The Commonwealth of Virginia has officially filed its appeal of last month’s ruling prohibiting the use of tolls to fund improvements to the Midtown and Downtown Tunnels in Hampton Roads.
Part of a 58-year P3 agreement that handed operation of the tunnels over Elizabeth River Crossings (ERC), a joint venture of and , the tolls were intended to help fund improvements to the existing facilities, construct a new tube to parallel the Midtown Tunnel, and implement improvements to adjacent roadways.
However, a Portsmouth circuit court judge agreed with a group of local residents that the deal essentially gives ERC the power to levy a tax—something only the state can do under Virginia’s constitution. Although the lawsuit was based on the P3’s constitutionality, citizen complaints have focused mainly on the tolls themselves.
In his appeal to the Supreme Court of Virginia, Attorney General and gubernatorial candidate Ken Cuccinelli (R) argues that the tolls are a user fee allowed under Virginia’s landmark 1995 Public-Private Transportation Act, the foundation for the state’s widely admired portfolio of P3 projects.
Should the ruling be upheld, according to State Transportation Secretary Sean Connaughton, Virginia could be on the hook for at least $700 million if the project is terminated, and as much as $2 billion if ERC proceeds without tolls. Connaughton added that more than $3.4 billion in other toll projects could be jeopardized as well.
No date for arguments before the State Supreme Court has been set.