Two Northern Virginia men asking the courts to block the transfer of the Dulles Toll Road filed an appeal Friday with the state Supreme Court after a Richmond judge tossed out their lawsuit in March.
Patrick Gray and James Nagle, both of Fairfax County, have filed suit to stop the Kaine administration from turning over the state roadway to the Metropolitan Washington Airports Authority, which would use likely billions in toll revenue to help fund a new Metrorail line to Dulles Airport.
If the suit were successful, it would prevent, or at least complicate, the use of the funds for the 23-mile rail extension. Gray and Nagle asserted the move was unconstitutional, because the governor lacked the authority to sign off on the transfer without permission from the General Assembly.
The commonwealth, however, successfully argued that the two could not legally sue the state, citing the doctrine of “sovereign immunity,” which protects agencies from lawsuits. Richmond Circuit Court Judge Margaret Spencer dismissed the case before it went to trial.
“Suits, such as this, challenging the constitutionality of actions of executive branch officers and agencies unquestionably interfere with the operations of state government,” the appeal states. “This fact, however, does not warrant an extension of the doctrine of sovereign immunity to constitutional challenges.”
The appeal argues that legal tests of the administration are “essential in order to implement the constitutional scheme of limited government that the people have ratified.”
The lawsuit represents a snag in a mammoth transit project that officials say is on the verge of moving forward after years of planning. Utility relocation in the path of the new track is expected to begin later this year. If the airports authority successfully assumes control of the toll road, it forecasts it will need to raise $2.88 billion in tolls for a project slated to cost $5.14 billion. MWAA also expects to more than double tolls by 2016 to help raise the revenue.
Most recent timetables estimate the entire two-phase project would be completed by 2015.
