May 19, 2022 Jim Parsons KEYWORDS PennDOT / Pennsylvania / Public private partnership / Transportation Order Reprints No Comments

A preliminary injunction has temporarily stopped the Pennsylvania Dept. of Transportation from moving forward with a plan to upgrade several key bridges using public-private partnerships.

Commonwealth Court Judge Ellen Ceisler issued the order on May 18, directing a temporary injunction in a case involving PennDOT’s proposed replacement of Interstate-83/South Bridge in Harrisburg.

With an estimated cost of $850 million to $1 billion, the project was considered a candidate for the agency’s Major Bridge P3 Initiative, in which new tolls are implemented to help finance infrastructure upgrades carried out by a pre-selected design-build-operate-maintain consortium.

PennDOT, which last year identified nine bridges for the program, had sought to begin final design work and right-of-way acquisition on the I-83/South Bridge project later this year, and aimed to have construction begin in 2024.

Several local jurisdictions sued to halt the project. They claimedthat PennDOT failed to follow steps required by law to approve a P3 on transportation infrastructure, including providing local residents insufficient opportunity to weigh in on the tolling plan itself before it was approved by Pennsylvania Public-Private Transportation Partnership Board.

The plaintiffs also claimed that the 2012 law establishing the board was itself a violation of the state’s constitution, because it represented an unlawful delegation of taxation authority that was reserved to the state legislature.

Judge Ceisler agreed, noting that the board’s approval of the tolling concept lacked details on which bridges would be involved. In her opinion, she stated that the state P3 board “essentially approved a massive multi-billion dollar infrastructure initiative on an admittedly meager record, consisting of a four-page recommendation from DOT, a presentation, and minimal discussion, and without understanding which, or how many, pieces of public infrastructure the initiative would affect.”

The temporary injunction applies to all projects under the Major Bridge P3 Initiative, pending a hearing by the full Commonwealth Court to consider a permanent injunction.

In the interim, PennDOT is prohibited from carrying out any activities related to the projects. That includes moving forward with a pre-development agreement with a team led by Macquarie Infrastructure Developments LLC, which was selected in March to administer the Major Bridge P3 Initiative.

Although PennDOT could appeal the decision to the state Supreme Court, the agency has offered no public reaction to Judge Ceisler’s decision, other than that it is under review.