People who have been in the fight against the Dulles Greenway’s constantly increasing tolls—and have been constantly frustrated in that fight—see hope things will be different this year after a change in state law.
“I think it creates a level playing field, and it’s an opportunity for a blank slate at the [State Corporation Commission],” said Supervisor Matthew F. Letourneau (R-Dulles).
This year, legislation that guaranteed toll increases on the Greenway every year but limited them expired. That bill, introduced by then-Sen. Mark Herring (D) and then-Del. Joe May (R), was intended as a way to curtail the even higher toll hikes that commuters had been seeing before. It all but guaranteed annual rate hikes of at least 2.8 percent each year. In practice those increases have often been higher.
But with that law sunsetting this year, the privately owned Greenway is once again governed by older law that requires the corporation to demonstrate that its toll requests do not materially discourage use of the road, provide the user a reasonable benefit for the cost, and provide the operator “no more than a reasonable rate of return.” And with many Loudouners already avoiding the Greenway because of the tolls, county government leaders think they have a fighting chance this year to beat back another toll increase.
Meanwhile, the Greenway owners have gotten even more aggressive with their tolling plans.
To increase toll rates, the Greenway must make its case in front of the State Corporation Commission, which also regulates utilities. This year, the Greenway is asking the state for five years of toll increases, ranging from a 5-percent increase on off-peak traffic for 2022 to a 6.8-percent increase on peak hour traffic in 2025. If approved, tolls would stand at $6.15 per one-way trip in off-peak hours, and $7.90 in peak hours by 2025.
A commuter taking the Greenway to and from work every day under those toll rates could spend more than $4,000 a year just in tolls.
Today those tolls are $4.75 and $5.80.
While before the Herring-May bill the Greenway was raising tolls even more quickly,Letourneau said things are different this time—for the first time, the Greenway’s attorneys face a coordinated push back.
“You have to remember at that time, when you go back over a decade, tolls were not as high as they are either, and so I don’t know that the public outcry was as great,” Letourneau said. “…The county was certainly not involved, and there was no organized effort to oppose rate increases. The commission was essentially listening to one side without much of a push back.”
This time the county has hired national law firm Troutman Sanders LLP, now Troutman Pepper Hamilton Sanders LLP after a merger with a Philadelphia-based firm. And, over the course of years of unsuccessfully fighting the Greenway’s tolls including a court battle that went to the state Supreme Court, Letourneau said “our understanding of the Greenway’s operation is much greater now.”
That understanding is limited outside of Toll Road Investors Partnership II L.P, the corporation that owns and operates the Greenway, and its owners, Australia-based multinational firm Atlas Arteria. The Greenway makes limited financial disclosures and has successfully protected its books from public inspection.
This year has also seen unprecedented outcry from the public.Hundreds of people have filed comment with the State Corporation Commission, with every single one of them opposed to toll increases.
“I just don’t think that kind of evidence has been before the SCC before,” said Senior Assistant County Attorney Ann Golski.
She pointed out the testimony against the toll increases comes from county supervisors, state legislators, the Loudoun County Chamber of Commerce, nonprofits, business leaders, and regular, everyday Loudoun citizens.
“This is really the first time we’ve been able to challenge a toll increase, and we’ve done that this time, and it’s been with unanimous support across the board,” Golski said. “It’s so rare to see such a broad-based agreement on an issue.”
SCC Staff Question Greenway Arguments
In expert testimony filed by SCC staff members, those staffers raised doubts about the Greenway’s argument that the requested tolls would not discourage people from using the road—one of the tests the Greenway’s toll increase requests must pass.
Mark K. Carsley, a utilities manager in the commission’s Division of Public Utility Regulation, wrote that even under the assumptions made by the Greenway’s witnesses, the Greenway’s toll increases are estimated to discourage about 5.9 percent of travelers from taking the Greenway from 2021-2025—over a million trips that will go instead on public roads. He also wrote that a toll increase is likely to exacerbate the declining traffic numbers on the Greenway, which has seen peak usage drop while the county and state rush to build new alternatives to accommodate demand elsewhere.
Scott C. Armstrong, deputy director in the commission’s Division of Utility Accounting and Finance, found that means there is “a high level of uncertainty about whether the proposed tolls will meet the statutory criteria, in particular whether they will materially discourage use of the roadway and whether the tolls are reasonable in relation to the benefit derived.” And even if those criteria are met, he found, it may be premature to grant toll increases that far into the future.
“That’s the first time the staff has ever really questioned TRIP II’s assertions and their data,” Golski said. “They’ve never done that before, and because we are now able to fight the Greenway toll increase, our experts are able to refute TRIP II data and show it’s inaccurate, and the staff is seeing that as well.”
She said the Greenway is also ignoring the impacts of COVID-19 in its arguments, and that SCC staff members have picked up on that, too.
“They’re using historical data that staff has said doesn’t apply now, and may never apply again,” she said.
Nonetheless, the Greenway brings significant weight to many of its fights, and has been virtually unbeatable in the General Assembly. Year after year, Loudoun’s state legislators have promised action on the Greenway’s tolls, and each year pass nothing.This year a bill first introduced in 2015 by then-Del. David I. Ramadan, and reintroduced this year by Dels. Suhas Subramanyam (D-87) and Wendy W. Gooditis (D-10), died in committee without even the unanimous support of Loudoun’s own state legislators.
The Greenway has attracted many Richmond names—one of its lobbyists is Whitt Clement, a former seven-term state delegate and former Secretary of Transportation under then-Gov. Mark Warner. A recently added member of its board of directors, Pierce Homer, was the state’s next Secretary of Transportation after Clement, serving from 2005 to 2010 under Warner and then-Governor Tim Kaine. And on July 21 the Greenway announced it had appointed Renée Hamilton, formerly the Virginia Department of Transportation’s deputy district administrator for Northern Virginia, as its new CEO.
But the SCC is less a political fight. Its hearings and decisions are conducted like a court of law.
“I do this professionally at the federal level a lot,” said Letourneau, who by day is the managing director of communications and media at the U.S.Chamber of Commerce’sGlobal Energy Institute “Ultimately, the commission is going to make the decision based on their interpretation of the law.”
The public comment, in which commuters have repeatedly testified that they avoid the Greenway because of the high tolls, will be part of that, he said.
“I think the public at large has Greenway fatigue,” Letourneau said. “Everyone who’s ever run for office in Loudoun County in the last decade plus has said something or campaigned about the Greenway. It’s not that any of those people were insincere about it, it’s that a lot of times they weren’t really in a position to do anything about it. So, I think there’s a natural skepticism out there in the public that this will be different, but the reality is, from a technical and legal perspective, this will be different.”
The SCC will hold a hearing on Aug. 13 at 10 a.m. Public comment remains open until Aug. 24, and can be filed atscc.virginia.gov/case, referring to case number PUR-2019-00218. Documents from the case are atthe SCC’s website.