Transportation – the Federal Role
Feds threaten state over HOV lanes

The Federal Highway Administration (FHA) recently said if the HOV lanes were opened to all traffic, the feds might withhold highway funds or demand repayment of funds. The FHA believes it has the authority to make this decision because our HOV lanes were built using a high percentage of federal money.

But, in 1975, when state lawmakers talked about using gas tax money to help plan mass transit programs as an alternative to building roads, the State Supreme Court said gas tax revenue could be spent only for highways used by consumers who pay the gas taxes, not individuals riding on a bus or other alternative forms of transportation. This decision rested on the 18th Amendment passed by voters in 1944 that requires gas tax revenues be used for highway purposes exclusively.

The constitutional question now is whether gas tax money used to build HOV lanes can be restricted to transit vehicles and drivers who have passengers in their cars.

Another question: Who are the federal officials who said lawmakers cannot open up HOV lanes and what is their authority to make that decision?

Initial press reports sounded as if this warning came from the Federal Highway Administration itself in Washington, D.C. Instead the ominous missive came from a federal official sitting in his Olympia office, just a few short blocks from our state Department of Transportation. We were shocked to discover that the feds have a rather large bureaucracy in Olympia called the Washington Division of the Federal Highway Administration.

Curious about the genesis of the opinion, we asked what prompted the letter from the Olympia FHA office to Secretary of Transportation Sid Morrison. We were told that the FHA official responded to an informal inquiry from the HOV Policy Board. The HOV Policy Board? The HOV lanes have their own Policy Board? We asked for a copy of the request and were told it was not in writing. At this date, we do not know who orally requested an FHA opinion.

Conveniently overlooked, however, is the fact that in 1998, Governor Whitman of New Jersey requested and received a waiver of federal penalties for removal of HOV lanes on I-287 and I-80. Congress also exempted New Jersey from having to repay highway funds used in the construction of I-287 non-restricted HOV lanes. Since then, California, Minnesota, Virginia and New York (Long Island) have begun a re-examination of their HOV policies.

We believe a re-examination of the federal role in transportation is required. Among the many shortcomings of the current system is that fact that federal aid comes with so many strings attached. Federal regulations, overlaid by state regulations and bureaucracy, diminish the purchasing power of our gasoline tax dollars. Federal requirements such as the Davis-Bacon Act (prevailing wage) and "Buy America" rules drive up the price of federal and state projects.

Our own Department of Transportation has its own versions of these costly requirements. Thus, even if costly federal requirements were lifted, our transportation projects will continue to be overpriced until lawmakers deal with burdensome state regulations.

Currently Washington state motorists pay the federal government 18.4 cents per gallon of gas for federal highway programs. The Federal Highway Administration and the U.S. General Accounting Office both concluded that interstate maintenance and federal land programs could be funded for less than three of the current 18.4 cents we send to D.C. Why not devolve non-core transportation responsibilities back to the states? Then the state legislature could choose to use the remaining 15.4 cents on state transportation projects or to reduce the gas tax at the pump.

Prepared by Bob Williams, Senior Research Analyst, (360) 956-3482 or effwa@effwa.org

Evergreen Freedom Foundation P.O. Box 552, Olympia, WA 98507 Phone: (360) 956-3482, Fax: (360) 352-1874 Email: effwa@effwa.org