(The following story by Tim Thornton appeared on the Roanoke Times website on September 11.)
ROANOKE, Va. — The state’s plan to give Norfolk Southern Corp. more than $31 million to build an intermodal rail yard in Elliston violates Virginia’s constitution two ways. Besides, the state hasn’t even followed its own rules and agreements, so the whole project ought to be scrapped.
That’s the gist of a lawsuit Montgomery County filed Thursday in Richmond Circuit Court against the Virginia Department of Rail and Public Transportation, department director Matthew Tucker and the Commonwealth Transportation Board.
If the county wins, virtually all public funding of private rail projects would be forbidden, according to a letter Gregory Haley, an attorney representing the county, sent to the governor, the attorney general and state transportation officials in May.
“We think we have a very good basis for the suit,” said Annette Perkins, chairwoman of the Montgomery County Board of Supervisors. “The constitution of Virginia very clearly states that taxpayer funds should not be used on a facility that is going to be owned entirely by a private company.”
The state has pledged to pay 70 percent of the development’s cost, build a connector road between the site and Interstate 81 and increase tunnel clearances between Elliston and West Virginia to accommodate double-stacked containers.
An intermodal rail yard transfers trailer-sized containers between trucks and rail cars. This intermodal facility would be part of the Heartland Corridor, a $249 million project that aims to move doubled-stacked freight containers between Columbus, Ohio, and Norfolk faster and more efficiently.
Article X, Section 10 of the state constitution seems to prohibit state financing of such projects through the “credit clause” and the “internal improvements clause.”
Those clauses exist, according to a 1981 opinion by then-Attorney General Gerald Baliles, to prevent the state from repeating policies that led to the loss of “vast sums through speculative financing of private transportation facilities, such as railroads, turnpikes and canals” in the 19th century.
Baliles’ opinion said legislation allowing the state to build and improve privately owned railroad tracks was unconstitutional.
But the prohibition isn’t necessarily ironclad. Baliles pointed out that port facilities owned by the state and leased to a Norfolk Southern predecessor had withstood court challenge.
In an Aug. 19 letter to Haley, Secretary of Transportation Pierce Homer said the current attorney general’s office believes the Elliston plan will survive.
“That’s why they have two lawyers in the courtroom,” said Dana Martin, the Salem District representative on the Commonwealth Transportation Board.
Martin said it seems to him that if such projects were unconstitutional, this would have come up before.
“The state shouldn’t be out there subsidizing a private rail facility,” said Perkins, who taught Virginia government and history to high school students for more than a quarter-century. “It just shouldn’t happen.”
The facility violates the county’s comprehensive plan, its zoning, its economic development plans and damages the community, she said. She calls it a poorly considered project that’s been promoted through exaggerated estimates of economic benefits and state-funded studies conducted by Norfolk Southern.
“It’s not for a public good,” she said. “It’s for the benefit of a private company.”
The county’s suit also points out that the agreement between the state and Norfolk Southern says the rail yard will be completed by June 30, 2008.
That, the county argues, makes the state’s Aug. 19, 2008, approval of the project invalid.