Montgomery Cnty. v. Virginia Dep't of Rail

• Decision Date: 04 November 2011
• Docket Number: Record No. 100350.
• Parties: MONTGOMERY COUNTY, et al. v. VIRGINIA DEPARTMENT OF RAIL AND PUBLIC TRANSPORTATION, et al.
• Court: Virginia Supreme Court

282 Va. 422

719 S.E.2d 294

MONTGOMERY COUNTY, et al.

v.VIRGINIA DEPARTMENT OF RAIL AND PUBLIC TRANSPORTATION, et al.

Record No. 100350.

Supreme Court of Virginia.

Nov. 4, 2011.

Gregory J. Haley (Martin M. McMahon, County Attorney; Monica Taylor Monday; Kathleen L. Wright; Gentry Locke Rakes & Moore, on briefs), Roanoke, for appellants.

Kenneth T. Cuccinelli, II, Attorney General; (Charles E. James, Jr., Chief Deputy Attorney General; E. Duncan Getchell, Jr., State Solicitor General; Stephen R. McCullough, Senior Appellate Counsel, on brief), for appellee Virginia Department of Rail and Public Transportation; Matthew O. Tucker, Director, Virginia Department of Rail and Public Transportation, and Commonwealth Transportation Board.

Gregory N. Stillman, Norfolk (Carl D. Gray; Stuart A. Raphael, McLean; Maya M. Eckstein, Richmond; Hunton & Williams, on brief), for appellee Norfolk Southern Railway Company.Amicus Curiae: Southern Environmental law Center (Oliver A. Pollard, III, Alexandria; Morgan W. Butler; Southern Environmental Law Center, on brief), in support of appellees.

Present: KINSER, C.J., LEMONS, MILLETTE, McCLANAHAN, and POWELL, JJ., and RUSSELL and LACY, S.JJ.

Opinion by Justice ELIZABETH A. McCLANAHAN.

The Virginia Department of Rail and Public Transportation (DRPT) entered into an agreement, pursuant to the Rail Enhancement Fund created by Code § 33.1–221.1:1.1, to grant funds to Norfolk Southern Railway Company (Norfolk Southern) for the development of an “intermodal” terminal in Montgomery County. The terminal would serve as a transition point for shifting the transportation of freight by road to shipment by rail, and vice versa.

Opposing the agreement between DRPT and Norfolk Southern, appellants, Montgomery County and the Board of Supervisors for Montgomery County (collectively, the County), instituted the instant action against DRPT, DRPT's Director, and the Commonwealth Transportation Board (CTB). Norfolk Southern subsequently intervened as a defendant. In its complaint, the County claimed that Code § 33.1–221.1:1.1 and the agreement were unconstitutional under Article X, Section 10 of the Constitution of Virginia, and sought to enjoin their administration. Specifically, the County asserted that the statute and the agreement violated the prohibitions set forth in two of the clauses in Article X, Section 10, commonly referred to as the “internal improvements clause” and the “credit clause.” Under the internal improvements clause, the Commonwealth is prohibited from certain involvement in “any work of internal improvement” with the express exception of public roads and public parks. Va. Const. art. X, § 10. Under the credit clause, the Commonwealth is prohibited from lending its credit to any person, association or corporation. Id.

The parties submitted documentary evidence to the circuit court, and based upon those submissions filed cross-motions for summary judgment on the County's constitutional challenge. Ruling in favor of the three government defendants and Norfolk Southern (the appellees in this appeal), the circuit court concluded in its letter opinion that the agreement between DRPT and Norfolk Southern had been “properly effectuated pursuant to constitutionally valid legislation of the Virginia General Assembly animating public purposes, [and] governmental ones, aimed at providing for the common welfare of its citizenry to improve efficiencies of public roads.”

On appeal, the County challenges the constitutionality of Code § 33.1–221.1:1.1, as applied, in authorizing funding to Norfolk Southern for the facility's development under the terms of the agreement. The issue we decide is whether this application of the statute violates either the internal improvements clause or the credit clause of Article X, Section 10 of the Constitution of Virginia.

Concluding that Code § 33.1–221.1:1.1, as applied in this case, does not violate the subject provisions of Article X, Section 10, we will affirm the judgment of the circuit court awarding summary judgment in favor of appellees.

I. BACKGROUND

A. Legislative Intent for Shifting Highway Truck Traffic to Rail

More than a decade ago, the General Assembly expressed its concern over the growing congestion of heavy truck traffic on the highways in Virginia. In House Joint Resolution No. 704 from the 1999 legislative session, the General Assembly indicated that, through utilization of the Virginia Port Authority's Inland Port at Front Royal, the Port Authority collected truck-hauled containerized freight “in sufficient quantities to transport it in unit trains directly to the Ports of Hampton Roads.” H.J. Res. 704, Va. Gen. Assem. (Reg.Sess.1999). This mechanism, according to the General Assembly, resulted in “not only holding down costs paid by the shipper, but also eliminating a substantial number of trucks from the overcrowded long-haul highways of eastern Virginia.” Id.

Pointing to this example, the General Assembly declared, “a network of intermodal transfer facilities might be established that could prove useful in reducing heavy truck traffic on other long-haul highways in the Commonwealth, particularly Interstate Route 81.” ¹ Id. In addition, some of the intermodal facilities “might employ a variety of ‘piggy-back’ container, trailer, or semitrailer configurations.” Id.

Accordingly, the General Assembly tasked Virginia's Secretary of Transportation, in conjunction with the Virginia Department of Transportation and DRPT, “to study the desirability and feasibility of establishing additional intermodal transfer facilities”; and to submit findings and recommendations from the study to the Governor and the 2001 Session of the General Assembly. Id.

The following year, in Senate Joint Resolution No. 55 from the 2000 legislative session, the General Assembly again addressed the traffic problem on Virginia's interstates. S.J. Res. 55, Va. Gen. Assem. (Reg.Sess.2000). The General Assembly declared that “many of the Commonwealth's interstate highways are experiencing an erosion of safety as a result of staggering increases in traffic.” Id. An “acute example” of this problem, the General Assembly explained, was Interstate 81, which was designed “to carry no more than 15 percent of its total traffic volume as truck traffic, but whose current traffic is made up of as much as 40 percent trucks.” Id.

The General Assembly further declared that widening Interstate 81 alone was estimated to cost in excess of three billion dollars and take at least ten years to complete, and that similar improvements to Virginia's other interstates would have comparable costs and completion times. In an effort to provide an alternative measure that would “alleviate the excessive volumes of traffic” on Interstate 81 and Virginia's other interstate highways, the General Assembly determined that it may be “both desirable and feasible” to “shift traffic on our highways to trains on our railroads.” Id.

The General Assembly thus requested that the Secretary of Transportation expand her study regarding the establishment of additional intermodal transfer facilities, pursuant to 1999 House Joint Resolution No. 704, “to include the potential for shifting Virginia's highway traffic to railroads.” Id.

In 2001, the Secretary of Transportation issued a report to the Governor and the General Assembly presenting the results of the study commissioned by the General Assembly pursuant to the two resolutions described above. See Commonwealth of Va., Sec'y of Transp., The Potential for Shifting Virginia's Highway Traffic to Railroads, S. Doc. No. 30 (2001). The Secretary explained in the report that a variety of data was collected on truck movements, Interstate 81 improvement plans, and railroad plans. Analyses were then conducted to determine “the reasonableness of both highway and railroad plans and cost estimates, the amount of highway traffic which might be diverted to rail, and the extent to which those diversions might impact I–81.” Id. at 5. Based on the study, the Secretary ultimately recommended in her report, among other things, that the Commonwealth “fully consider proposals advanced to divert highway traffic to rail transportation” in light of “the potential for significant public benefits.” Id. at 36.

In 2005, through House Joint Resolution No. 789, the General Assembly declared its support for such a proposal in the form of a major multi-state initiative between Virginia, West Virginia and Ohio, called the Heartland Corridor. H.J. Res. 789, Va. Gen. Assem. (Reg.Sess.2005). As described in the resolution: “the Heartland Corridor proposes the development of a seamless, efficient rail intermodal route from an Atlantic Ocean gateway, opening up a significant portion of western Virginia and West Virginia currently excluded from international intermodal markets, ... and connecting to a center of existing domestic and international distribution in the Midwest, thereby strengthening the economic vitality and improving the efficiency and capacity of Virginia's and the nation's transportation network.” Id.

According to the General Assembly, this newly designated railway corridor would allow intermodal containerized traffic to “move directly across the heartland” from the ports in Hampton Roads to the Midwest. Id. Further, these containers could be double-stacked on trains—a key feature of the corridor—as a result of the construction of new clearance levels along the corridor. Id.

The Roanoke Valley would be among the locations gaining direct connection, via rail, to both the Virginia ports and the Midwest, the legislature further declared. This would be accomplished by the provision of an “intermodal ramp” in the Roanoke Valley region. Id. As explained in the resolution, rail intermodal transportation requires such “ramp facilities for the seamless transfer of rail-to-truck and the reverse”; and such facilities “must be well situated relative to other infrastructure, most...