Virginia Supreme Court Sides with ARTBA, Upholds State's P3 Enabling Law

Supreme Court overrules lower court ruling labeling P3-enabling legislation as unconstitutional

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The Virginia Supreme Court October 31 agreed with the American Road and Transportation Builders Association (ARTBA) in the case of Elizabeth River Crossings OPCO, LLC and Virginia Department of Transportation (VDOT) v. Danny Meeks and overruled a lower court’s decision to strike down Virginia’s Public Private Transportation Act.

The association, along with the National Conference of State Legislatures, filed a “friend of the court” brief in the case.  At issue was a lower court ruling which held that Virginia’s public private partnership (P3) enabling legislation was unconstitutional because it allowed VDOT to set toll rates on the Midtown Tunnel Extension project in the Hampton Roads region of Virginia. ARTBA’s brief argued that as manager of the state’s roadways, VDOT was the most qualified entity to determine toll revenues needed to support the Hampton Roads project.  The Virginia Transportation Construction Alliance, ARTBA’s affiliated chapter, also filed an amicus brief and played a key leadership role in defending the commonwealth’s P3 statute.   

P3s have become a useful tool in helping cash-strapped states meet the public’s growing transportation needs.  ARTBA stressed that, if allowed to stand, the lower court’s holding would prevent Virginia from entering into future P3 project agreements and also potentially put existing projects relying on tolls at risk. A number of other states have P3 enabling legislation that is structured similarly to the Virginia law, and ARTBA voiced concern that the lower court ruling, if upheld, could foster challenges in other states. 

The ruling represents a victory for the U.S. transportation construction and Virginia’s P3 community in that it allows work on a major infrastructure improvement project to proceed and preserves the states existing tolling methods. Also, ARTBA hopes the Court’s decision sends a signal that unwarranted challenges to P3 legislation in other states will be overturned in a similarly swift and absolute manner.