In the near future, we will be introducing legislation to both reform the Commonwealth’s Transportation P3 law and pause PennDOT’s Pathways Major Bridge P3 Initiative (bridge tolling).
On February 18, 2021, PennDOT released a list of 9 bridges being considered by the Department for rehabilitation through public-private partnership (P3) agreements, which can be found on PennDOT’s website. Through these P3 agreements, PennDOT will be selecting one or more private development entities to finance and rehabilitate all or some of these bridges, and the financing will be recouped through the implementation of tolls on motorists for the length of the P3 agreement.
The authority for PennDOT to implement these tolls through P3 agreements was created by Act 88 of 2012. This Act did create a process whereby the General Assembly can disapprove a P3 project via adopting a concurrent resolution. However, the speed and timing at which PennDOT is pursuing these tolls coupled with the Department’s intentional withholding, until after the deadline, of the list of bridges has essentially bypassed the small amount of oversight given to the General Assembly under Act 88. To illustrate this point, consider the following: - PennDOT received approval from the Transportation P3 Board on November 12, 2020 after presenting to the Board a nine-page PowerPoint presentation that consisted of pictures, one chart and less than two-dozen bullet points, none of which contained any detail regarding which specific interstate bridges PennDOT was considering.
- The November 12, 2020 board approval date is important because, under Act 88, the General Assembly has nine session days or twenty calendar days, whichever is longer, from this date to pass a concurrent resolution to disapprove the project.
- It is not coincidental that PennDOT chose to start Act 88’s concurrent resolution time-limit right before the end of the 2019-2020 Legislative Session; Act 88 does not contain language restarting or pausing the time-limit clock at the beginning of the next session should not enough session days remain in the legislative session.
- PennDOT’s November 12th approval date effectively left the General Assembly with little time or details to properly consider a concurrent resolution because:
- After November 12th, only three voting session days remained in the 2019-2020 legislative session to draft, introduce, and pass a concurrent resolution.
- Several session days are needed to form committees, adopt committee rules, and perform other necessary functions at the beginning of a session.
- PennDOT did not provide a list of specific bridges that were being considered by the Department during the concurrent resolution time-frame, which is needed to properly consider whether PennDOT’s Pathways Major Bridge P3 initiative is in the best interest of the Commonwealth.
- Now that Act 88’s concurrent resolution time-limit has passed, PennDOT has finally specified which bridges are being considering for tolls at a time where members have limited legislative options.
Considering the aforementioned points, it is abundantly clear Act 88 is in need of reforms and greater oversight and clarity needs to be given to the General Assembly. To this end, we are introducing legislation to do the following:
- The P3 Board will be required to disapprove a proposed transportation project if the transportation project involves state property and the public entity has not disclosed the specific property involved in the project.
- For transportation P3 projects involving state property and where there are no user fees involved in the proposed P3 project, the General Assembly may disapprove the project via a concurrent resolution within 20 calendar days or 9 voting session days, whichever is longer, of the P3 Board approval date, and the clock resets at the beginning of a session should not enough days exist within the legislative session that the P3 Board approved the P3 project.
- For transportation P3 projects that will impose user fees on state property, such as toll, the transportation project shall not be deemed approved until the General Assembly passes a concurrent resolution approving the project. If the General Assembly does not pass a concurrent resolution within one year, the project shall be deemed disapproved and no public moneys can be spent on the project nor shall the public entity be permitted to pursue a P3 agreement for the project.
- Finally, and most importantly, these changes would apply to both a P3 project presented to the P3 Board going forward and retroactively to PennDOT’s Major Bridge P3 Initiative if the bill would be enacted prior to PennDOT entering into a P3 agreement with a development entity.
We hope you will join us in cosponsoring this legislation so that PennDOT’s Major P3 Bridge Initiative and all future tolling P3 initiatives will be properly vetted by the Commonwealth’s duly elected legislators, not an unelected department.
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