Toll Equity Trust Blog

Inequity on the roadways

July 1, 2009
TODAY, for the first time in more than a decade, drivers coming into Boston on the Mass. Pike or through the Sumner Tunnel have good reason to celebrate when they pay their tolls — yes, celebrate.

A groundbreaking provision in the transportation reform bill signed into law Friday by Governor Deval Patrick takes a bold step toward solving an obvious inequity on our roadways.

But as leaders in the 2,000-person effort to bring equity to an unfair and unconstitutional tolling system, we see some troubling signs on the road ahead.

It has already been suggested that the “toll equity” enshrined in the law may not, in fact, be toll equity at the booth. That will not stand. The toll payers and taxpayers of Massachusetts will demand nothing less and we intend to hold our state leaders accountable.

For 11 years, drivers who use the Metropolitan Highway System (the Mass. Pike from Route 128 into Boston) and the Sumner, and Ted Williams tunnels have been subjected to an unfair tax. More than half of every dollar collected has been used not for the tolled services of those roads but to pay for the costs of the construction of the Big Dig.

This tax masquerading as a fee, felt most keenly by North Shore and Metrowest commuters, has cost toll payers nearly half a billion dollars in diverted tolls in the last three years alone. The Legislature and the governor appear to be, at long last, taking bold action meant to change that inequity.

The new law includes a provision that mandates that tolls “shall be applied exclusively to” those tolled roads. The plain words of that provision should prohibit any further diversion of tolls to pay the multi-billion-dollar debt service and the onerous operation and maintenance costs of the toll-free sections of the Big Dig, including the I-93 tunnels through Boston from the North and South and the Zakim Bridge.

On the day the governor signed the transportation bill, the Supreme Judicial Court underscored the victory by affirming the basic principles of fee fairness. The SJC’s decision in Silva v. Attleboro made it clear that fees charged by the government must be used solely for the service being offered in order to avoid taxation without representation.

All at once, the Legislature, governor, and judiciary appear to be standing up for fee fairness.

But toll payers have reason to be worried. Before the ink dried on the reform bill, Turnpike Authority Director Mary Connaughton, an outspoken advocate for toll payers, raised a serious concern about the Authority’s commitment to toll equity. Connaughton suggested that the new law may be interpreted by the Authority to mean toll dollars can be spent on the entire debt service on the Central Artery Project.

The fear is that officials will not adhere to the plain words of the toll equity provision and will continue to apply toll dollars to all the non-tolled portions of the Big Dig that are used by millions of travelers free of charge.

Such a move would not only keep the unconstitutional system in place but it would, in some cases, double the inequity - starting today. Under the new law, all tolls collected in the Commonwealth - including those on the Tobin Bridge and the Western Turnpike (from Route 128 west) can be used for any transportation purpose on any state roadway.

Unless the toll equity provision is followed, all tolls collected could be diverted to pay for the multi-billion-dollar Big Dig debt still outstanding and a whole new, much larger group of toll payers will be victimized.

We must not let that happen. We must demand that our leaders follow the plain words of the Constitution and the toll equity law. We must continue to insist that our leaders sit down to resolve the past inequity. Only then will anyone be able to say we ended, at last, the Big Dig culture that for too long has inequitably taxed the toll payers.

Jan Schlichtmann is lead attorney for the Massachusetts Turnpike Toll Equity Trust lawsuit and Sandra Murphy, a nurse from Natick, is the lead plaintiff and a founding member of the trust.
© Copyright 2009 Globe Newspaper Company.

Listen to Jan Schlichtmann on WRKO AM680 discuss the new transportation bill that includes toll equity, and the reform that the new law represents.

Also, check out the The Daily Item article, “Transportation plan holds off immediate cost hikes”.

“We are pleased that the Turnpike Authority has clearly established to the Court that it has a stunning amount of assets, in excess of $7 billion, which are more than sufficient to repay toll payers who have unfairly borne the burden of the Big Dig. Our case will now proceed on its central premise that the current tolling system is clearly inequitable and must be fixed—we will be moving to establish a class and begin discovery next week. At the same time, it is critical that the Legislature and Governor Patrick show true leadership now by including toll equity in the transportation reform package expected next week.”

- Jan Schlichtmann

Scott Harshbarger and Jan Schlichtmann sit down with WGBH Greater Boston’s Emily Rooney.

Additionally, a Marblehead Reporter editorial quoted Representative Lori Ehrlich:

“The Principles at the core of this lawsuit such as fairness, equity and potentially unlawful taxation are what I have been discussing since last fall’s announcement that tunnel tolls were going to double to $7,” Ehrlich said after the hearing. “This inequity, which is literally putting jobs out of reach for people in our region, was set up in 1997. Attempts to finally fix it are playing out in all three branches of government.”

Jan Schlichtmann talks with Tom and Todd about Monday’s pretrial hearing.

Channel 5’s Pam Cross reported on the Toll Equity suit, “Pike Users Strike Back, File Tolls Lawsuit”. Be sure to check out the great video coverage on the site.

Jan R. Schlichtmann, the attorney who gained fame battling a chemical company and ended up as the main character in a Hollywood movie about the case, is leading a team of lawyers filing the suit that includes former state Attorney General Scott Harshbarger and former Gov. Mitt Romney counsel Daniel B. Winslow.

The class-action lawsuit includes 1,650 plaintiffs from 21 states who say tolls are supposed to be used for the use of the Turnpike rather than the $13 billion Big Dig project.

The lawsuit, filed in Middlesex District Court, asserts that 58 percent of tolls collected go to paying for Big Dig roads.

To pay for the returned tolls, the state would have to choose between raising taxes, imposing tolls on Interstate 93, or requiring the Turnpike Authority to sell some of its real estate, the Boston Globe reported.

Scott Harshbarger and Jan Schlichtmann talk to NECN in their feature “Lawsuit against Turnpike gains momentum”

Tom and Todd interview Jan Schlichtmann and discuss suing the Pike on WRKO.

Jan also sat down with Steve Brown of 90.9 WBUR. Listen to the interview or read the summary here.