As hundreds of local officials make the trek to Ocean City this week for the annual Maryland Association of Counties conference, they'll have plenty of reason to think about the state's transportation system, and not just because of backups on Route 50. This week brings yet another salvo in the fight between the Hogan administration and the General Assembly over a new law requiring the Department of Transportation to develop a ranking system for highway projects. It's like a messy divorce with local governments playing the role of the children caught in the middle.
We were never fans of the legislation in question. Maryland already had a robust planning process for transportation spending. It left ultimate discretion about what gets built in the hands of the governor, but that's not so much a flaw as a design feature of a broader governmental system in which the chief executive controls the budget. True, a governor can make tragically bad decisions, like Mr. Hogan's choice to kill Baltimore's proposed Red Line light rail, flushing hundreds of millions in planning money and federal funds down the toilet, and instead spending the remaining cash mostly on rural highway projects, some of dubious merit. But there has always been a political price to pay for such decisions, and Mr. Hogan has been, is and will be paying it.
The transportation scoring bill won't prevent governors from doing things like that; they will still have ultimate discretion over what gets funded but will merely have to explain why they chose to fund a lower-ranked project over a higher one. Rather, the point appears mainly to have been to make it a little more embarrassing when Mr. Hogan or future governors do so, while tossing a bit more bureaucracy into the mix.
But the governor claims such a system would be an unmitigated calamity, and during the last few weeks, the Department of Transportation has been hard at work trying to prove his point.
On July 28, Deputy Transportation Secretary James F. Ports Jr. wrote to local governments informing them that they would need to provide a dozen different studies and analyses for each project for which they sought state funding by Aug. 15. "Any major transportation project requested that is not accompanied with the required information detailed in this letter by August 15 will not be considered for funding" in the upcoming six-year transportation plan, he wrote.
To be fair to the department, the law, which went into effect July 1, includes contradictory language about whether it was meant to apply to the transportation projects being evaluated this fall. But such an interpretation would be problematic, as the assistant attorney general who serves as counsel to the legislature pointed out in his own letter on Aug. 10. The law requires the department to develop a weighting system for the 23 separate scoring factors outlined in the law by Jan. 1, a process that involves review by a legislative committee. A law that requires the department to apply regulations before adopting them wouldn't make much sense, a matter that could easily have been cleared up with a little dialogue between the branches of government.
But the real point of this exercise — making local governments mad at the big, bad legislature — was made readily apparent in a new letter Mr. Ports sent this week. It says, more or less, if the General Assembly doesn't want to implement this stupid law this year, we don't either, but we do intend to scare you about it as much as possible. He wrote that the information the department requested in the initial letter will now be required in 2017 — a burden for local officials, perhaps, but less a big deal with 12 months' notice than with two weeks' — and warned ominously that local priorities would no longer hold sway in the process.
That last bit is odd, since the legislation explicitly says that the local priority letter planning process is unaffected by the new law. Granted, county priority letters are not listed among the factors to be used in the scoring system (a point the legislature may wish to clean up), but the locals and state could easily work around that if they wanted to. One of the nine areas identified in the law as part of the scoring system is "local priorities and planning," which it specifies to mean "the degree to which the project supports local government land use and goals." Other metrics relate to local government priorities for local transportation funding and for economic development and revitalization strategies. Granted, that's not the same as "whatever the county executive wants," but those are all the sorts of things that are the backbone of local transportation priority setting, and the law gives the DOT the ability to weight them as heavily as it likes in the final scoring formula.
If Governor Hogan wants to use this law as a talking point in his litany of power grabs by the Democratic legislature, that's fine. He can complain about it all he likes on the way to his re-election bid in 2016, but he doesn't need to torture county executives (including his fellow Republicans) to prove the point. A transportation scoring system may not be necessary, but it isn't some unique devilment Maryland legislators dreamed up — both Virginia and North Carolina have something similar. It need be only so onerous as Governor Hogan decides to make it.