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Op-Ed: Ft. Thomas Councilman Examines Legality of Tolling Brent Spence Bridge

Disclaimer: Information presented herein is solely the opinion of the author who makes no warranties to the completeness or accuracy of this article.  Readers should not rely solely on this information to make legal or financial decisions.
One would assume that the Brent Spence Bridge (BSB) tolling plan proposed by Governor’s Beshear and Kasich would be completely within the rights of the two States should they get their respective legislators to act.  After all, toll roads are everywhere.  And many provide some sort of discount to locals or frequent users. This is true. And legal challenges to such arrangements are routinely upheld by courts.  But the BSB may be different.  
You see, the U.S. Constitution’s Interstate Commerce Clause enumerates to Congress the power “To regulate Commerce [] among the several states”.  Through this power, congress has created a general prohibition on tolling of roads and bridges that use Federal aid. As usual, there are exceptions. 23 U.S.C. 129, for example, authorizes tolling on “reconstruction of a [previously] toll-free bridge”. However, the same statute also provides that tolling is permissible on “reconstruction of a [previously] toll-free Federal aid highway [except for] …a highway on the Interstate System”. Interstates 75 & 71 are on the Interstate System.  Thus, per the statute, to toll the BSB project, it appears the tolls must only be located on the bridge itself.
Ok, so we’re good, right, we just can’t toll on either side of the bridge?
Well, not quite. The above authorization statute is still subject to any constitutional limitations. That Commerce Clause we discussed… well, it provides some limitations. The clause prohibits a state from passing legislation that improperly burdens or discriminates interstate commerce. Burdens or discriminates…Discriminates or burdens. Courts have specifically looked at tolling as applied to the commerce clause. In general, Courts have stated that if a toll policy discriminates against commerce, it is basically invalid automatically. But if it merely provides a burden, then the court will look at the reasonableness of the burden and weigh it against the benefit received, a much easier standard to satisfy.  
So how do we determine whether a toll policy discriminates against interstate commerce or merely burdens interstate commerce—they seem so similar? Actually, the distinction can be quite clear. All things being equal, if the toll policy places one state’s residents at an economic advantage over another state’s residents, then it discriminates and is invalid.  If it does not, it merely creates a burden and so long as that burden is reasonable in relation to its benefit, it will be upheld.
Virtually all the cases I’ve read have been of the latter variety.  That is, they were toll roads or bridges, typically in the middle of the state or at least not on state borders, primarily affecting intrastate (within a state) as opposed to interstate travel (between states).  Sometimes they had some sort of “local discount” for residents or frequent users of the city where the bridge was located. Although there was a burden, the circumstances were not present where, all else being equal, they resulted in economic discrimination against another state’s residents to the advantage of its own.
So how might that play out with tolling the BSB? Well, as we discussed above, the toll locations have to go on the bridge—a bridge, I remind you, that literally connects two states. They can’t place them say, 15 miles north and south of the bridge. Might that make a difference? You bet. Consider the following example.  
You have two receptionist who work in the same building in downtown Cincinnati. They started the same day and receive the same compensation of a $25,000 salary per year. One commutes from Mt. Lookout, OH, the other from Erlanger, KY. Once the BSB is finished, it cost $1.50 toll each way for the Kentucky resident to get to work, which amounts to $750 for the 250 workdays she will work the first year. She tries a few times to go around on different routes to avoid the toll, but it was so out of her way and traffic was so bad she ended up spending about the same in extra fuel cost and losing a lot of time, so she ended up paying the tolls. That’s a 3% pay cut on her annual salary, which means an Ohio resident could accept that same job for up to 3% less and still be in the same financial position.
And that just for a daily commute.  How might such a regulation affect those who drive locally for their careers, say, two competing taxi cabs, one from Kentucky and one from Ohio. The Ohio cab driver might have a better profit margin on the fare not having to pay tolls to pick up that same customer in Cincinnati, even if both cabs are the same distance from that customer. What about local distributor trucks? See the point? Need I continue? What is critical here is that in this situation, a tolling mechanism on the BSB, which is a state border, provides an economic advantage to one state’s residents over another.
It is true that the toll will likely be the same both ways. So then, wouldn’t it affect both states’ residents the same?  Not exactly. The Kentucky side has a lot of positive things going on but I don’t think anyone would dispute that Cincinnati has quite a bigger economical market. There are more jobs…more consumers…more commerce on the Ohio side. So on the whole, it would be the Kentucky residents who would be hurt the most. Not to mention, I’m not even sure that would matter. What the court would likely look at is how the tolling structure affected the named plaintiff’s in comparison to someone similarly situated on the other side of the river.
It should be noted that the Commerce clause is not the only source of conflict.  In fact, a similar analysis might reveal that the BSB toll plan would be in conflict with a few “fundamental rights” protected by the Equal Protection Clause and the Privileges and Immunities Clauses of Article 4 and the 14th Amendment, namely, the “right-to-travel’ and “right to pursue a common calling”.
So what does all this mean?  Well, to finance the BSB, it’s likely that we would issue bonds to raise the capital, which would be secured by the future revenues of the tolls and paid off over time. First, just the possibility of a legal challenge with merit would add risk resulting in high interest rates on the bonds, driving up the financing cost. And if the above legal analysis proves true, it would make tolling unconstitutional and it would have to cease.  At that point, with no toll revenue, those bonds would go into default. Not good, especially if you happen to own these bonds.
Look, I’m not questioning that we need a new bridge, or even that we need it soon.  Based on what I’m finding, however, I think it is just too risky to move forward as the Governors are asking. Maybe I’m wrong in my conclusion, but let’s at least have the discussion. 
We have a few toll bridges under construction crossing the river in nearby Louisville. I’m sure some Louisville attorneys and their southern Indiana plaintiffs are lying in wait for the bridge to open so they can pay a toll, get standing, and race to the courthouse to file a lawsuit.  If we want to use tolls, let’s wait and see what happens there. Otherwise, it’s time to consider other financing alternatives.
Adam Meier is an attorney licensed in Kentucky and Ohio and a member of the Fort Thomas City Council. Want to hear more from Adam Meier on BSB?  Head over to our friends at Fort Thomas Matters where he discusses the Governors’ recent proposal as well as some suggestions for a non-toll alternative funding mechanism.
Photo: Brent Spence Bridge/RCN file