AG’s office: I-405 express toll lanes don’t have to meet both requirements

Washington’s top legal office has weighed in on a tense grammatical debate at the heart of the controversial I-405 express toll lanes, saying that the law should allow for them to stay.

It all boils down to the word: “and.”

“The word ‘and’ is now being treated subjectively … (Washington State Attorney General Bob Ferguson) talks about ‘and’ meaning both or either,” Representative Mark Harmsworth told KIRO Radio’s Dori Monson. “Obviously, the intent of the legislation was to meet both of these (goals).”

RELATED: Former AG Rob McKenna on the I-405 toll lanes

Harmsworth, representing the state’s 44th District, has opposed the toll lanes since they were implemented.

According to a law set up by the Legislature, the I-405 express toll lanes were supposed to accomplish two main goals within 2 years of operation:

• The tolling system had to pay for itself. It has far exceeded that goal. Operational costs were $13.6 million over the 2 years. The lanes raised $38.6 million.
• The lanes had to flow at 45 mph, 90 percent of the time. They did not meet this goal, and only reached 45 mph a total of 82 percent of the time.

Washington State Department of Transportation officials wanted to know if they had to shut the lanes down if only one goal was met. Did the law require that both had to be accomplished?

Attorneys from the AG’s office authored an interpretation on the law surrounding the I-405 toll lanes — it is not an official opinion from Ferguson’s office.

Grammar and the express toll lanes

According to RCW 47.56.880:

If after two years of operation of the express toll lanes on Interstate 405 performances measures listed in subsection (4)(a) [speed requirement] and (e) [revenue] of this section are not being met, the express toll lanes project must be terminated as soon as practicable.

That one “and” in between the speed goal and the revenue goal is up for debate.

A representative of the state’s toll division told KIRO Radio that, “The AGO advised us that as the statute is written, the lanes must meet one of the two metrics to continue operating. The lanes are meeting the requirement to generate sufficient revenue to cover operations, but have not met the metric for speed.”

The letter from the attorney general’s office states that the law is ambiguous, but would likely be interpreted in court that both of the goals would have to fail for the lanes to be shut down.

“I’m getting tired, just like everyone else is,” Harmsworth said. “The people of the state just want to be able to get around. They want to get to their jobs and do it quickly and do it cost effectively. And it feels like you are running this uphill battle all the time and the bureaucracy, every step of the way, is introducing new barriers. What I’m seeing here is another, ‘Hey this isn’t what the people’s Legislature intended, this is what we’ve decided is the right way you should live your lives.’”