunnel tubes, and work on approach roads to upgrade them to full expressway standard.

Obviously, when obstacles stand between politicos and the money they're counting on, certain people get upset. Governor McConnell issued a statement saying he's disappointed:

"The existing tunnels were built with toll revenues and tolls are needed again to build a second Midtown Tunnel and make other essential improvements for the sake of safety and efficient travel. The (state) will seek a stay and appeal the judge’s ruling to the Virginia Supreme Court because we believe the state’s position is legally correct through the Virginia Constitution and state code.

"The Elizabeth River Crossing project is vital to the safety, transportation and economic vitality of the Hampton Roads region."

In other words, "---- --- ----! How did that happen?"

State Attorney General Ken Cuccinelli also weighed in.

"If this ruling stands and becomes the law of Virginia, it would threaten the (state's) ability to use public-private partnerships to construct major transportation projects. Many tolled projects could require legislative approval before proceeding, which would mean significantly increased costs and construction delays."

Any AG in his shoes, obviously, would have had to say the same thing... They know where their bread is buttered.