Taking Tolling to Task: NMA Weekly E-Newsletter #480

On March 15th, a class action complaint was filed in U.S. District Court in Pennsylvania by the NMA and the Owner Operator Independent Drivers Association (OOIDA) that is creating a tsunami-sized wave in the Commonwealth. The Pennsylvania Turnpike Commission (PTC), its officers, and the governor of Pennsylvania are defendants in the claim that PTC for years has been imposing excessive tolls on users of the turnpike.

At the heart of the complaint is the Commerce Clause of the U.S. Constitution which:

a)    Prohibits state actions that unduly burden interstate commerce,
b)    Requires that user fees don’t discriminate against interstate commerce and travel,
c)    Requires user fees to reflect a fair approximation of the use of the facilities and services for whose benefit they are imposed, and
d)    Prohibits excessive user fees in relation to costs incurred by the imposing authority

That last item is particularly interesting because it is a matter of public record that the PTC has been obligated since 2011 to pay the Pennsylvania Department of Transportation (PennDOT) the sum of $450 million annually. PennDOT earmarks those funds to finance off-turnpike road and bridge projects as well as transit operations.

As the complaint notes, the tolls imposed by PTC far exceed the value of the use of the turnpike facilities and services by vehicle operators. Conversely, those same excessive tolls are an undue burden on interstate commerce and an impairment on the right of persons to travel.

How much do the collected toll revenues exceed the cost of turnpike operations? Table 4 taken directly from the OOIDA/NMA filing make the answer startlingly clear.

By January 2018, PTC had paid PennDOT $5.875 billion for Act 44/89, or non-turnpike related, payments. Even the Pennsylvania Auditor General raised concerns. In his September 2016 Performance Audit of PTC, the AG found that “[a]nnual costly toll increases place an undue burden on Pennsylvanians.” No doubt that finding was influenced by the fact that Pennsylvania Turnpike cash tolls increased by over 200 percent since the mid 2000s and PTC’s own projection that another doubling will be needed by 2035 to fund Turnpike operations while also paying non-turnpike obligations to PennDOT.

The class action complaint asks that the defendants be enjoined from further collection and spending of funds in excess of those required to operate/maintain the Pennsylvania Turnpike, and to segregate into escrow excess toll revenue pending a final ruling of the action filed by OOIDA and the NMA. The suit also asks for a judgment that refunds to plaintiffs and putative class members “all payments of tolls imposed upon their use of the Pennsylvania Turnpike System in excess of what was reasonably necessary to pay for the cost of operating and maintaining the Pennsylvania Turnpike . . .”

An action of this magnitude will face many legal challenges and will take time to play out. In the meantime, other states that are planning to expand their own tolling operations best take notice. As NMA President Gary Biller noted to TheNewspaper.com,

“PennDOT has been extracting an annual payment from the Pennsylvania Turnpike Commission of $450 million for many years, most of which is used for “general purpose” non-turnpike projects. Is it any wonder that the Pennsylvania turnpike toll rates have increased more than 200 percent since the mid-2000s, placing the burden of that debt on road users? At a time when other states are considering the tolling of more roads to raise funds, this suit sends a strong message that truckers and motorists are not willing to serve as ATMs for the government.”

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