While we would have preferred for the Federal Circuit to prohibit MWAA from collecting DTR tolls and diverting them to the rail project, there is still a possibility of the 4th Circuit doing so. Meanwhile, we should continue to ask Gov. McDonnell and our legislators to take our road back and have MWAA fund Dulles Rail by tolling their Airport Access Road.
UPDATE October 2, 2012: Oral arguments in Corr v. MWAA took place today at the U.S. Court of Appeals for the Federal Circuit. You can download and listen to the oral arguments here. It is impossible to say how the judges will decide the case, but MWAA's attorneys did not seem to convince the judges that they are not a federal government entity. There is no telling when the judges will issue their decision, but we will keep you up-to-date with the latest in the case.
The case argues two main points:
- Tolls in excess of what's required to operate and maintain the road are a tax.
- The Virginia Constitution does not allow the legislature to delegate taxing authority to a non-elected, unaccountable body like MWAA.
What does that mean? There is a solid legal argument, based on recent precedent, that MWAA collection of tolls from the Dulles Toll Road to pay for Metrorail is unconstitutional, and MWAA has no answer to the argument. This means that the court could forbid the toll increases planned for January, and force MWAA to pay back tolls illegally collected.
As we have said elsewhere, this toll increase is not final yet!
Here is some of the very limited media coverage of the lawsuit:
Metro Wash Airports control of Dulles TR challenged in big law suit - toll/tax distinction at issue April 2011
Lawsuit Argues MWAA Can't Tax Dulles Toll Road Commuters September 2012