|Last week, Gov. Beshear previewed his plan for replacing the Brent Spence Bridge./CC|
by Adam Meier
READ PART 2 HERE
This week, the General Assembly will be back in Frankfort to continue its session. What does this mean for Northern Kentucky (NKY) residents? Time, once again, to talk about the Brent Spence Bridge (BSB), tolls, public private partnerships and debate the meaning of "functionally obsolete".
NKY recently witnessed the latest installment of this discussion when Gov. Steve Beshear and Gov. John Kasich met in Covington to announce their new plan for funding the BSB. What was proposed could be called a lot of things… progress… a positive development… a step in the right direction…
But it is not, as reported, what we as Kentuckians should accept as a viable “plan” or “solution."
What was proposed did, however, have a few notable strengths. First, it showed that our governors are trying to take a leadership role in addressing an infrastructure need that affects both states, and that they are willing to discuss the pursuit of a common plan. It is incumbent upon a governor to take on this leadership role and having a common plan of action is a critical early step to possibly securing Federal funding to supplement such a project. A governor should be the chief ambassador to other states, and the chief lobbyist on behalf of his state. Trying to build consensus is a good first step, but we need to go further and build consensus on a better plan.
Another strength is that the governors proposed looking at ways to cut cost. While it seems odd that we are only now looking at cost cutting measures, at least it appears to be occurring.
Finally, the governors of KY and OH are directly addressing the main problem—that is, how to fund the BSB. They did not try delay or divert attention away from the issue by proposing alternatives that don’t solve the problem or would cost significantly more to implement. The BSB needs an update in the near future, and we need to find a way to fund it.
Unfortunately, that is the end of the strengths as the proposal left most observers with more questions than answers.
First, we don’t know how much the bridge will cost until the cost cutting study is completed, nor do we know how much the proposed tolls will be. The word on the street is a goal of close to $1 for locals, but there is no sound basis for that. In fact, a financing plan is not scheduled to be submitted until the end of the year.
And yet, there is a desire for the General Assembly to pass the Public-Private Partnership (P3) legislation to open the door for tolls. It sounds like another one of those “you have to pass it to see what’s in it” proposals, the likes of which have straddled the American taxpayer with Obamacare and Kentucky students with the flawed academic standards known as “Common Core.
It was also noted that they are studying the effects of diversion, namely in Covington, during and after construction. Again, shouldn’t such a study be completed prior to agreeing to and enacting a plan? Gov. Beshear stated during the press conference that “Everybody is entitled to their own opinion, but not everyone is entitled to their own facts.” Exactly which facts might he be referring to? The facts in the cost-savings plan?...The facts in the Financing Plan?…The Covington Diversion Study?…The proposed toll amount? As we know, none of those “facts” are available yet. Let’s slow down and thoughtfully get things in proper order so that we can make an educated decision. This is how good decisions are made in the private sector.
One important factor that appears to have been overlooked, is the constitutionality of the proposed plan. You see, the U.S. Constitution contains several clauses that could call into question the constitutionality of the plan, namely the Commerce Clause, Equal Protection Clause and Privileges and Immunities Clause of the 14th Amendment, as well as the Privileges and Immunities Clause of Article IV itself. This is especially true when considering (1) the bridge literally crosses from one state to another, and (2) there appears to be a proposed 50% discount to locals which would provide for an economic protectionism component to those individuals. While such discounts have been upheld by courts, it was likely because the toll areas were not connecting a state line and therefore did not have a meaningful impact on interstate commerce (as opposed to intrastate commerce). With the right plaintiffs and a skillful lawyer, it’s possible that either the discount or the tolling mechanism itself could be found unconstitutional as a restraint on interstate commerce or the fundamental right to travel.
If that were to occur, after trial and appeals, we could be several years into the project when we find out that we cannot offer a local discount after all and that frequent users will be paying much more than originally anticipated. Additionally, a judge may rule that we cannot toll at all on the bridge and this could put unanticipated risk of default on associated bonds. This, in turn, could result in a large funding shortfall on the project as well as a potential negative impact on Kentucky’s credit rating. Either case would be less than ideal and could be avoided with a better (non-toll) funding mechanism. Let’s take this potential risk out of the equation by taking tolls out of the equation. In sum, the plan offered by Gov. Beshear and Gov. Kasich simply has too many unknowns for the Kentucky Legislature to agree in the next month to allow P3s and this project, as currently proposed, to move forward. Let’s not put the risk on the NKY taxpayers. Instead, let’s take the existing strengths and continue to work together, across state lines, to find innovative and creative solutions—solutions that are both fiscally and logistically possible.
Let’s work on a unified plan between Kentucky, Ohio and U.S. Congress, to show we are serious about finalizing and funding a viable solution. We cannot afford to keep a 50 year old bridge handling more than double its originally anticipated traffic flow on the back burner. Too much is at stake. Stay tuned for a follow-up proposal to keep this dialogue moving forward.
Adam Meier is an attorney licensed in Kentucky and Ohio and a member of the Fort Thomas City Council