Toll privatization scheme in Michigan HB 4961 amounts to a tax paid directly to private corporations, without representation

Posted on May 26th, 2010 Dan

Update (May 26/ 2010 7pm) This bill has passed the house, 56-51 and is going to the Senate.

Michigan House Bill 4961 [pdf] boils down to Taxation without Representationturning the State’s right to levy taxes over to private international corporations, essentially ceding sovereignty over critial infrastructure.  The corporations will be able to levy highway tolls without oversight or regulation on US citizens, should this bill pass.

At an absolute minimum it allows the creation of a single high occupancy toll lane.   After the next repaving of an entire highway, tolls can be collected on all lanes.

Now that the financial elite have tanked our economy, they’re trying to buy up our infrastructure and property using their international corporations that operate above the law.

Some important exerpts from the bill:

… to abolish the office of state  highway commissioner and the commissioner’s advisory board and to transfer their powers and duties…

TO PROVIDE FOR PUBLIC-PRIVATE  TRANSPORTATION FACILITIES; TO AUTHORIZE PUBLIC-PRIVATE AGREEMENTS RELATING TO … TOLLING, OPERATING, OR  MAINTAINING A PUBLIC-PRIVATE TRANSPORTATION FACILITY

[allow private corporation to tax the use of public “transportation facilities” … but what constitutes a transportation facility?]

“TRANSPORTATION FACILITY” MEANS ANY NEW OR EXISTING  HIGHWAY, ROAD, BRIDGE, TUNNEL, OVERPASS, RAMP, INTERCHANGE, FERRY,  AIRPORT, VEHICLE PARKING FACILITY, VEHICLE TRANSPORTATION FACILITY,  PORT FACILITY, LOCKS FACILITY, RAIL FACILITY, INTERMODAL OR OTHER  PUBLIC TRANSIT FACILITY, OR ANY OTHER EQUIPMENT, ROLLING STOCK,  SITE, OR FACILITY USED IN THE TRANSPORTATION OF PERSONS, GOODS,  SUBSTANCES, VEHICLES, …

[Wait for it, wait ….]

INFORMATION, OR MATTER OF ANY KIND

[data cables are included in “transportation facilities?!”  This bill would allow sale and private taxation of network (internet/data) infrastructure as a “transportation facility” based on “congestion.”  Data cables are already leased by big cable/telcos so what does this mean for them?]

… INCLUDING THE SALE OF REVENUE BONDS …

[turn the business holdings into a fiat financial market; enable fractional lending based on expected future revenue, destabilizing the business]

“INSTRUMENTALITY OF GOVERNMENT” MEANS A LEGAL PUBLIC  ENTITY CREATED OR EMPOWERED TO CARRY OUT FUNCTIONS COMMONLY CARRIED  OUT BY UNITS OF GOVERNMENT

THE AGREEMENT SHALL PROVIDE THAT THE OWNERSHIP  OF A TRANSPORTATION FACILITY WITHIN THIS STATE SHALL BE VESTED IN  AN INSTRUMENTALITY OF GOVERNMENT AND THAT TITLE TO THE  TRANSPORTATION FACILITY SHALL NOT BE ENCUMBERED

[the corporation will have complete “unencumbered” control]

NO PROVISION OF A  PUBLIC-PRIVATE AGREEMENT SHALL ALLOW THE PUBLIC TO BE DEPRIVED OF  THE USE AND BENEFIT OF A TRANSPORTATION FACILITY EXCEPT AS  NECESSARY TO IMPLEMENT TOLLS OR OTHER CHARGES

[the corporation has the authority to deny access if you don’t pay the toll]

A TOLL MAY BE  IMPOSED ON A HIGHWAY ONLY IF IMPOSED FOR THE USE OF NEW HIGHWAYS,  OR THE USE OF EXPANDED HIGHWAY CAPACITY BEYOND HIGHWAY CAPACITY IN  PLACE ON THE EFFECTIVE DATE OF THE AMENDATORY ACT THAT ADDED THIS  SECTION.

[tolls may be levied for any expansion or heavy traffic (?)]

TOLLS AND OTHER CHARGES IMPOSED FOR THE USE OF A  TRANSPORTATION FACILITY ARE NOT SUBJECT TO REGULATION BY ANY OTHER  GOVERNMENTAL AGENCY.

[the tolling will not be regulated by the government]

NOTHING IN THIS SECTION SHALL BE CONSTRUED TO  ALLOW THE CONVERSION OF ANY NONTOLL OR NONUSER-FEE LANES EXISTING  ON THE EFFECTIVE DATE … WITH THE EXCEPTION OF A HIGH-OCCUPANCY VEHICLE LANE THAT MAY BE OPERATED AS A HIGH-OCCUPANCY  TOLL LANE FOR VEHICLES NOT OTHERWISE MEETING THE REQUIREMENTS FOR  USE OF THAT LANE.

At a minimum, if this passes, the corporation(s) will create high occupancy toll lanes.  Initially this allows them to just take one lane and turn it into a private toll lane.  If we let this pass, how easy will it be to expand it to 2 “managed lanes,” or 3, or the whole highway?

When the highway needs repaving, will the private company dictate who gets the contracts? And how do we select which private company gets to take control in the first place? Well, anything goes according to this:

ANY COMPETITIVE SELECTION PROCESS THAT THE DEPARTMENT  DETERMINES TO BE APPROPRIATE OR REASONABLE …  USING A COMPETITIVE  SELECTION PROCESS WHEN TO THE EXTENT PRACTICABLE

….

INFORMATION SUBMITTED UNDER SUCH A  PROMISE OF CONFIDENTIALITY SHALL NOT BE SUBJECT TO DISCLOSURE UNDER  THE FREEDOM OF INFORMATION ACT

[The bidding process will be competative to the extent that the government determines is “reasonable,” but you’ll never know because whatever we say is “private negotiations” will be exempt from FOIA requests]

A newer version of the bill (pdf) has been released that is substantially the same but provides for “public hearings” to receive user input; amounting to no real oversight or accountability.

THE COMMISSION SHALL CONDUCT A PUBLIC HEARING AT LEAST ONCE EVERY 5 YEARS TO RECEIVE PUBLIC COMMENT AND INPUT WITH REGARD TO THEN EXISTING PUBLIC TRANSPORTATION FACILITIES ….

After the next repaving, all highway lanes can be turned into toll lanes.   Signing this bill will inevitably turn our Michigan highways into private revenue streams for multinational corporations, not to mention ports, rail, and network infrastructure.  This is infrastructure we’ve already paid to build, and need to maintain ourselves in order to sustain the local economy by hiring local workers and companies.

People from Michigan, it is absolutely critical that we reject this bill.  We can not let them hand our infrastructure over to international corporations as many other states have.  In the long run Michigan will lose on this deal in a big way.

They mean business and will do whatever is necessary including paying off our elected officials.  Call your representatives and let them know we’re watching!

– – – – – – – – – – – – –

From MI Rep Paul Opsommer:

OUT-OF-STATE MEDDLING WORSENS HB 4961

May 24, 2010

State Rep. Paul Opsommer today criticized Canadian and Ohio officials for pushing legislation that would allow the Michigan Department of Transportation to toll virtually anywhere in Michigan.

“At the end of the day, whose law is this anyway?” asked Opsommer, R-Dewitt. “Canada’s understandable need to be part of border discussions is now being eclipsed by their off-base efforts to support the Ontario pension fund, and now we have resolutions being introduced involving the Ohio Legislature as well. If we pass laws in Michigan that give MDOT unilateral tolling power in our state it should be because that is what the Michigan Legislature feels is right, not because of pressure from other states or countries.”

Opsommer made his comments in response to a recent news story that officials in Ohio are advocating for their resolution SR 223 in support of the Detroit River International Crossing. The bill in Michigan that would allow for that, HB 4961, would also give new power to MDOT at the expense of the Legislature. HB 4961 is also criticized for allowing “instrumentalities of government” from other countries and states to enter into contracts that could potentially determine the tolling rates and eminent domain decisions taking place in Michigan.

“It has been a conscious decision by MDOT to wrap the DRIC bridge up into broad public-private partnership legislation that would not only allow for the DRIC but would cause the Legislature to give up its authority to statutorily authorize tolling anywhere else in the state,” Opsommer said. “I don’t know if this is because the governor wants to use the bill as leverage to keep Canada happy with the DRIC, or if she simply wants to have the unilateral ability to impose tolls on taxpayers with no other checks and balances, but either way it’s wrong.”

The Ambassador Bridge, Blue-Water Bridge and all other tolled facilities in Michigan received their tolling authority through stand alone bills authorized by the Legislature. Opsommer cited a recent letter from the attorney general’s office that concurs that MDOT currently only has the ability to toll where the Legislature has given its formal approval.

“Whether tolling is done directly by MDOT or a private contractor, you want someone who has been elected by the people determining where to use that tool,” Opsommer said. “In cases where it is being done by a private contractor who is using toll rates not just to break even but also to create profits, I would think you would want to keep voter accountability even more. If toll rates go unfairly through the roof, who are taxpayers supposed to turn too? The Legislature will be powerless at that point; it would actually be players from outside of the state who would have the final word.”

Opsommer also pointed to international pressure from Canada as having an unfair influence on the process.

“If it wasn’t for the fact that the main potential investor in all of this, the Ontario pension fund OMERS, was recently granted expanded powers by the Canadian government to provide investment management services I am not sure we would even be here,” Opsommer said. “We shouldn’t be making decisions on tolling Michigan taxpayers based off of the financial needs and a quest for high returns by a Canadian pension fund. The DRIC and HB 4961 should be treated as two entirely separate issues.”

The National Motorists Association has endorsed a substitute version of HB 4961 that would ensure the Michigan Legislature still retained its tolling authority over MDOT and other instrumentalities of government from outside of the state.

“It is essential to not pass any version which does not provide for specific legislative approval for any public-private partnership that will involve direct tolling for the users,” said Jim Walker of the National Motorist’s Association. “Should the H-6 unfortunately pass in the House, I hope the Senate will have the courage to fix this issue.”


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