During yesterday’s city council viaduct oversight committee meeting, at which the council discussed a proposed agreement between the city and the state over the deep-bore tunnel, city and state officials told council members it would be “illegal” for the state department of transportation (WSDOT) to spend more than the $2.8 million the state has committed to spend on the deep-bore tunnel without explicit approval from the state legislature. And they repeatedly reassured council members that the state, not the city, would be responsible for any cost overruns on the project, because the city will not be a party to the contract to design and build the tunnel.
However, the agreement the city is contemplating might not ultimately protect city taxpayers from cost overruns. That the case even if language proposed by Mayor Mike McGinn, which would halt construction until the state legislature removes a provision in state law that says “Seattle taxpayers” would be on the hook for any cost overruns, was included in the agreement. McGinn has asked the council to insert that language into the city’s agreement with the state, but the council has been cool to that idea, calling McGinn’s move a “delaying tactic.”
First, although it affirms the city’s desire not to pay for any overruns, the existing agreement between the state and the city is silent on what happens if the project exceeds the $2.8 billion cap. As assistant city attorney Darby Ducomb put it yesterday, “The [agreement] does not address the situation in which the state’s costs for the program exceed $2.8 million.” A future state legislature would have to decide how to pay for anything in excess of that amount.
Second, the agreement between the state and the city can’t bind future legislatures: The state legislature could add the McGinn language next year, sign a tunnel contract, then turn around and put the language right back in. Alternatively, if the tunnel ran into overruns, the agreement only stipulates that the state department of transportation (WSDOT) is responsible for picking up the excess. It doesn’t specify where that money would come from. That’s the legislature’s decision, and they could conceivably decide that Seattle taxpayers should foot the bill.
“The agreement makes it clear that the corporate city is not responsible” for overruns, council central staff director Ben Noble said at yesterday’s meeting. “What it does not say, and cannot say, is where WSDOT can secure all the money it might need to meet those obligations. We know what the state has budgeted for the project and we know the intent of the state legislation, and that’s more or less where the story ends.”
Of course, that might actually be an argument for McGinn’s proposal: If the council and mayor show a unified front now, there’s a chance the legislature could find that compelling in the future. Only one problem, though: The odds that the legislature will pass McGinn’s language are slim to none. The chairs of the house and senate transportation committees, Judy Clibborn and Mary Margaret Haugen, respectively, have said they won’t consider any tunnel-related legislation this year; assuming they keep their word, that would push viaduct construction back two years, and that’s something most of the city council can’t accept.
I have a call in to McGinn (a lawyer) to find out what he thinks of all these different scenarios.
