Fate of P3 Bills Decided in the Senate

The 2021 Maryland General Assembly

January 13 - April 12, 2021 marked the 442nd session of the General Assembly. During this session, 2,347 bills were introduced (967 in the Senate and 1,380 in the House) and 817 were passed.

The year was remarkable because of the logistical challenges the coronavirus pandemic presented to lawmakers. Normally, the public would have free access and face-to-face contact with legislators. During this session, essentially all communication was digital and remote and subcommittees and hearings were streamlined. When voting sessions of the Senate and House were held in the two chambers, as required by the Constitution to enact legislation, members were stationed in plexiglass booths. 

.For information on the Maryland General Assembly legislative process, refer to our January 31, 2021 newsletter.

General Conclusion

For the past three sessions of the Maryland General Assembly, the Maryland Senate, and more specifically the Senate Budget and Taxation Committee, have failed to give a favorable report or approve any bill that would place additional scrutiny, oversight, or accountability on the proposed I-495/I-270 toll-lane public-private-partnership (P3) or any future P3. This includes the bills described below, as well as the “County Consent” bills introduced in 2019 and 2020 (SB 229 and HB 292), with 70 sponsors and co-sponsors, which would have prohibited the State from constructing “any toll road, highway or bridge without the express consent of a majority of the governments of the affected counties.”

On the House side, Delegate Kumar Barve’s Environment and Transportation (ENT) Committee has a pivotal role in the consideration of P3 bills. During last year’s short session, which adjourned early because of the pandemic, the ENT Committee gave its approval to the P3 bills sponsored by Delegates Korman and Solomon too late for full consideration in the Senate. This year, the ENT Committee gave the Korman and Solomon bills, HB 067 and HB 485, a favorable report and sent them to the House of Delegates for approval even later in the session, on March 19, just in time to meet the crossover deadline on March 22. More details on these and other bills introduced in the 2021 session are provided below.

Proposed Bills 

The Promises Act (HB 067/SB 843)  

Bill Summary:  HB 067 and its companion bill, SB 843, would have put in statute the promises the Administration, including the Maryland Department of Transportation (MDOT), has made regarding the I-495/I-270 toll lane project. The bill would have prohibited the Board of Public Works (BPW) from approving an agreement for the P3 project unless the agreement contained specific language, including that no taxpayer funding would be used to subsidize the project, at least 10% of toll revenue would be made available for transit, no P3 agreement would be submitted to the BPW until the final environmental impact statement (FEIS) was completed, and other requirements.

Activity: A similar bill had been introduced by Del. Marc Korman in 2020 and passed by the House but no action was taken in the Senate before last year’s early adjournment because of the pandemic. Del. Korman pre-filed HB 067 for the 2021 legislative session. A hearing was held on HB 067 in the House ENT Committee and it received a favorable report. The amended bill was then passed by the House of Delegates by a 101-35 vote but died in the Senate Budget and Taxation Committee. Del. Korman said it was too soon to say if he would reintroduce the bill in the next session.

The P3 Reform Bill (HB 485/SB 361)

Bill Summary: This legislation would have strengthened the process for reviewing large P3 projects by assessing economic, legal, and technological risks to the State. It would not have been retroactive or apply to the I-495/I-270 P3 but it was an important bill for ensuring oversight of future P3 agreements. Among other requirements, the bill created an independent P3 Oversight Review Board, set new standards for financial and project disclosures for P3s, and required a financial advisor to assess any potential effect to the State’s credit rating.

Activity: Del. Solomon had previously introduced legislation to strengthen the process for reviewing large P3 projects. HB 485 was similar to a bill passed by the House of Delegates in 2020 but too late for Senate consideration before the legislature adjourned. HB 485 was heard by the House ENT Committee and received a favorable report. The bill was passed with amendments by the House of Delegates, 97-39. HB 485 as amended was referred to the Senate Education, Health, and Environmental Affairs (EHEA) Committee, where it received a favorable report, and to the Senate Budget and Taxation Committee, where it languished until the end of the session. Del. Solomon said he will seek changes to the P3 law for a fourth time during next year’s legislative session.

Protecting Cultural Heritage Sites from P3 Highway Projects (HB 1373/SB 960) 

Bill Summary: The Order of Moses was a post-Civil War benevolent society set up by formerly enslaved individuals. The Morningstar Moses Cemetery in Cabin John, considered historically significant by the Maryland Historical Trust, was established in 1885. The proposed widening of the Capital Beltway as part of the I-495/I-270 toll-lane project would encroach on this historic community, the cemetery, and burial grounds. This legislation would have prohibited acquiring a right-of-way or exercising eminent domain for a P3 highway project that adversely affects historic African-American cemeteries, burial grounds, and cultural heritage sites unless the General Assembly approves the project. It would grant stronger legal protecion to vulnerable communities in the path of major P3 highway projects.

Activity: HB 1373 and its companion bill, SB 960, were introduced too late in the session to expect full consideration and approval by both houses. However, SB 960 was granted a hearing in the Senate EHEA Committee in the final days of the session. The proposed legislation and advocacy efforts on its behalf raised the awareness of State policy-makers and the public to the threat posed by the proposed I-495/I-270 toll-lane P3 plan and the dire consequences that could result from implementation of massive P3 highway projects.

Prohibition on Adding New (Toll) Lanes on I-270 or I-495 (HB 703 and HB 705)

Summary of HB 703:: HB703 would have prohibited the State Highway Administration from adding any new lanes to I-495 or I-270. The bill received an unfavorable report in the House ENT Committee.

Summary of HB 705: HB 705 would have prohibited the Maryland Transportation Authority, or a private entity participating in a public–private partnership, from imposing a toll for the use of I-495 or I-270. A hearing was held in the House ENT Committee but no vote was taken.

Legislative Review of the Developer Phase 1 P3 Agreement

Under State law, the BPW may not approve a P3 Agreement until the budget committees of the General Assembly have had at least 30 days to review and comment. Although the legislature is no longer in session, there will be a formal review of the predevelopment agreement by the Senate Budget and Taxation Committee and the House Appropriations Committee.

The review is expected to include a public hearing, witnesses, and analysis by legislators and their staff. The review is purely advisory; the legislature has no authority to stop the project. However, a legislative hearing can be an important opportunity to bring transparency to critical aspects of the P3 in a public forum. Relevant information, such as the potential financial risks, procurement irregularities, unresolved environmental concerns, and the terms of related interstate agreements could be disclosed and receive media attention before final contract decisions are made. 

Important New Official Letters

Reports, testimony, and correspondence among area politicians and stakeholders can be found on the Dontwiden270.org website “On the Record” tab. Two new letters of note:

City of Rockville letter to Comptroller Franchot:

The Mayor of Rockville and City Councilmembers stated their support for the No-Build Alternative, questioned the outdated travel demand model used to project 2040 travel volumes, and cited numerous other concerns about the toll lane project. They urged Mr. Franchot to vote NO when the approval for the Phase 1 Predevelopment Agreement comes before the BPW.

Maryland-National Capital and Planning Commission (M-NCPPC) letter: 

The M-NCPPC sent a “non-concurrence” letter to the Federal Highway Administration and the State Highway Administration objecting to the Recommended Preferred Alternative for the Managed Lanes Study. The letter states that there are many concerns with the DEIS that must be resolved before the study advances.

Must Read Article

Key Vote on Hogan’s D.C.-Area Highway and Bridge Plan Is Delayed Again, Maryland Matters, April 21, 2021

Appendix 1

Keeping the Pressure on Peter Franchot; Reaching Out to Pete Buttigieg and the DOT

Peter Franchot, the deciding vote on the Board of Public Works (BPW), recently said the I-495/I-270 toll-lane project, the biggest Public Private Partnership (P3) in the world, is basically just an experiment to “see how it goes” and see if there’s “any real uproar over the tolls.” Follow the Action Item below to remind Mr. Franchot of his responsibility to protect Marylanders, not international developers.  Then read the good news about Congressman Anthony Brown’s appeal to U.S. Department of Transportation (DOT) Secretary Pete Buttigieg to stop the toll-lane project’s end run around federal environmental law, followed by a cautionary tale about P3 construction in Virginia.

Action Item 

Write Comptroller Franchot care of Emily Gontrum at egontrum@marylandtaxes.gov and/or call Comptroller Franchot at 301-332-1961. This is his cell phone and he said in a recent interview that he invites the public to contact him at this number and leave a voice mail or text.

The Maryland Department of Transporation (MDOT) won’t complete the environmental review process until next fall. Tell Comptroller Franchot that he and the BPW must delay the vote on the first toll-lane contract until the Final Environmental Impact Statement (FEIS) is completed. An FEIS is essential to assess the true cost to taxpayers and the impacts on communities and the environment. Until the FEIS is released, it is impossible to truly know the effects of many key features of the proposed P3 project.

The next steps in the approval process for the first contract, the Developer Phase 1 P3 Agreement, include: review and approval by the Maryland Transportation Authority (MDTA) Board, review -– but without approval authority -- by the budget committees of the Maryland General Assembly, and then a vote by the BPW.

If approved by the BPW, the Phase Developer contract would be awarded and Accelerate Maryland Partners, the awardee, notified to proceed with the preliminary design and some form of collaboration with community stakeholders. There are many fiscal concerns about this project that will affect the State and Maryland taxpayers. Read more in the Dontwiden270.org April 5, 2021 newsletter.

Congressman Urges Federal Review of the I-495 and I-270 Project 

U.S. Representative Anthony Brown from Prince George’s County and a member of the U.S. House Transportation and Infrastructre Committee, sent a letter on February 2 to DOT Secretary Pete Buttigieg. According to Rep. Brown’s press release, the letter detailed concerns with Maryland’s I-495 & I-270 Managed Lanes Study. He specifically identified the following issues for consideration:

• Lack of Transit Alternatives and Investment

• Outdated Approach

• The Impact of COVID-19 and the Future of Commuting

• Incongruent National Environmental Policy Act (NEPA) process

The Congressman encouraged the DOT to consider the implications of the project on the region and reevaluate the federal government’s role. The U.S. DOT has responsibility for oversight of interstate highways and is required under the NEPA Act to approve the FEIS. 

Rep.Brown’s letter can be found here. 

For more information, see Congressman Urges Buttigieg to Review I-495/I-270 Project.

Rep. Brown and Montgomery County Council President Tom Hucker held a press conference on April 12, including discussion of transportation priorities. They affirmed that the State needs the right mix of roads and rails and not just expansion of road capacity.

Why We Are Fighting to Prevent What’s Happening on I-66 in Virginia from Happening to Us

Tolls have existed for centuries, initially levied on those travelling by foot, horseback, or wagon and continued with automobiles. Currently, about 29 states have toll roads, with price-managed toll lanes in 11 states. Most roads are built with funds raised from taxes. However, in recent years, states have increasingly looked to private companies to build toll roads and capture the tolls for profit.

The construction of new toll lanes on I-66 in Virginia is wreaking havoc on local communities and raises concerns about the possibility of similar consequences in Maryland if the I-270 managed lane project goes forward. The following depicts current construction on I-66 and demonstrates why we must prevent this from happening in our communities.

I-66 Inside the Beltway Express Lanes

The I-66 “Inside the Beltway Express Lanes” cover 9 miles of I-66 from I-495 to US Route 29 in Rosslyn. This section began operation in December 2017, operating under dynamic tolling with tolls varying depending on traffic congestion. Its express lanes operate at rush hour with no maximum toll. Tolls have been as high as $46, a totally inequitable price. The Virginia Department of Transportation owns and operates this corridor. 

Transform 66 Outside the Beltway Express Lanes Project

In December 2016, a 50-year P3 contract was awarded to I-66 Express Mobility Partners (lead project developer, Cintra) to design, build, and operate I-66 from I-495 to Gainesville. This project will extend I-66 another 22.5 miles west from the Capital Beltway. Early construction activity began in December 2017 with major construction beginning in spring 2018. The express lanes are scheduled to open in December 2022. Two dynamically tolled express lanes will operate alongside three untolled general purpose lanes per direction.

Recently, a Montgomery County resident drove near the area where construction is ongoing for the I-66 “Outside the Beltway Express Lanes” project. She reported the following:

I happened to drive on Route 66 in Virginia all the way towards the end, near the Front Royal exit. It was shocking, truly shocking, to see the construction as they are adding even more lanes to I-66. The amount of construction vehicles, road construction materials, massive hills of dirt, pipes, etc., etc. was overwhelming.  I’ve never seen anything quite like it. The construction and new barrier walls being constructed are literally in people’s backyards.  Or up against their garages, houses, apartment buildings, pools, walking paths, and parking spaces - within a few feet. There was absolutely no buffer zone between the soon to be new lanes and personal or county property. 

After reading this description, a Rockville resident drove over to photograph the construction area. The photos depict what life is like for those who live in the shadow of this project. We can’t let this happen here!

Must Read Recent Articles

Opinion: Protecting a Piece of Md. History From the State’s Beltway Expansion Plan, Maryland Matters, April 9, 2021

Md. Sierra Club: Will the Senate Co-Own Hogan’s Highway Boondoggle?, Maryland Matters, April 9, 2021

Plan to widen congested Capital Beltway fuels fierce debate, Bay Journal, April 5, 2021

Note: Key articles about the highway widening project dating back to August 2018 can be found on our website at https://dontwiden270.org/archives, 

THE DEVELOPER PHASE 1 P3 AGREEMENT

Three years ago, Governor Larry Hogan announced his I-495 & I-270 Public-Private Partnership (P3) Program. The project would add toll lanes that private companies would design, build, operate, and collect tolls through a 50-year contract with the State. The Maryland Department of Transportation (MDOT) is rushing ahead with this complex, ever-changing process.

The entire P3 consists of more than 70 miles and encompasses all of I-270 and I-495 in Maryland, as well as the American Legion Bridge. The first phase of the project, known as Phase 1 includes the 37 miles section from the American Legion Bridge to I-270 and I-270 to I-70.

On Jan. 27, 2021, MDOT announced it had selected a preferred alternative from its list of build options. Ten days later, on February 18, 2021, MDOT and the Maryland Transportation Authority (MDTA) announced the selection of Accelerate Maryland Partners, LLC, to be the Phase Developer to oversee the predevelopment work of the Phase 1 P3 project. Refer to our February 21 newsletter for more information about the Accelerate Maryland Partners consortium and its team of companies. 

The next steps in the approval process of the Developer Phase Agreement include: review and approval by the MDTA Board, review by the budget committees of the Maryland General Assembly, and approval by the Board of Public Works (BPW), although not necessarily in this order. The BPW has the final decision. If approved by the BPW, the Phase Developer contract  would be awarded and Accelerate Maryland Partners notified to proceed with the preliminary design and collaboration with community stakeholders.

The final design for Phase 1 is slated for release by May 2022. The BPW must then approve a construction contract, which might occur in summer 2022, with construction possibly beginning around fall 2022. These dates may change because of both internal and external factors.

Action Item

Write Comptroller Franchot care of his point staff person, Tom Brennan, at tbrennan@marylandtaxes.gov. and/or call Comptroller Franchot at 301-332-1961. This is his cell phone and he said in a recent interview that he invites the public to contact him at this number and leave a voice mail or text.

Write Treasurer Kopp c/o her BPW liaison, Joanna Kille, at jkille@treasurer.state.md.us.  

Write Governor Hogan at https://governor.maryland.gov/contact-the-governor/.

Tell them:

• No P3 agreement should be approved by the BPW until the Final Environmental Impact Statement (FEIS) is completed. An FEIS is essential to adequately assess impacts to communities, utility conflicts, the environment, and parklands—and the 3,000 comments submitted during hearings on the project. 

• Governor Hogan’s statements that there will be no cost to Maryland taxpayers is false. In fact, Maryland taxpayers could be stuck with hundreds of millions of dollars in expenses and future costs. See our February 7 newsletter for more information on financial concerns. 

• Refer to the recent article in the Washington Post about high-profile problems with P3s across the country. 

Please help us generate even more emails to Peter Franchot. His vote on the BPW is likely to decide whether this project continues to move forward—or not. If you belong to a homeowners association or civic association, please ask your group’s leaders to distribute this flyer to members. Thank you!

Important New Information from the Comptroller

On March 10, Comptroller Peter Franchot gave an interview (listen here, read more here) on the “Everyday Law” podcast in which he made some startling comments:

• According to Comptroller Franchot, only the first phase of the 495-270 P3 is still on the table. He said, “There is no longer a Beltway widening project. There is no phase 2 or 3. It does not exist.

• He claimed the P3 is now a $2 billion project, as opposed to the $12 billion project that would have included the Beltway.

• He referred to the Phase 1 project as “experimenting with P3s.”

There has been no response from MDOT concerning these comments.

What is the Role of the Maryland Transportation Authority?

The MDTA is an independent State agency, which was founded in 1971 and is responsible for constructing and operating Maryland’s toll facilities. By State law, MDTA has the responsibility to fix, revise, and set toll rates. All of the MDTA’s projects and services are financed by toll revenue.

Currently, MDTA’s tolling system covers more than 775 road miles of major highways.

On Feb. 25, 2021, MDTA staff provided an update on range setting information for Phase 1 South prior to a Board meeting when the official MDTA staff proposal will be presented. The statutory public comment period will open and be advertised following Board approval to seek public input on the official staff proposal.

MDTA had planned to vote on the predevelopment contract on March 25. However, the vote was delayed because the Maryland Attorney General is reviewing a legal challenge filed by an unsuccessful bidder for the contract. Several steps by State officials remain before the protestor can begin court proceedings.

According to State law, the BPW could proceed with executing the contract if necessary to protect substantial State interests although it is unclear specifically what such State interests entail. The next MDTA Board meeting is scheduled for April 29.

What Impact Can the Maryland Legislature Have?

Under State law, the BPW may not approve a P3 Agreement until the budget committees of the General Assembly have had 30 days to review and comment. However, the legislative review is purely advisory and has no authority to stop the project.

MDOT must formally submit the Predevelopment Agreement (PDA) to the legislature before the 30-day review can begin. Members of the Senate Budget and Taxation Committee and the House Appropriations Committee will review the Phase 1 PDA. The House Transportation and Environment Subcommittee (Chair, Marc Korman) is expected to take a leading role in the review. Delegate Korman plans to arrange a public hearing, call witnesses, and allow public testimony.

It is unknown when MDOT will send the Agreement to the legislature — either concurrent with, or before the votes by the MDTA and BPW. The legislature is scheduled to adjourn on April 12, but does not have to be in session to complete the legislative review. 

Legislative hearings could be an important opportunity to obtain relevant information before final contract decisions are made, bring transparency to the State’s plans, and identify potential risks, flaws and the project’s rationale, in a public forum covered by the press.

How Does the Board of Public Works Enable the Project to Proceed?

Maryland’s BPW was created in 1825 and subsequently modified in 1864. Its role is to ensure that State expenditures are necessary, fiscally responsible, fair, and lawful. There is no other state with a similar administrative body. 

The Board reviews projects, contracts, and expenditure plans for state agencies. It is responsible for appropriating funds for most contracts exceeding $200,000. The BPW currently reviews about $440 million in proposed contracts every two weeks.

MDOT must obtain approval from the BPW for a contract with the Phase Developer to begin predevelopment design. For the project to move forward, two of the three BPW members must approve the agreement. The three members are: Comptroller Peter Franchot, Treasurer Nancy Kopp, and Governor Larry Hogan.  Plans are for the BPW to vote on the Phase 1 South predevelopment proposal in April or May.

Update on the Bill to Protect Historic Cemeteries from Destruction by P3 Highway Projects

Senator Susan Lee and Delegate Sara Love have introduced companion bills SB960 and HB1373 (Highways-Public Private Partnerships-Cultural Preservation) to protect historic African American cemeteries, burial grounds, and cultural heritage sites from encroachment or destruction by proposed highway P3 projects that have not been approved by the State legislature. 

A prime example of a threatened site is the Morningstar Moses Cemetery and Hall in Cabin John. The proposed widening of the Capital Beltway with four new toll-lanes could have dire consequences. This community has already been the victim of injustice in the early 1960’s when the original construction of the Beltway split the community in half. This bill would help prevent a further injustice, by requiring both houses of the General Assembly to approve a highway P3 project before the State could acquire right-of-way that encroaches on this site and others like it.

 Additional background information was included in the March 20th newsletter about the cemetery and its potential destruction by the proposed highway widening as part of the I-495/I-270 toll-lane project. 

SB960 has been referred to the Senate Education, Health and Environmental Affairs (EHE) Committee and the Senate Budget and Taxation Committee. We are hopeful that the bill will be scheduled for a hearing in the final week of session so we can increase the awareness of State policy-makers and the public to the imminent threat of destruction that this P3 poses to vulnerable communities in its path.

Action Item:

If you agree that this bill deserves consideration in the remaining days of the 2021 session, please write your legislators and urge them to request a hearing on SB960 in the Senate EHE Committee.

To view a video about the history of the cemetery and submit a form to tell your legislators to protect African American Cemeteries under threat by widening I-495 and I-270, go to:
Protect Historic African American Cemeteries Under Threat from Highway Expansion

Must Read Article

Maryland explores tightening law on public-private partnerships amid proposal to build new toll lanes, Washington Post, March 27, 2021

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