Mike Foote: U.S. 36 and corporate veto power

By Mike Foote
POSTED:   12/29/2016 07:14:10 PM MST

Beginning Sunday, managed lanes on U.S. 36 change from HOV 2 to HOV 3.

Beginning Sunday, managed lanes on U.S. 36 change from HOV 2 to HOV 3. (Daily Camera file)

Corporate influence over our government is widespread and nowhere more apparent than on our highway to Denver.

Much has already been written about the coming Jan. 1 change on the U.S. 36 managed lanes from HOV 2 to HOV 3. I do not agree with the change, nor do many of Boulder County’s elected officials. But here’s the problem: it doesn’t matter what we think and it doesn’t matter what you think. That’s because the impending change was included in the contract signed four years ago after closed-door negotiations between state officials and the Plenary Group, the company that built the managed lanes and now collects the tolls charged to those who drive on them without a passenger or (soon) two.

In its public statements and telephone town hall meetings, the Colorado Department of Transportation and its High Performance Transportation Enterprise maintain that the HOV 3 switch is designed to keep the managed lane from getting too crowded. That’s true, but only half of the story. The 2013 contract called for a switch to HOV 3 in January 2017 regardless of how crowded the lane was at the time. Any modification of that predetermined date would be a breach of contract and subject the state to massive penalties. In other words, we must switch to HOV 3 in 2017 even if the managed lane were as empty as a gym on New Year’s Eve.

The Plenary Group was not elected or appointed, of course, but it has more power over a public highway than any citizen, legislator, or even the governor.

This new reality was heard loud and clear in our state Legislature last session with a bill introduced by Sen. Kevin Lundberg, R-Berthoud, and Rep. Jonathan Singer, D-Longmont, and supported by Sen. Matt Jones, D-Louisville, and myself. The bill would have delayed HOV 3 for just five months, until May 2017. Plenary Roads was consulted and declared Colorado would be on the hook for an $8 million penalty if the proposed change took effect.

That $8 million penalty meant the bill to move to HOV 3 just five months into the future was dead on arrival. Paying that steep of a price to Plenary would have meant taking $8 million away from schools, Medicaid, or some other essential state budget item. Plenary and its executives essentially vetoed that bill.

While pointing out this problem does nothing to help our highway for the remaining 46 years of Plenary’s contract, it can serve as a cautionary tale to Colorado going forward. Public-private partnerships have gained favor in Colorado and apparently with our incoming government in Washington, D.C. They come at a steep cost though. The people and their elected representatives sign away their power on a project for generations.

With the U.S. 36 project, the Plenary Group provided about 4 percent of the cash needed to build the new lanes. They also assumed repayment of some of the federal loans necessary to build the road. In return, they received a large cut of nearly half a century’s worth of toll revenues and unquestionable authority over the road. Plenary got a great deal.

Elected officials can be replaced by a vote. Private corporations cannot. Allowing a company to have corporate veto power over the people is too high a price to pay for any road.

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