HARTFORD, CT — State Sen. Joe Markley, R-Southington, who is also a candidate in next week’s Republican primary for lieutenant governor, Tuesday filed an injunction against Gov. Dannel P. Malloy in Superior Court to try to block spending $10 million to study how to implement tolls.
Markley’s contention is similar to that of the two Republican members of the state Bond Commission who voted against the expenditure proposed by Gov. Malloy — that because the General Assembly didn’t authorize it, it couldn’t be done.
“It’s up to the General Assembly to authorize expenditures,” Markley said. “Gov. Malloy does not have legitimate authority to borrow $10 million to conduct a study the legislature did not approve.”
In seeking the injunction, Markley claims: “The Defendant’s Order constitutes a violation of the Connecticut Constitution Article Second because it requires the Department of Transportation take actions that were specifically rejected by the legislature during the 2018 legislative session when the legislative body failed to consider, vote on, or pass H.B. 5391, H.B. 5393, or S.B. 389.
“These actions include the expenditure of funds for the implementation of electronic tolling and the conducting of a study to satisfy the requirements of the National Environmental Policy Act,” reads Markley’s rationale in the injunction request.
Markley further states in his request for the injunction that Malloy, by pushing the toll study initiative through the Bond Commission, constituted “an unconstitutional exercise of the powers of the Executive Branch in subjugation of the will of the Legislative Branch in that the legislature, when it in all of its wisdom, made the determination not to pass H.B. 5391, H.B. 5393, or S.B. 389 offered during the 2018 legislative session.”
Markley argues that Malloy’s action sets a bad precedent.
“It’s not just a reckless waste of money now — it sets a precedent for future executive overreach,” Markley said. “Even by Dan Malloy’s standards, this is an arrogant abuse of power, coming at the expense of Connecticut’s citizens and laws.”
Before the Bond Commission vote was taken, Malloy and Attorney General George C. Jepsen, who also sits on the Bond Commission, said the governor had the authority to push the expenditure because while the legislature may not have voted on specific legislation, it also took no specific action against tolling. They said the lack of action gave the governor the authority to continue to study the issue.
“As Attorney General Jepsen made clear during the Bond Commission meeting, Governor Malloy is well within his right to allow this study to proceed,” Kelly Donnelly, spokesperson for Malloy said in reaction to Markley’s legal action.
“Senator Markley is just plain wrong,” Donnelly added. “And quite frankly, when it comes to modernizing an aging infrastructure and building the kind of transportation system Connecticut deserves, he has subscribed to the modern day ‘know-nothing’ philosophy — proactively choosing to know less, rejecting options before even fully understanding them, and doing nothing.”
Malloy, who tried not to take a firm position on tolls until the public got a chance to vote on a transportation lockbox at the polls this November, took the bold step of directing his state agency to conduct a comprehensive assessment of tolling Connecticut’s highways.
Malloy said the study would give the legislature “options.” At the moment, the state is facing a current year budget deficit of just over $500 million and is expected to face deficits of about $2 billion over each of the next two years.
Malloy emphasized that even with the Bond Commission approval, “none of this money will be expended until at least the spring of next year.”
“A new Governor and a new legislature will be in session and can do whatever they please if they disagree with this action, before one dollar is spent,” Malloy said. “But we need to allocate the funding now if we want qualified vendors to actually reply to an RFP.”
The toll issue has been a hot topic in the gubernatorial debates leading up to the November election. Danbury Mayor Mark Boughton, one of the Republicans seeking the nomination in the Aug. 14 primary, said that he would “lay across I-95” if he had to to stop tolls from being installed.
But Malloy believes he’s doing a favor to the next governor, who will immediately face a two-year deficit of around $4 billion.
The crux of the toll discussion is the ongoing downward pressure on the state’s Special Transportation Fund. As vehicles become more fuel efficient or completely electric, the fund will continue to become more insolvent as each year goes by — an issue with which states all across the nation are grappling. And because Connecticut is a small state, interstate drivers can easily avoid filling their tanks at Connecticut prices, generally speaking.
Since 2013, at least 26 states have responded to the issue by increasing gas taxes, including seven states in the last year alone.
Proponents of highway tolls say the state has lost tens or hundreds of millions out-of-state-driver dollars per year by depending only on the gas tax for transportation revenue since removing tolls in the early 1980s.
The flat motor vehicle fuel tax in Connecticut was reduced in 1997 from 39 cents to 25 cents per gallon and has not changed since. However, the state’s second gas tax — called the Gross Receipts Tax — was capped in 2012 at a percentage of no more than $3 per gallon.
The Gross Receipts Tax had been 7.53 percent of the wholesale price of gasoline, so the levy would balloon or shrink with that wholesale price.
But following years of volatility in the market, the legislature in 2012 passed, and Gov. Malloy signed, legislation to cap the taxable wholesale amount at $3 per gallon. The rate had already been scheduled for an increase the following year, from 7.53 percent to 8.81 percent. So since 2013 the rate has been 8.81 percent of up to $3 per gallon, or up to 26.43 cents.
That puts Connecticut’s gas taxes at a maximum of 51.43 cents per gallon, which ranked the state sixth highest in 2017 behind Pennsylvania, Washington, Hawaii, New York, and Michigan.
The federal government charges a flat 18.4 cents per gallon for regular gasoline and 24.4 cents per gallon for diesel, which puts the total tax on a gallon of gas in Connecticut at up to 69.83 cents for regular gas or 75.83 cents for diesel.
Markley is also running for lieutenant governor in a three-way primary. One of his opponents, Darien Mayor Jayme Stevenson, dismissed the injunction as election-year grandstanding in a statement:
“Senator Joe Markley is a dangerous ideologue,” Stevenson wrote. “He is now tying up the courts with costly political grand standing on the reversible toll study to avoid debating me. Joe can’t defend his horrible voting record on protecting young women from sexual assault and other bizarre votes. Neither Joe Markley or Erin Stewart can defend their records and are refusing public debates.”
Markley’s other opponent, New Britain Mayor Erin Stewart, said Malloy’s study is one of the first things she would seek to reverse if she is elected.
“It’s a good thing that Governor Malloy will not be on the ballot in November, and therefore the next Republican administration will have the opportunity to undo many of his wrongdoings,” Stewart said. “I want to be a part of that and as the next Lt. Governor — this $10 million toll study would be one of the first things I would suggest we undo.”