The Dulles Rail project’s largest source of funding remains threatened by a lawsuit being considered by the Virginia Supreme Court, despite its resurrection this week
The suit, filed in January 2007 by users of the Dulles Toll Road, seek to reverse the state’s hand-off of the highway — and its revenue — to pay for the Metro extension’s initial 11.6-mile phase. It says the Kaine administration needed legislative approval to give the toll road to the Metropolitan Washington Airports Authority, which is managing the rail project.
If successful, the suit would prove a major snag for the project managers by scuttling a large part of the funding for the $2.6 billion track, which would run from Falls Church to Reston.
The suit, which the Supreme Court heard in mid-April, seemed moot in recent months with the federal government’s January announcement that the rail was too expensive and problematic to commit $900 million in federal funding. But with the Federal Transit Administration’s reversal on Wednesday that the project is tentatively on track for the federal dollars, the toll road suit returns as a major issue.
The lawsuit was appealed to the Virginia Supreme Court after being dismissed by a Richmond Circuit Court judge in March 2007, and is now awaiting a ruling from the state’s high court, expected in early June.
The case was argued by the same Richmond lawyer — Patrick McSweeney — who successfully convinced the state Supreme Court to strike down much of the legislature’s 2007 transportation funding package as unconstitutional.
He said Thursday that he is citing that ruling in this case and draws a number of similarities between the two, though others disagree that they are linked.
The transportation package was struck down because the unelected body empowered to collect the taxes— the Northern Virginia Transportation Authority (NVTA) — could not legally do so under the state’s constitution.
The airports authority, he said, “is far worse than the NVTA.”
“Because only five of the 13 members are appointed by Virginia authorities, and it is by law declared to be independent of any government,” he said. “It is an extraordinary entity.”
But he does have a massive obstacle to surmount — the state argues it can’t be sued under “sovereign immunity.” Those present at last month’s hearing said the justices’ line of questioning boded poorly for McSweeney. In question is whether the legislature must act to bar the toll road transfer, which it hasn’t.
Rail supporter Patricia Nicoson, president of the Dulles Corridor Rail Association, said she didn’t see the case undermining Dulles Rail.
“I don’t think, if the federal government doesn’t think this is going to be an issue, it’s going to be one,” she said.
