Hold Those Tolls! Lege leaves question:
How will we pay for roads?

July 27, 2007

BY LARRY SCHOOLER /  THE AUSTIN CHRONICLE

It was Dec. 16, 2004, and Rep. Mike Krusee, R-Round Rock, was sitting pretty. He was virtually a guest of honor at a meeting of the Texas Transportation Commission, across the street from his Capitol office. A little more than a year before, as chairman of the House Trans­port­ation Committee, Krusee had successfully carried the behemoth House Bill 3588. Among its many and complex provisions, the bill helped smooth the way for Gov. Rick Perry to get the Texas Transportation Commission to approve early plans for the Trans-Texas Corridor. Stretching from Mexico to Oklahoma, the corridor would be a mammoth transportation project running parallel to I-35. As conceived, it would include free and tolled highway lanes, as well as rail and utility lines, and would be built and maintained by the privately held Spanish company Cintra (an international operator of toll roads and car parks) and the San Antonio-based Zachry Construction Corp.

At the Texas Transportation Commission meeting, attended by the governor himself, Krusee didn't say much. Actions spoke louder than words -- and on this day, the commission was acting on a project he had fought long and hard to convince legislators to support. By way of acknowledgment, commission Chairman Ric Williamson duly praised Krusee for his work at the Capitol. Krusee had a flight to catch, but first he took the floor for a brief stroll down memory lane.

"I started thinking about the first time that I met Ric Williamson," Krusee recalled, according to a meeting transcript. It was 1992, and Krusee had just been elected to the House; then-Rep. Williamson invited the 32-year-old Krusee to his apartment. "So I went over there, and Ric had one of his good friends over there, and that was the night I met Rick Perry, who was the ag commissioner, and we talked long into the night about accomplishing great things for Texas, about how to be a great leader for Texas. And we weren't thinking about how to be on Texas Monthly's 10 best [list] -- but you know, Ric, I think we were talking about days like this.

"And you know, governor," Krusee continued, "A little over two years ago when you made that presentation [about the Trans-Texas Corridor] in the auditorium at the Capitol, and I was in the audience, and like everybody else out there, I didn't really fully grasp what the hell you were talking about." The audience laughed.

"You do now, don't you?" asked Perry.

"I do now," Krusee replied. "And I want to congratulate you on your vision and your leadership, and the commission and your staff on your hard work, because you have made this, I think sincerely, the most historic day in transportation, not just for Texas, but for the United States since Eisenhower." With that, Krusee left the meeting.

Flash forward nearly 21/2 years -- to May 2, 2007. Chairman Krusee stood on the House floor, without a single transportation ally. Every House member present, except Krusee alone, voted in favor of HB 1892, which included a two-year moratorium on many of the public-private partnerships such as the one the Texas Department of Transportation had developed with Cintra-Zachry to build the Trans-Texas Corridor. "Who knew that trying to reduce congestion could be such a lonely fight?" wondered Coby Chase, who monitors the Legislature for TxDOT.

Perry eventually vetoed HB 1892, but a nearly identical Senate substitute, Senate Bill 792, later handily passed both the House and Senate, and Perry signed it into law. The massive bill forbids TxDOT from negotiating a tolling agreement with a private company until Sept. 1, 2009, exempting some projects already under­ way. Even among those exempted projects, some got swept up in the post-session, anti-privatization maelstrom. For instance, at its June meeting, the Texas Transportation Com­mission awarded a contract for the State High­way 121 project (in the Dallas/Fort Worth Metroplex) to the North Texas Tollway Authority -- after initially awarding the contract to Cintra.

SB 792 also states that if a company paid TxDOT money up front for the rights to build a toll road in a particular region, TxDOT must use that money on other projects in that region. It requires TxDOT to give local tolling agencies preferential treatment over private companies by giving them free right-of-way and the right of first refusal on building toll roads. In essence, the Legislature left private companies interested in transportation on the bench for the next two years.

Politics or Policy?

So what happened? How could Rep. Krusee, four years earlier, convince all but three members of the House to approve legislation that enabled private companies to build highways, only to find that entire concept rejected out of hand this year? Not surprisingly, it depends on whom you ask.

"What happened was," Krusee said after the session, "TxDOT was going not just against the traditional rural opposition to road building but against Dallas and Houston in a turf battle over who would build the roads." In Dallas, Houston, Austin, and elsewhere, public toll-road authorities were getting outgunned by private companies like Cintra, and they weren't happy, Krusee says, so they asked their legislators to give tolling authorities right of first refusal. Krusee didn't take it personally that he seemed to be the only member of the House who wanted private companies to continue building roads. "I think it was a political vote," he said. "Members thought it was necessary to vote that way to get votes back home; they felt like they'd be criticized for voting against it."

Chase agrees with Krusee and points to the larger political context. "During this last election cycle, we had a candidate for governor; she liked to campaign against foreigners and against toll roads," Chase explained, in reference to gubernatorial candidate Carole Keeton Strayhorn, who ran against Perry as an independent. "And then we had the [federal] Dubai Ports issue, and this was such a misleading discussion in the public. ... This Dubai company wouldn't own any port; they were just going to run them, and the government would lease it to them. Then Cintra becomes the successful proposer on the corridor and ... it kind of kick-started the 'no foreigners doing business in Texas' discussion."

But David Stall, of the anti-Trans-Texas Corridor group CorridorWatch, has a less benign explanation. Stall says legislators belatedly did their homework on public-private partnerships. "The Legislature did not recognize the shift in transportation policy that they were creating" in 2003, Stall said. "We started to see some handwriting on the wall in 2005, with some moratorium bills that didn't go anywhere. The reason they didn't go anywhere was we were still educating people. I think if legislators were educated in 2003 on what the corridor was, if they had understood it, they would not have voted to authorize its creation."

Looking for Consensus

Enter former Austin mayor and freshman Sen. Kirk Watson. Watson wasn't around in 2003 for the original vote on the corridor and agreements with private companies to build toll roads. But he came to the Lege with voices ringing loudly in his ear -- those of his new constituents. "Part of the reason there is this vitriolic, partisan [no-toll or toll] debate is that we haven't had a thoughtful, systematic, transparent means of analyzing what we want to do," he says. "There are clearly two agreements in this community -- one, we are too badly congested, and two, we want it fixed. When we get to three -- how to do it -- now it's not as unanimous."

Watson is unconvinced that letting a private company pay for, build, and make a profit on a new road is the best way to go. "I was skeptical of these comprehensive development agreements -- how long they were, their noncompete clauses. ... I happen to be a believer that if you're going to privatize, it should be for the stuff the public can't get done. I wasn't convinced -- at beginning or end of session -- that we weren't going to just have privatization on stuff that we couldn't get done in the public sector."

In other words, Watson didn't want profit-minded private companies building roads that could be built by government -- especially if, under noncompete clauses, the state has to pay the companies back for highways that take traffic (and potential income) away from the private toll roads. "I wanted to allow local communities to have more say," Watson explained. "It struck me that one of the things that was missing in the process was we needed more accountability in the system, and that probably meant elected officials having a role." That potentially means fewer deals with private companies and more for state tolling authorities or transportation commissions.

Watson had more than just his own rookie legislative voice to add to the discussion -- in January, he became chairman of the Capital Area Metropolitan Planning Organization (the group in charge of the region's transportation projects) and vice chairman of the Senate Transportation Committee. At his suggestion, CAMPO indefinitely postponed any talk of a second phase of toll roads until it can take more time to sort out how best to finance transportation projects.

But the Legislature's decision to halt most road-building agreements with private companies leaves Central Texas in a bind, as Krusee sees it, when it comes to decongesting traffic. "To my mind, the bad thing about what the Legislature did this session was it took that option away" -- the option to have a private company get started now on building a given road. The Legislature's action doesn't mean that Austin or the surrounding jurisdictions can't build any more toll roads, but it means they can't call on a private company to do so. So as Krusee sees it, we're back at ground zero: Lacking sufficient up-front public funding, the state, via TxDOT, had been looking toward private companies as ideally positioned to help build roads quickly and efficiently, based on the promise of future toll revenue. Now that option is off the table, at least temporarily.

With toll roads built by private companies, says TxDOT's Chase, "You [the state] give up some future revenue to get a project now. You get a guaranteed price on the project, you are guaranteed the project will be returned to you in a certain condition, and the price you pay is you say the company can realize a profit on this over a certain amount of time. Some people had concerns of unlimited company profits without ever reading what the contracts were -- the companies can't raise tolls any time they want. If the profits get to a certain point, it goes back to the region to build more roads."

Often, as was the case with Cintra and the Trans-Texas Corridor, the company pays a large sum -- generally billions of dollars -- to buy the rights to build a road, which could mean the state could get other projects started more quickly using those advance funds.

Even Watson, skeptical as he is that a private company can handle transportation any better than the state, admits that a moratorium on deals with private companies could make it harder to do anything significant about area congestion for the next couple of years. "We're going to need to be honest about limitations of financing tools," he says. "In the state appropriations bill, there was an effective decrease in transportation money, when you consider inflation. There has been more moving of funds from transportation. Many people say they want an increase in gas tax; the House approved a gas tax holiday that would have taken away gas tax money for three months out of the year [that measure died in the Senate]. The money offered to states from federal government is being decreased; we just got notice that federal money rescinded $72 million more. We're going to have to start being honest about the limitations we have on being able to meet the need to fix the problem."

Stranded on the Highway

To that end, Watson has been meeting every two weeks with a CAMPO's Mobility Finance Task Force, which includes elected officials, outside transportation experts, even the executive director of the Community Partnership for the Homeless. Meanwhile, TxDOT has given preliminary approval to a set of toll projects in the Austin area, including some "managed lanes" (for use, say, by carpoolers or during rush hour) as well as the second phase of toll roads Watson doesn't want to talk about for now. TxDOT is also holding a series of public meetings later this year to explain the ramifications of what the Legislature did in suspending many of the proposed deals with private companies.

"We're doing things that no other department of transportation is doing," says Chase. "We're learning it as we go, and we have never ever had to engage the public on this large a scale in our 90-plus years of existence. And in many cases, we underestimated that challenge."

That last sentiment could also apply to those who want to do something about Austin's traffic congestion. If the Lege managed to placate the anti-toll crowd, at least for the time being, it didn't do much to make it any easier to travel on Central Texas highways, nor to address long-term projections that show regional traffic only getting worse. More broadly, the moratorium doesn't begin to address larger questions raised by traditional highway approaches to transportation: land use, mass transit options, pollution and global warming issues, or even integrated urban planning that might make transportation issues less intractable and expensive.

Those are the kind of issues that Sally Camp­bell hoped the Legislature would consider. Campbell is the executive director of Envision Central Texas, a 6-year-old nonprofit coalition aimed at addressing regional growth. Campbell wanted to hear more discussion and action on giving counties more control over land uses around future highways and relocating Union Pacific away from rail lines that commuters could use. "When we truly want to see this multimodal transportation system develop, the next step is to look at the transit options. And right now, we're trying to figure out what will work and what's the logical system. If you can think about commuter rail from San Antonio to Georgetown by relocating Union Pacific, that makes a whole other mode within the realm of possibility."

But rail relocation, and most other proposals for broadening the state's transportation options, remained stuck at the station during the 80th Legislature. What most legislators wanted to discuss was how to pay for new roads and where to put them. Whether Krusee's interest in more privatization or Watson's desire for greater accountability in transportation policy ultimately win the day in the current discussions, it could be two years -- or more -- before getting around seems much easier, even though commuter rail could start running through the region by the end of 2008.

That will be just in time for the 81st Legislature -- and a whole new set of political detours during the next round of transportation debates.