Legal fight over I-90 light rail: What century is this?

Thanks to a wildly anachronistic part of the state constitution,  Washington's  Supreme Court had to listen to arguments over whether it's permissible to build light rail on the floating bridge.

Crosscut archive image.

The I-90 floating bridge as it crosses Lake Washington

Thanks to a wildly anachronistic part of the state constitution,  Washington's  Supreme Court had to listen to arguments over whether it's permissible to build light rail on the floating bridge.

While watching the arguments before the state Supreme Court  in the Kemper Freeman v Christine O. Gregoire case regarding Sound Transit trains on I-90, I was reminded of how past decisions can set in concrete the fate of future citizens. But does this have to be? Aren't we in control of this process? Shouldn't the people of today be able to alter legal and constitutional constrictions that hold us back?

It's time to repeal the 18th Amendment to the state's constitution.

The 18th Amendment was enacted in 1944. The voters at the time were convinced that highway funds, such as the gas tax revenues, should be focused on building and maintaining roads — period.

The automobile was in ascension and roads were seen as not just a necessity but a social good. Passenger rail and streetcar lines would soon be abandoned in favor of the freedom the automobile offered. Just as the people of that time could not have envisioned the computer and smart phones, they missed that those rail lines and streetcars would be important parts of the future mix of transportation modes needed to accommodate a 21st century population in Washington state — particularly in the urbanized areas of Puget Sound.

And yet, this anachronism forms the crux of the debate between those who favor multiple modes of transportation and those who are determined to preserve past practices that are no longer sustainable.

The gist of Freeman's case against the state is that the I-90 two lanes that Sound Transit will use were financed by gas taxes and the motor vehicle excise tax (MVET) and are therefore protected for exclusive highway use under the 18th Amendment.

Forget for a moment how absurd it is for trains to not be considered transportation. Also, forget that the I-90 project was hugely controversial and was ultimately allowed to proceed in large part because of the provision made for transit in the center lanes. Specifically, then-U.S. Secretary of Transportation Brock Adams conditioned the I-90 approval on the future commitment of the center lanes to mass transit.

State ferries, however, are considered state highways and can get funding from these sources. Maybe we should just load cars on trains, a la the ferry system?

For those who like the details of the arguments – no matter how absurd they would sound in a post–18th Amendment reality — here they are:

Desmond Brown, counsel for Sound Transit, argues that the Sound Transit plan approved by the voters fully complies with the 18th Amendment in that ST reimburses the state for the use of the two center lanes for train service. The level of reimbursement is calculated by looking at how much MVET and gas tax money went into the construction of the bridge. When the bridge was built, the federal government contributed 80 percent of the funding – yes, you heard that right — 80 percent!

The state and Sound Transit arrived at a formula to assess how to reimburse the state for the highway funds that went into building and operating the two center lanes of the facility. Forget for a moment that having light rail cross Lake Washington is also a public benefit approved by the voters – voters who live in present-day Washington state.

Here's how the deal works: Sound Transit gets access to the center roadway to build light rail. The Washington state Department of Transportation (WSDOT) gets $153.2 million to pay for new HOV lanes. The public gets light-rail service between Bellevue and Seattle and carpool/bus lanes in both directions (i.e., no more reversible lanes).

Next up was Phil Talmadge, former Supreme Court justice, arguing for Freeman and other plaintiffs. Talmadge posited that WSDOT had no authority to lease these lanes to Sound Transit because the 18th Amendment required that the state find the lanes are no longer needed for automobile transportation and to surplus them — they can't just be repurposed or leased. His argument was that the cost or replenishment to the transportation account was irrelevant. He went so far to say that the legislature can't decide to do this, that it is the job of the courts to decide. His argument ignored the fundamental foundation of the I-90 deal — no mass transit, no I-90 bridge.

And here is the problem: While probably not necessary to solving this dispute, we need to repeal the 18th Amendment to the state constitution. It is the definition of anachronistic. To think that providing greater mobility only involves automobiles is simplistic and outdated. Further, we need to break down all of the other silos that restrict our elected leaders from being able to set priorities and move funds from programs that aren't needed to those that are.

I understand that there isn't a lot of trust in our public officials right now, but let's at least give them the tools to make something happen. If they fail, vote them out.

When you look at all levels of government and understand just how small the percentage of revenues elected officials have control over you begin to understand that balancing budgets and setting a bold course is not just difficult, it's damn near impossible.

Light rail across I-90 is a no-brainer, right? Well, maybe in a modern world.


Please support independent local news for all.

We rely on donations from readers like you to sustain Crosscut's in-depth reporting on issues critical to the PNW.


About the Authors & Contributors

Jordan Royer

Jordan Royer

Jordan Royer is the vice president for external affairs in the Seattle office of the Pacific Merchant Shipping Association.