Expanding Tolling

Commuters on the MassPike pay tolls. Commuters on other major roads in Massachusetts do not. This is hardly fair.

Overall, we are still not spending enough on roads and transit to catch up on maintenance, make improvements to reduce congestion and harden facilities to endure more flooding as climate changes. Expansion of tolling to roads other than the MassPike should be on the table as part of a comprehensive solution.

This post is an evolving document collecting background and resources about the possibility of expanded tolling.

Federal Law on Tolling

Most of the roads in Massachusetts have been constructed with help from the federal government. Federal funding supports many relatively minor roads, not just the major interstates. As a result, the expansion of tolling is heavily controlled by federal law.

Consistent with a vision of nationwide travel expansion, Congress has historically restricted tolling on federally aided highways. This principle was entirely non-controversial when Congress began funding highways in 1916. Language was included stating:

Provided, That all roads constructed under the provisions of this Act shall be free from tolls of all kinds.

Sixty-Fouth Congress, Chapter 241 (at page 356)

This language survives in almost identical form 100 years later as Section 301 of Title 23 — Highways.

Congress has recognized that many states are experiencing funding pressure and has allowed some limited exceptions to the tolling ban under Section 129 of Title 23. Essentially, this section allows new tolling of:

• Entirely new highways, bridges or tunnels.
• Added highway lanes, as long as the total number of toll-free lanes remains the same. In the case of interstates, the number of non-High-Occupancy-Vehicle toll-free lanes must remain the same. The effect of this language for interstates is to encourage the addition of premium express lanes while preserving existing toll-free capacity.
• Reconstruction or replacement of a bridge or tunnel or of a highway other than an interstate highway.

This section replaces similar authority that was previously available through pilot programs.

We understand from federal highway officials that: (1) There is no necessary relationship between the level of toll revenue derived under this section and the cost of reconstruction or replacement; although revenues must be first be applied to maintain the repair, tolls can be set high enough to generate additional funds. (2) Reconstruction must be necessary — one cannot reconstruct facilities unnecessarily for the simple purpose of making them tollable.

Regarding tolling incident reconstruction, there are two unanswered questions for us: What level of reconstruction is sufficient to allow new tolling . . . as to bridges and as to highways? If a facility is already being reconstructed or has been reconstructed without a plan for tolling, until what point can the state go back and decide to add tolling to the project?

Separately, Section 166 of Title 23 authorizes the tolling of HOV lanes so that they can double as SOV express lanes. There is also a pilot program that is limited to only three interstates nation-wide to fund reconstruction through tolls; those eligible are only those that “could not otherwise be adequately maintained or functionally improved without the collection of tolls.” Neither of these programs appears to be a real option for Massachusetts since our main interstates are in pretty good shape, although there all three slots are currently open in the interstate pilot program.

The legislature mandated (in Sections 67 and 74 of the 2013 Transportation Finance Act) that MassDOT produce a plan for expanded tolling. That planning document, completed in December 2013, included a full vision for expanded tolling in Massachusetts but concluded that:

[D]ue to the limiting provisions of MAP-21’s Section 129, tolling the Interstates in Massachusetts is not feasible at this time. This applies to toll concepts for the routes through Massachusetts as well to the imposition of border tolls.

. . .

The opportunities to use provisions of Section 129 to toll the non-Interstate Federal-aid highways are only slightly greater, in that reconstruction of a toll-free Federal-aid highway and conversion of that reconstructed highway to tolls would also be allowed. In practical terms, this is of no additional assistance to MassDOT.

See page 8 of the MassDOT study.

Nothing appears to have changed since 2013. Federal policy changes have been discussed, but the current publications from Federal Highway indicate no recent or expected changes.

Both the Obama administration and Trump administration have proposed expansion of tolling as a tool for infrastructure funding. Most recently, Trump’s infrastructure proposal included the following:

Currently, Federal law allows tolling Interstates in limited circumstances. Tolling restrictions foreclose what might otherwise serve as a major source of revenue for infrastructure investment. Providing States flexibility to toll existing Interstates would generate additional revenues for States to invest in surface transportation infrastructure. Current requirements that States must reinvest toll revenues in infrastructure would continue to apply.

Legislative Outline for Rebuilding Infrastructure in America at page 20.

This feature of the Trump proposal has not been well received by some in Congress. USA Today quotes Democratic Senate Minority Leader Charles Schumer as saying:

The middle class need not ask for whom this bill tolls, it tolls for thee. They don’t need higher local taxes and Trump tolls on top of all that”

USA Today, February 12, 2018

Federal Law on Congestion Pricing

Congestion pricing involves tolling, but the tolls are dependent on time of day and used to manage congestion. Federal law provides additional flexibility for congestion pricing. The 1991 federal highway legislation, ISTEA, Section 1012(b), authorized congestion pricing pilot programs with 5 state or local governments, including tolling on interstates in up to 3 of the programs. In 1998, Section 1216 of TEA-21 expanded the program to 15 states, allowed interstate tolling in all of them, and renamed the program as the Value Pricing Pilot Program. Funding was not continued past 2009 for the program, but it remains on the books as an uncodified session law authorizing value pricing programs in participating states.

Massachusetts is one of the states participating in the VPPP. This participation does create an avenue for Massachusetts to expand congestion pricing by repurposing its existing slot or by seeking an additional slot — we understand from federal highway officials is that there is currently one available.

The VPPP encourages the implementation and evaluation of value pricing pilot projects to manage congestion on highways through tolling and other pricing mechanisms. Although there is no longer a discretionary grant component, many States have gained experience with pricing strategies with the help of the VPPP, and States now can implement more extensive value pricing projects. The FHWA continues to support States and regions in their pricing initiatives by offering guidance and expertise in choosing the most promising and appropriate of the emerging strategies.

Federal Highway Administration Report on the Value Pricing Pilot Program Through April 2018.

VPPP participating states can implement value pricing projects at an unlimited number of locations under the program. Revenues derived from VPPP projects can be applied to any transportation project fundable under Title 29 (highway and transit projects) — see subparagraph 3 of section 1012(b)(3) of ISTEA).

Massachusetts Congestion Pricing Conversations

The legislature proposed a limited congestion pricing pilot in the FY2019 budget.

SECTION 104. The Massachusetts Department of Transportation shall design and implement a temporary pilot program to test the technological feasibility of charging toll rates that are different depending on the time of day, with the goal of relieving congestion for motorists. The program shall not result in a toll rate increase on any road or driver and shall include a discount structure, including off-peak discounts of not less than 25 per cent. Only vehicles with transponders issued by the commonwealth shall be eligible for such discounts. The pilot program shall commence not later than March 31, 2019. . . .

Section 104 of Chapter 54 of the Acts of 2018

The Governor vetoed this language stating that there was no doubt as to the technological feasibility of pricing based on time of day and instead proposing a study of measures to reduce congestion. That study is to be completed at some point this summer.

The conversation about congestion pricing remains active. Organizations recommending use of congestion pricing in Massachusetts include T4MA, A Better City, the Metropolitan Area Planning Council and the Smart Growth Alliance. The MAPC has recently advocated for more study of how congestion pricing would perform as part of the study work plan of the Central Transportation Planning Staff, but MassDOT opposed the proposed study (pending the completion of the Governor’s congestion study), and the study was not included in the draft FY2020 work plan for CTPS.

Note: Environmental Review

Our understanding from federal highway officials is that new tolls or congestion charges under any of the scenarios inventoried above would trigger some level of federal environmental review to assess air quality and environmental justice issues.

Note: The Metropolitan Highway System

The Metropolitan Highway System is a state legal and financial entity that includes the Turnpike inside 128, the 3 harbor tunnels, the O’Neill Tunnel and a portion of the Zakim bridge. Tolling was grandfathered under federal law on the MassPike which was designated as an Interstate in 1959 after it opened in 1957. Some have speculated that that the grandfathering of tolls on the MassPike, a part of the MHS would translate into a possible institution of tolls on I-93 running through the MHS. Federal highway officials poured cold water on that idea, indicating that the MHS state legal construct has no relevance to the federal rules limiting tolling on I-93.