Yesterday The Baltimore Sun ran an editorial about Governor Hogan’s announcement on his top legislative priority this session: repeal the “Road Kill Bill” (i.e., the Maryland Open Transportation Investment Decision Act of 2016). Spoiler alert: it’s not nice.
Like any good dancer, actor or used car salesman, Gov. Larry Hogan has a “move.” It’s just a bit more elaborate than a feather step, a raised eyebrow or a pitch for $200 undercoating. His is the “straw man” — a distortion of reality that allows him to vigorously attack, knock down and refute something that doesn’t even exist.
Battle Lines Drawn
The Sun editorial board accuses Governor Hogan of grossly misrepresenting the law. While admitting that they saw no need for the law given the extent of existing transportation planning requirements, they nevertheless point out that it is strictly advisory:
Governor Hogan or any other governor still retains authority to decide how transportation money shall be spent; the law merely requires him to publicly justify expenditures.
Ah, but there’s the rub. The governor has chosen to make the law as unworkable as possible by drafting doomsday regulations that he claims would kill highway projects. He’s even labeled the legislation on which the General Assembly already overrode his veto as the “road kill bill.” He might as well have called it the “rain tax 2.” …
As the state attorney general’s office advised lawmakers earlier this year, projects with lower scores can still be funded if the transportation department “provides, in writing, a rational basis for the decision.” In other words, it’s all non-binding (unless the governor insists on “irrational” transportation projects — water slides, vacuum tubes, compressed air cannons perhaps — for which he might theoretically be stymied). …
Now Governor Hogan has upped the ante further by declaring this week that repeal of the “road kill” bill will be his highest priority in the upcoming legislative session. Wow. Guess he doesn’t have much of an agenda for his third year (normally, a governor’s most productive, by the way). Here’s our prediction: There is about a zero probability that lawmakers are backing down now.
The Governor immediately fought back by posting this on Facebook:
The Governor states in the post that “The Road Kill Bill will kill 66 out of 73 transportation projects across the state,” and that the “bill was written in back rooms by lobbyists and special interests, and partisan legislators rammed it through with very little debate and without appropriate public input.”
MACo opposed the bill last session, with concerns that it may marginalize local input, overlook regional or demographic variations in transportation needs, and under-value safety as a driving factor in project approval. MACo subsequently offered amendments, which the Maryland General Assembly approved.
In a series of letters sent over the summer, the Administration sought to transfer substantial and costly responsibility for the law’s implementation to the counties. The Attorney General’s Office issued a letter advising that the new law does not authorize the Maryland Department of Transportation (MDOT) to shift analytical responsibilities to the counties. MACo sent MDOT a letter offering support in the upcoming months on developing a collaborative approach to implementing the law and drafting the regulations required by it.
We remain optimistic that the days ahead will allow a practical solution to the issues at hand – one that avoids seeing worthy projects becoming “de-funded.”
Upon the regulation’s publication in late September – regulations that Transportation Secretary Pete Rahn himself called “bad regulations” – MACo offered detailed recommendations on how the Administration could instead interpret the law in a more reasonable manner, and in a manner that is fairer to all Maryland counties. MACo suggested that MDOT offer flexibility in determining the population to be served by a project and by offering a scoring regime based upon differing project conditions and local government input, among other recommendations.
On November 18 before the Maryland General Assembly’s Joint Committee on Administrative, Executive, and Legislative Review (AELR), MACo testified to this point alongside public works representatives from the County Engineers of Maryland and Cecil, Queen Anne’s, Prince George’s, and Harford counties. Two weeks ago, AELR sent Secretary Rahn a letter stating that it was placing the regulations on hold, citing agreement with MACo and requesting that the Department
…work in a bipartisan, good faith manner with the legislature and local government officials to propose alternative regulations.
Barring further action from MDOT or the General Assembly, the regulations go into effect in February.
Just The Facts: What The Law Does
The Maryland Open Transportation Investment Decision Act of 2016, a.k.a. the “Scorecard Bill” or “Road Kill Bill,” requires MDOT to score certain major transportation projects programmed in MDOT’s capital program, called the Consolidated Transportation Program (CTP). The law requires scoring for State Highway and Maryland Transit Administration projects that cost over $5 million and that increase or improve capacity, or improve transit stations or areas.
Scores are based on 9 overarching goals (such as “Quality of Service” and “Cost Effectiveness and Return on Investment”) and 23 supporting measures (such as “the degree to which the project has a positive impact on travel time reliability”). Each goal can count for up to 100 points, for a total of 900 points. The law requires MDOT to weight each goal and each measure, and provide for a method for doing so in regulations – further altering the score. Finally, the total score is weighted based upon the “population to be served by the project” – which MDOT is also tasked with defining in regulations.
Finally, MDOT may move forward with any project it chooses, so long as it provides a “rational basis for the decision” to move forward with any low-scoring projects.
For more information about the Act and political debate surrounding it, search Conduit Street for the tag, “scorecard.”