Under state law, opponents to Hogan's $9B toll lane plan have little recourse

When General Assembly Democrats pushed through a law in 2013 to help build mass transit projects with the help of private companies, none of them envisioned Republican Gov. Larry Hogan's upset win a year later.

Hogan is now using that law to push a $9 billion plan to add hundreds of miles of toll lanes to three of Maryland’s most congested highways, and the law gives the legislature no meaningful way to intervene.

"We can do all of it without their permission," Hogan said Friday. "They have no real input. "

Motorists groups and toll-lane advocates celebrated the governor's idea to add four lanes each to the Capital Beltway, Interstate 270 and the Baltimore-Washington Parkway.

But smart-growth groups, the environmental community and some mass transit advocates are flabbergasted that Maryland would spend that much money on a solution they doubt will solve gridlock.

“Adding four lanes to all these highways is insane,” said Dru Schmidt-Perkins, executive director of the smart-growth group 1000 Friends of Maryland.

“With everything we know about transportation, everything we know about car travel, everything we know about our transportation budget and all our needs," she said, "it's totally a bad idea.”

Despite such objections, the public-private partnership law Hogan plans to use has no provisions that would allow the Democratic-controlled General Assembly and its allies to have any control over — let alone veto — the governor’s plan.

The General Assembly's top legislative analyst agreed that the law allows Hogan to largely bypass state lawmakers and their traditional budgeting power, only requiring approval from the three-member Board of Public Works. Hogan and his frequent ally Comptroller Peter A. Franchot sit on the board with Treasurer Nancy Kopp.

“If they do it purely through the Transportation Authority and the Board of Public Works approves it,” said Warren Deschenaux, executive director of the Department of Legislative Services, “that could be that.”

But, Deschenaux added, the legislature could pass a new law to take back their authority.

“If the legislature wanted to, they could modify the process that’s in place,” he said. “The legislature can always amend the law.”

House Speaker Michael E. Busch and Senate President Thomas V. Mike Miller, both Democrats, declined through a spokesperson to comment.

When the legislature passed the law, which was used for the first time to launch the $2 billion Purple Line in the Washington suburbs, many Republican lawmakers objected. For some, those concerns have evaporated now that Hogan’s in charge.

Del. Warren Miller, a Howard County Republican, for example, voted against the original public-private partnerships bill because he said he was worried it would be used to fund wasteful projects. But he said he applauded Hogan’s approach.

“It’s kind of amusing that the Democrats around the legislature passed this P-3 legislation to establish the rules of the game, and now they’re upset the governor is playing by the rules,” he said.

“The proof is always in the deal,” Miller said. “As long as it’s a competitive and open process, it’s a tremendous benefit to everybody.”

Transportation advocates, however, are skeptical that widening congested highways will do much besides disrupt nearby neighborhoods and attract more cars.

“They billed it as traffic relief, and I don't think evidence supports that,” said Brian O’Malley, president and CEO of the Central Maryland Transportation Alliance. “I know that to the average person it seems like traffic relief, but experience shows otherwise.”

O’Malley pointed to the $1.6 billion widening of I-405 in Los Angeles, where new lanes were added and congestion during rush hour was back to pre-construction levels within a year.

“If their stated goal is traffic relief, what options have they studied? Or is this just a gut feeling that this is the best option?” he asked. “I worry that we're spending $9 billion on gut instinct and will discover we should have thought it through more.”

Maryland Department of Transportation spokeswoman Erin Henson would not say whether the state considered options but reiterated that such express toll lanes have been used successfully all over the world.

“The Hogan administration is moving forward with express toll lanes because they have proven over and over again, nationally and internationally, that they reduce congestion on the entire transportation network, including on the existing lanes that remain free and on the local roads in the region,” she said.

Henson said the state will hold public meetings about the specifics of the proposals once officials decide how the roads will be widened and how the state expects to acquire property to do it.

The governor on Thursday put out a call to private companies to propose how, when and where the new lanes could be built. It will be up to the industry to come up with ideas on how to expand highways with footprints that already abut neighborhoods and businesses.

“This is the very first fact-finding step,” Henson said.

The plan announced by Hogan on Thursday calls for a public-private partnership to spend about $7.6 billion to widen I-270 and I-495. Expanding the Baltimore-Washington Parkway involves persuading the federal government to give the road to the state before the state spends $1.4 billion on toll lanes.

Existing lanes on those roads would remain free.

Hogan reiterated in an interview Friday that he plans to structure the deals in a way that won’t cost taxpayers anything. Private companies would pay the upfront costs to design, finance and build the toll lanes. Money from the tolls would be split with the state, which would use the funds on the parkway toll lanes.

The idea of letting private companies have control over parts of public roadways doesn’t sit well with some Democrats who think a better congestion solution would be to figure out how to get more cars off the road.

“This plan would privatize roads at a huge long-term cost to Marylanders to pave more of our space to result in just as much if not more congestion in the long run,” said Del. Brooke Lierman, a Baltimore Democrat and advocate for mass transit.

“It defies all good transportation practices … I don’t like to sit in traffic either, but I understand that adding another lane wouldn’t reduce traffic. It’s a very backwards-looking proposal.”

Political analysts, though, suspect few will challenge Hogan openly for offering a solution to a problem that vexes residents in vote-rich Central Maryland — especially with the 2018 election right around the corner.

“These are folks who spend a substantial part of their day, every day, sitting in traffic. You have a sitting governor who is basically saying, I'm going to do something about this,” Todd Eberly, a political scientist at St. Mary’s College, said.

Eberly pointed out that the plan impacts some of the key jurisdictions Hogan needs to win in a state where Democrats outnumber Republicans 2-1.

“This election is going to be determined in Howard and Baltimore counties,” Eberly predicted. “You have a lot of middle- and upper-middle-class working professionals. These are swing voters, and people you need to persuade.”

Mileah Kromer, director of the Sarah T. Hughes Field Politics Center at Goucher College, said the move could benefit Hogan politically.

“If it ends up being true that the taxpayers aren’t going to have to pay for it, alleviating gridlock is a hard thing to oppose,” she said. “Everybody knows you don’t drive through there during rush hour.”

Sen. Richard S. Madaleno, one of Hogan’s sharpest critics in the legislature and one of the seven Democrats running for governor, on Friday likened the governor’s approach as “let’s have the groundbreaking first and then fill in the details.”

Based on the current charges on Northern Virginia’s express tolls lanes built by the private sector, he estimated the one-way cost of a rush-hour trip from Frederick to Bethesda at $20 to $40.

“We’re talking eye-popping toll numbers,” Madaleno said.

Widening the Beltway beyond its current eight lanes also could require extensive use of eminent domain powers, he said.

“People are frustrated about congestion and they want solutions,” he said. “But let’s have a conversation about it rather than having the governor make the decision by his executive authority.”

Baltimore Sun reporter Michael Dresser contributed to this article.

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