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McKenna Says Cost Overrun Provision Not Currently Enforceable

Politics, This Washington   July 26, 2010 at 1:13 pm Josh Feit

Gov. Chris Gregoire asked Washington State Attorney General Rob McKenna to provide his legal analysis of the now-infamous tunnel cost overruns provision.

The question on the table, of course, is whether or not the language is enforceable. In a letter to the governor troday, McKenna says the legislature would have to pass further legislation to make the provision operative.

McKenna concludes: “A future legislature may choose to enact additional legislation necessary to make this cost overrun provision operative, or may choose not to do so.”

Given that the original legislation only passed by a few votes (49-47), I wonder if any Seattle reps would go for it again to make it operative.

“The governor has maintained for a while that the cost overrun language is not enforceable,” says Gregoire spokesman Viet Shelton. “It’s significant that the AG has put that same legal analysis on paper.”




  • David Miller

    So now that the State and Seattle's attorney says the provision is unenforceable without additional action — action Publicola notes is unlikely to pass — what will Mayor McGinn complain about now?

  • mt_spurr

    Gregoire made this point to McGinn weeks and weeks ago; in fact chiding him by pointing out that he was an attorney, he should know that this provision was unenforceable.

    Smart move by Gregoire, to have McKenna issue a legal opinion and further undercut whatever credibility McGinn had left.

  • Jakers

    They'll say that it then should be removed, and until they get some kind of blood oath that they tunnel will never get built, they won't let the tunnel go forward.

    It's nice to have the AG's opinion (which I agree is correct) but it would be settled in court, not by his office.

  • giffy

    Shocking. Can we stop talking about this now?

  • giffy

    There would have to be a party that was suing for that to happen. With both the AG and the Governor basically saying the legally obvious thing and the State Constitution restraining state action even further there really is not anything to litigate on.

  • Ben Trovato

    What will McGinn complain about now? Well maybe the fact that just like every other megaproject approved by people who have little to no liability for its outcome, the deep-bore tunnel project contains the ingredients for a financial, if not a physical, disaster without providing rewards commensurate with the risk.

  • Ryan

    Huh. I read it completely differently.

    Gregoire signed off on a bill with what she now acknowledges is a completely unenforceable provision, and it's been clear since that the legislative intent was exactly how the provision reads even if it is unenforceable. The McKenna letter vindicates McGinn, not Gregoire.

  • Deb Eddy

    Standing to sue is a completely different question. :-)

  • Qwerty432

    Can't really stop talking about it until it's repealed.

  • mt_spurr

    Ah, and she pointed out to McGinn that she, as a member of the Executive Branch, cannot change that legislation. It is up to the legislature to change that legislation.

    You must have missed something in Elena Kagan's hearings vetting her appointment to the SC. She stated that if Congress (read Washington State Legislature) wants to pass bad laws, it is not up to the Executive Branch to decide if they are constitutional, it is up to the courts. But if the courts decide they are constitutional, the courts can't do anything about Congress passing bad (read ill-advised) laws.

    When was the last time you read about the President or a Governor refusing to sign a bill because they, in their sole opinion, deemed it to be unconstitutional? I have heard about it in relation to guns, abortion, immigration, which are federal questions. If this was such a bright line issue, then why has McGinn run around with his panties in a wad for 6 months (as in one-half year)?

  • Selma

    Sez you.

  • giffy

    Good point Deb, but its not just standing. I am wondering who actually would even bring a lawsuit on this?

  • giffy

    Eh, there are tons of unenforceable laws on the books. You'd be surprised for example how many racial covenants are still in existence even though they are 100% unenforceable. Its just too much work to remove them.

    This is a silly battle and a waste of political capital. McGinn should be fighting for transit, but I ain't holding my breathe that Mayor Quimby will figure that one out.

  • Drive-By-Trucker_(Soapboxin')

    Ah, that's what I was waiting for. A little less hubris from the Mike Bikes section, and a return to the doomsaying negativity. Now things are back to the natural order.

  • Drive-By-Trucker_(Soapboxin')

    Chiding? She was one step away from taking off her belt, putting him over her knee, and spanking him.

  • Drive-By-Trucker_(Soapboxin')

    First, I wholeheartedly agree that moving away from the cost overrun issue will be a welcome relief. McGinn did hitch his wagon to that issue, but I'm sure he'll find something new. As we know, this dialogue did have some success in swaying the discourse and public opinion towards his position. He just didn't win at the end of the day.

    He'll find a new angle. I take comfort, however, in his lack of professionalism and incompetence. He, his staff, and his cronies are too busy re-inventing the political wheel to be effective.

  • http://jabailo.tumblr.com John Bailo

    So, you’re giving one political entity — Seattle — the ability to shift costs from a discretionary project (tunnel) to the whole state?   Hey, why don’t we just send the bill to Czechoslovakia?   Or Thailand?  Or the UN?   They have as little representation as the Rest of Washington!!