Troutman Sanders Helps Secure Favorable Virginia High Court Decision on Constitutionality of Tolls to Finance New Tunnel Connecting Norfolk and Portsmouth

Troutman Sanders Helps Secure Favorable Virginia High Court Decision on Constitutionality of Tolls to Finance New Tunnel Connecting Norfolk and Portsmouth

Troutman Sanders LLP successfully helped reverse a lower court decision, which ruled against the collection of tolls by the Commonwealth of Virginia and a private contractor at three existing tunnels connecting the cities of Norfolk and Portsmouth. The revenue from these tolls would be used to pay for a fourth tunnel. The Virginia Supreme Court decision in Elizabeth River Crossing v. Meeks [enhanced version available to subscribers] allows the Virginia Department of Transportation (VDOT) and its private contractor to continue the $2 billion project, without delay, while maintaining a 167-year old procedure for setting tolls and collecting fees.

In its unanimous decision, handed down on October 31, 2013, the high court reversed Portsmouth Circuit Judge James A. Cales Jr.’s May 2013 ruling that the collection of the tolls was an unconstitutional tax, and that the Virginia General Assembly had improperly ceded its taxing authority to VDOT.

The justices determined that the tolls were not a tax, but rather a user fee, because they provide a benefit in exchange for payment. They also ruled that the General Assembly has the constitutional authority to delegate legislative power to VDOT to set user fees, and that it properly authorized VDOT to negotiate the terms of public-private partnerships with its contractors.

Troutman Sanders senior counsel George Somerville, who regularly represents clients in appeals to the Supreme Court of Virginia and other state and federal appellate courts, represented the Commonwealth of Virginia. He was assisted by Troutman Sanders associate Timothy St. George and worked in conjunction with the Attorney General of Virginia. Somerville and St. George were the principal drafters of the briefs on behalf of VDOT, and Somerville presented the primary oral argument before the Supreme Court.

“This is an important decision for the state of Virginia, because it means that VDOT will be able to go forward with this infrastructure project that cannot be financed by taxes alone,” said Somerville. “In addition, it establishes a precedent for other states that have similar Public-Private Transportation Acts, as well as a variety of other non-transportation statutes that likewise involve public-private partnerships.”

About Troutman Sanders:

Troutman Sanders LLP is an international law firm with approximately 600 lawyers and offices located throughout the United States and China. Founded in 1897, the firm’s lawyers provide counsel and advice in practically every aspect of civil and commercial law related to the firm’s core practice areas: Corporate, Energy and Industry Regulation, Finance, Litigation and Real Estate. Firm clients range from multinational corporations to individual entrepreneurs, federal and state agencies to foreign governments, and non-profit organizations to businesses representing virtually every sector and industry. See for more information.

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