Category Archives: Local law, policy & news

As reported in the Fayetteville Observer over the weekend, the N.C. Department of Transportation (“NCDOT”) is moving forward with its $4.4 billion (yep, that’s “billion” with a “b”) plan to widen I-95 from four to six lanes through implementation of tolling on this critical 182-mile transportation corridor.

Why tolls?  To quote the story:

The reason is money.  [NCDOT] figures show the state has roughly $45 billion in projects to complete by 2020.  But the state expects to have only about $9 billion to spend on those projects.  The funding gap would mean many key projects would have to be postponed for years.

To the extent current conditions, anticipated usage and a comparison of the available alternatives dictate that lane expansion is necessary — issues I have not researched thoroughly and therefore cannot opine upon — I can understand why NCDOT officials are seeking federal approval for converting I-95 to a toll road.  The divisive political environment pervading our nation’s capital virtually guarantees that no new federal infrastructure investment, beyond what the state is already receiving year-in and year-out on average, can be expected anytime soon.  That means end-users, and not taxpayers, are going to have to foot the bill if this ambitious widening project is to move forward now.

However, with the price of 87-octane currently hovering around $3.70 per gallon, I suspect the public’s reaction to the tolling plan could be vocally negative.  We’ll know shortly whether these suspicions are confirmed, as the NCDOT is conducting informal hearings up and down the corridor between tomorrow and February 27.  If you’re interested in attending, a complete calendar of the hearings can be found here.  And for more information, including a chance to review the “I-95 Corridor Planning & Finance Study Environmental Assessment” recently authored by NCDOT’s consultants, head on over to www.driving95.com.

What’s my view on this as a construction law matter, as opposed to a public policy and/or political matter?  Well, I’ve spent a bit of time perusing those portions of the Study related to the financing of the project, keeping in mind that other states have utilized public-private partnerships (“PPPs”) in the design and construction of new toll facilities.  Under a PPP, one or more private partners invests up-front in the design and construction of the infrastructure in question, and is subsequently reimbursed though (and profits by) tolling.  As best as I can tell, however, the Study does not indicate whether NCDOT is still considering the PPP option.

I’m curious about this angle to the story, since PPP’s introduce a host of issues of interest to construction law attorneys:  Would the construction contract(s) be awarded to the “lowest responsible bidder” within the statutory sealed bid framework, or by some other competitive or negotiated process?  How transparent would the procurement process be?  Would statutory bonding requirements for public projects apply?  What project-level communications challenges might be created through the involvement of a private partner?  Would the government, its private partner or both have authority to terminate a contractor for cause?  How might typical contractual risk allocations be shifted?  I’m sure my fellow construction law practitioners could suggest a score of others.

I’ll be keeping my eyes on both the PPP-angle to this story and other developments, so please stay tuned.