The Daily Camera
February 17, 2014
The dispute over a long-term contract that would allow a private firm to exercise day-to-day control over busy U.S. 36 between Denver and Boulder has forged some strange political bedfellows over the last several weeks.
Left-leaning Drive SunShine Institute has spearheaded opposition to the 50-year deal between the Colorado Department of Transportation and Plenary Roads Denver by characterizing it as a giveaway of public infrastructure to a multinational consortium via a contract that was crafted in secret.
The Boulder-based alternative energy think tank plans a "freedom vigil" at CDOT headquarters on Wednesday to turn out a crowd against the public-private partnership, which lets Plenary collect tolls in two managed lanes being built in the corridor in exchange for an injection of upfront cash and plowing and pothole services until 2063.
Meanwhile, some Republican lawmakers have been busy slamming their Democratic colleagues for pushing a bill five years ago that gave birth to the High-Performance Transportation Enterprise, a CDOT subsidiary charged with finding new ways of funding road projects — including the partnership with Plenary.
Compass Colorado, a conservative group, last week bombarded the districts of several Democratic state lawmakers — including Sen. Rollie Heath of Boulder — with robocalls urging constituents to voice their displeasure with the contract.
"We are condemning it because it's a contract that was decided behind closed doors by unelected bureaucrats," Compass Colorado Executive Director Kelly Maher said Monday. "We have (Democrats) who created it, voted for it and now are trying to run away from it."
"Typically it seems like most Republicans are protecting big corporate interests," he said. "It's refreshing to see them thinking freely and freshly on this issue."
GOP upset with FASTER bill
But University of Colorado political science professor Ken Bickers said it's not that simple a breakdown.
While people at both ends of the political spectrum agree that CDOT should have been more transparent about the contract details, he said, each side has divergent interests in condemning it.
Republicans are upset with the 2009 bill that the Democratic-controlled Legislature passed — the Funding Advancement for Surface Transportation and Economic Recovery Act, or FASTER — that was designed to find new ways of boosting funding for road projects, Bickers said.
GOP lawmakers, he said, see the law as an attempt by Democrats to usurp TABOR government growth limits approved by voters more than 20 years ago by shifting the source of funding for projects such as the reconstruction of U.S. 36 from taxes to fees — or tolls.
"It's a deep-rooted thing," Bickers said. "The Republicans don't want to abandon TABOR and they see this as a workaround around TABOR, and if it works here, it will be used again and again and again."
Rep. Ray Scott, R-Grand Junction, declared of FASTER at a joint transportation committee hearing last week that "there's gotta be something smarter than this."
On Monday, Scott said Colorado could find additional sources of funding without having to necessarily resort to public-private partnerships. He said the state could do more to encourage oil and gas development and harness the severance fees from that drilling activity to put toward projects like U.S. 36.
"North Dakota and Texas — they've figured how to use energy severance money to pay for infrastructure," he said. "But here, we're stifling that industry as much as we can."
Scott said it's critical that any future public-private partnerships be done in the open "with more controls" and "more of a review process."
Heath, who voted for FASTER in 2009, said the law has generated millions of dollars for road projects through increased vehicle registration fees that wouldn't otherwise have gotten funding. Partnering with the private sector is another tool provided by the law that can't be ignored, he said.
"Unless you want to let all of our infrastructure continue to deteriorate, the only way we're going to fund projects is through public-private partnerships," he said.
But Heath acknowledged that the provision in the law dealing with the way CDOT's High-Performance Transportation Enterprise would operate was poorly written.
"It's true, we provided virtually no oversight with that," he said.
Heath said there is talk among legislators to revisit that part of FASTER to ensure that future contracts get the proper review they need.
"I think we need to put more transparency in it," he said. "My guess is we will."
'Following the structure'
CDOT spokeswoman Amy Ford said her agency is simply "following the structure that was laid out for us" in FASTER.
Despite the apparent widespread distaste that has arisen in the last few weeks toward the specific contract to build and operate the U.S. 36 Managed Lanes project, she said, the fact remains that CDOT will be facing $600 million to $700 million annual shortfalls.
And according to a recent survey, she said, voters in Colorado have expressed an unwillingness to raise gas taxes or support a statewide sales tax to fund transportation projects.
"The answer wasn't just no — it was, 'Hell no,'" Ford said of proposed taxes.
That leaves CDOT with little choice but to look for alternate ways of funding transportation projects, she said.
And the deal with Plenary, Ford said, is one that shifts the risks of the project from the state to the private sector while at the same time achieving the overarching goal of providing congestion relief on a highway that sees nearly 100,000 vehicles traveling on it per day.
The contract with Plenary is expected to close before the end of the month.