How the State gets to spend $1.1 billion on I-95 toll lanes

How is it possible that the Republican Governor can spend billions on road widening in a State with a Democratic majority in both chambers of the State House, chambers which had voted for gas tax increases to fund transit?

Traffic Relief through more lanes: MDOT website

This question has vexed residents of the Baltimore metro area ever since the Governor nixed the $2.9 billion Red Line rail transit line and has since spent money for added transportation capacity only on roads. (Except for the small State portion for the Washington area Purple Line).

While Maryland has a strong Governor in terms of how the balance of power is assigned, federal transportation and state smart growth laws put many hurdles in the way of just one person deciding how transportation should be done. Shouldn't those prevent such lopsided outcomes?

For example ISTEA: Under George Bush senior the federal government enacted the Intermodal Surface Transportation Efficiency Act, in essence an authorization bill for federal transportation money, as there have been many before and after. However, ISTEA as it became known, was a landmark bill in that it recognized that prudent transportation policy has to look at all modes of moving goods and people in an integrated way, across a regional area and with land use, air quality and effectiveness of expenditures in mind. Transportation experts were jubilant, because they had long demanded that these topics come out of their silos and the question no longer be only, how to make cars move faster, but how to move goods and people in the most efficient and most healthy and sustainable way.

BRTB meeting at BMC: Suburban and rural jurisdictions have the majority
(photo: Philipsen)

To investigate the complicated process how money finds its way to actual transportation projects, I attended the recent meeting of the Baltimore Regional Transportation Board (BRTB), when its main agenda item was the $1.1 billion  toll lane expansion north of MD 43, the current endpoint of the already existing toll lanes. More precisely, the BRTB had to decide whether this project should be added to the Transportation Improvement Program (TIP), a necessary step before a major transportation investment can occur using federal funds.

...federal regulations require that all transportation-related projects must be listed in a Transportation Improvement Program (TIP) with accurate funding schedules in order to be eligible for federal funding. Also, the TIP consists of projects included in, and in support of, the region's long-range transportation plan and ongoing short-range planning efforts (From BRTB resolution 19-5)

Most people probably have never heard of the BRTB or of TIP, or any of the other many acronyms floating around in transportation politics like storm-debris on the Chesapeake Bay. Many of those terms go back to ISTEA, It mandated regional transportation planning organizations such as the BRTB and required analysis to precede construction of facilities.

The Baltimore Regional Transportation Board (BRTB) is the designated metropolitan planning organization (MPO) for the Baltimore region, encompassing the Baltimore Urbanized Area, and includes official representatives of the cities of Annapolis and Baltimore, the counties of Anne Arundel, Baltimore, Carroll, Harford, Howard, and Queen Anne’s, as well as representatives of the Maryland Department of Transportation, the Maryland Department of the Environment, the Maryland Department of Planning, the Maryland Transit Administration, and Harford Transit; (from BRTP Res 19-9)

There is a long version to explain all of this and a short one. Here the short answer why, 27 years after ISTEA, a Governor can still return to the stone age transportation policy of just making cars go faster: 

Every entity that was supposed to guarantee that transportation money is spent wisely has learned to jump through all the regulatory hoops and still pursue exactly what had always been done before. Thus, long-term transportation improvement plans, regional coordination, clean air and major investment studies get produced to prove that the proposed road widening  improves the air, is good for the region, for air quality, the environment, safety and the best way to achieve mobility. In other words: We now spend more time and more money to get the exactly same results as 1991 and before.

CAC member Eric Norton reports on CAC opposition
to the I-95 widening 

Governor Hogan's highway agenda was on display in September 2017, when he and his MDOT Secretary announced a $9 billion highway widening bonanza dubbed the Traffic Relief Plan. It addressed the Washington Beltway, the Baltimore Beltway, the BW Parkway. This was followed by a more Baltimore centered traffic relief plan announced in December. It also included exclusively road widening, including $210 million for toll lane extension to Bel Air. In June the Governor added $890 million  for the extra lanes on I-95 to get faster to Harford County, an extraorinary increase.  Former Harford County Executive Eileen Rehrmann expressed her gratitude this way:

“Maryland and Harford County have a great friend in Governor Larry Hogan. During the governor’s tenure, the county has received vital support from his administration, including an innovative plan to widen highways in Harford County to provide much-needed congestion relief." (Hogan website)

The BRTB session was instructive in showing how the complicated regulatory parcours can be conquered:

• First with breakneck speed: The time from announcement to the planned completion in 2022 is only five years. (By comparison, the $2.9 billion Red line was planned and designed for 13 years, not including construction).  That the project wasn't  included in the Transporation Improvement Plan (TIP) even though that plan had just been approved in July of 2018 was a flaw that the recent meeting was to rectify with resolution 19-5. It is notable that the TIP totals $3.198 billion for a three year period.ending in 2022.  The amendment adds a about a third to the expenditures of the entire region, a bit less if one allows that the lane project may still draw money in 2023. The one third "amendment" to the TIP had its own public meeting, short public comment period and determination that the plan was in compliance with the Air Quality requirements of the Clean Air Act. references to accidents and congestion as the main drivers for the investment remained unsubstantiated and unchallenged. 
• Second with a largely uncritical BRTB. Although its citizen advisory committee (CAC) rejected the amendment with a split vote, the members representing the various regional transportation agencies had little to discuss. There was a brief question about how the I-95 improvement projects were selected and a another one about how well the completed portion of the toll lanes perform and a question about how the improvements for Port Covington are funded. That was all the scrutiny the board could muster. The response to the performance of the existing toll road section that "the segment outperforms expectations" and that up to 44,000 vehicles  use the four additional lanes per day satisfied everybody, even though this volume is below capacity by a factor of 2 or 4 (the four lane I-97 has an ADT of 160,000) and no dollar figures regarding revenue or "return on investment" (ROI) were provided.
• Third, with the State stacking the deck in favor of the single occupant automobile: In response to a BRTB question how the toll lanes were identified as the most appropriate way to solve regional transportation bottlenecks, the response was that the Maryland Toll Authority (MdTA) can only spend its funds on its own toll roads. This eliminates pretty much everything else except the Bay Bridge (which has its own expansion study). The toll revenue in 2017 was a whopping $670,760,000 in 2017, an increase of $26 million over 2016. When asked why high occupancy vehicles and vanpools couldn't drive free on the new lanes like in Virginia, BRTB members were told that Virginia reimburses its private operator for those tolls and that such use of revenues isn't allowed in Maryland. No word, though, that the I-95 toll lanes would be operated privately.
• Fourth: Circular logic: Maybe the most telling moment came, when the Harford County representative rebutted the CAC critique of the project as solely auto oriented  with the observation that transit was way too limited to divert any significant amount of traffic. The board member compared 450 train passengers with the 44,000 cars on the current toll lanes. He has a point, but with that logic transit will continue to starve and roads will remain to be king.
• Fifth: Cavalier Methods: Congestion mitigation through increased road capacity is routinely counted as an improvement to air quality, even though it promotes the expanded use of  motor vehicles, one of the largest contributors of air pollution.  This is all the BRTB got to hear about how the I-95 widening improves air quality:

The Interagency Consultation Group (ICG) has determined that implementation of the projects will not worsen the region’s air quality or delay the timely attainment of air quality standards or interfere with implementation of any transportation control measures (TCMs), consistent with the Conformity Rule (40 CFR Parts 51 and 93); (From BRTB resolution 19-5)

Express Toll Lanes (ETL) north of MD 43 (MDOT presentation boards Jan 2018)

The discussion about air quality was, indeed, another instructive element of the BRTB session when it came to its own agenda item and the CMAQ resolution. Again, federal regulations determine what the BRTB has to do in theory. In practice, there is little meaning left of the original intent of  giving residents in the metro area of Baltimore better air. Ever since the metrics of the Clean Air Act were applied, our metro area was classified as a non-attainment area. This is what the BRTB resolution says:

The Baltimore region is classified as marginal non-attainment for the 2015 Ozone National Ambient Air Quality Standard (NAAQS) and moderate non-attainment for the 2008 Ozone NAAQS, and must work to ensure the region maintains conformity with the state's air quality plan; The Congestion Mitigation and Air Quality Improvement (CMAQ) program was created to provide funding for transportation programs and projects that reduce air pollution and mitigate congestion from the transportation system, and this funding is provided to state and local governments to assist them in reaching federal air quality requirements established by the Clean Air Act.

The BRTB didn't need much time to adopt CMAQ Performance Plan 2018, even though confusion about how those improvement targets were calculated was obvious from some of the questions and even from the response. It went something like this:  Congestion reduction is calculated via formulas as emission reduction. Since the multitude of  measures planned in the TIP has not been individually modeled for each case, the sum total of all planned benefits is simply extrapolated from the past calculated improvement. No specific projects to improve air quality such as higher transit mode shares, active modes, or transportation electrification measures were mentioned.

A frequent complaint regarding the Baltimore Metropolitan Council is the dominance of suburban and rural jurisdictions which can out-vote the two municipalities on the BRTB any time. The lone voice against the I-95 widening concept came from the representative of Annapolis, Sally Nash. The representative of Baltimore City is DOT Director Michele Pourciau. This year it is her turn to chair the meetings. According to the parliamentarian rules, the chair doesn't vote except as a tie breaker. The I-95 measure passed the BRTB 12-1. 

Klaus Philipsen, FAIA