by James A. Bacon

Del. Robert G. Marshall, R-Manassas, probably did not get the answers he hoped for when he asked for an advisory opinion from Attorney General Ken Cuccinelli on matters pertaining to the Metropolitan Washington Airports Authority (MWAA). Cuccinelli has gone on record opposing the Rail-to-Dulles project administered by MWAA as a boondoggle. But he did not let that sentiment sway him in his interpretation of the law.

Specifically, Marshall asked whether former Gov. Tim Kaine had acted legally in 2006 when he granted the state’s interest in the Dulles Toll Road to MWAA, in the absence of concurrence by the General Assembly, to provide a funding mechanism for Metrorail extension. Further, Marshall asked if both parties to the interstate compact creating MWAA, Virginia and the District of Columbia, had to amend the compact in order for MWAA to legally take possession of the toll road.

Although the question has not been conclusively resolved, said Cuccinelli in a letter written last week, he believes that the governor was authorized to make the transfer. Stated the AG:

The only court to consider this question concluded that the transfer of the Commonwealth’s interest pursuant to the MOU was permissible. Therefore, although there is no precedent from the Supreme Court of Virginia delineating the precise authority of the Governor in this context, the Governor’s actions were upheld in a court of law.

Furthermore, Cuccinelli said, there was no need to amend the interstate compact. “The approval of MWAA’ s Board would be sufficient to confer upon MW AA the authority and responsibility to operate and maintain the Dulles Toll Road.”

Addressing other questions posed by Marshall, Cuccinelli advised that Virginia would not bear any liability should MWAA default on its bond obligations, and that MWAA, as an interstate compact, was not subject to either the federal nor the state Freedom of Information Act laws. “The MWAA Compact does not specify that one or both of the freedom of information statutes applies to MWAA,” he wrote.

Cuccinelli’s ruling, coming as it does from someone unsympathetic to the Rail-to-Dulles project, should pretty well quell any speculation that Kaine’s 2006 transfer was unlawful. What’s done cannot be undone. There’s no point in beating that horse, which is so dead that it’s been shipped to the glue factory.

However, the lack of an effective FOIA law governing MWAA is clearly a flaw in the authority’s governance structure. The only way to deal with that, however, is to amend the interstate compact. It’s a long and tedious process to get approval from both Virginia and D.C., but that’s the way it goes. The McDonnell administration should initiate that change. It won’t make a difference while McDonnell is in office, but Virginia citizens will appreciate the greater transparency in years to come.