2021 Leg Session, Colorado Department of Transportation, El Paso County, Environment, Gold Dome, Governor Polis, Original Report, Politics, Scott Weiser, TABOR, Taxes, Transit, Transportation, Uncategorized

Critics call foul over transportation bill funding; ‘violates intent’ of both TABOR, Prop 117

DENVER–A 207 page, $5.3 billion transportation funding bill now being considered by the legislature, Senate Bill 21-260, fundamentally transforms the focus of transportation planning in Colorado.  But according to critics, the manner in which the bill is funded evades both the Taxpayer’s Bill of Rights (TABOR) and a law limiting the creation of state-run enterprises passed by voters in the 2020 general election.

TABOR is a constitutional amendment that, among other things, requires voter approval for new or increased taxes and limits growth of a portion of the state budget to a formula of population growth plus inflation.

Sponsored by Senators Stephen Fenberg, D-Boulder and Faith Winter, D-Westminster and Representatives Alec Garnett, D-Denver and Matt Gray, D-Broomfield, the Democrat-controlled state Senate approved the bill last week and sent it to the House of Representatives where it will face its first committee hearing on Monday, May 24.

“The problem with [the scheme] is that it’s just not meeting the intent of the [new enterprise] law, and it violates the intent of TABOR,” El Paso County Commissioner Stan VanderWerf told Complete Colorado in an interview.  

Last year, riled at the proliferation of state-run enterprises that can evade TABOR by collecting revenue as “fees” rather than seeking approval at the ballot for tax increases, voters told the government to ask them before using the enterprise scheme by passing Proposition 117. The citizen-initiated law requires that any new state-run enterprise with projected or actual revenues from fees or surcharges of more than $100 million in its first five fiscal years must be approved by voters in the same way increases in taxes must be approved under TABOR. 

“I did get a chance to speak to the governor and he said that his lawyers tell him that it does not violate the letter of the law,” VanderWerf continued. My argument is I really don’t care whether it meets the letter of the law, it does not meet the intent of the law.” 

The El Paso County Commission has formally opposed the transportation bill, along with separate legislative effort to create a Front Range Passenger Rail taxing district.

Multiple new state enterprises created

To evade the $100 million restriction, SB-260 creates five different state-run enterprises funded by fees imposed on retail purchases that the retailer delivers to the customer, as well as imposing a per-gallon fee on motor fuel purchases at the pump.

In a recent Complete Colorado opinion piece, Independence Institute fiscal policy director Ben Murray notes that the bill “will create approximately $3.8 billion in new fees Coloradans will pay on common purchases such as gas, food delivery, ridesharing, rental cars, and more.”

The proponents spend 11 pages of the bill in a legislative declaration claiming that the enterprises are not serving primarily the same purpose,” as prohibited by Prop 117, and therefore funding does not have to be “aggregated” when it comes to calculating the $100 million limitation, which would trigger a public vote.  This despite all of the enterprises serving the same overall transportation and environmental goals of the Polis administration.

The bill’s fiscal note says, “The bill increases the state TABOR limit by $224,957,602, reverting the reduction made by the General Assembly in Senate Bill 17-267.”

The Community Access Enterprise is for the purpose of supporting the widespread and equitable adoption of electric motor vehicles and electric alternatives to motor vehicles in an equitable manner.” 

The Clean Fleet Enterprise is “for the purpose of incentivizing and supporting the use of electric motor vehicles and other clean fleet technologies by owners and operators of motor vehicle fleets.” 

The Statewide Bridge and Tunnel Enterprise imposes impact fees on motor fuels as well as a retail delivery fee. 

The Non-attainment Area Air Pollution Mitigation Enterprise can impose “air pollution mitigation per ride and retail delivery fees.” 

The Clean Transit Enterprise is for the purpose of supporting clean public transit through electrification planning efforts, facility upgrades, fleet motor vehicle replacement, and construction and development of associated electric motor vehicle charging and fueling infrastructure.” 

This scheme would allow each enterprise to impose its own self-determined fees without having to get approval from voters under TABOR and without annual appropriations oversight of the General Assembly. 

Statewide, every retail delivery would be charged four or five different “fees” for not driving to a store to shop, on top of sales, use, ownership, excise and other existing taxes, and consumers will pay more at the pump without voting on a gas-tax increase.

‘False advertising at best’

Tom Norton, a former Colorado Senate President and executive director of the Colorado Department of Transportation (CDOT), thinks the proponents of the bill aren’t being honest with the public. 

What they are trying to do is convince people to pay for environmental changes that need to be made while calling it a transportation funding bill,” Norton told Complete Colorado in an interview. The problem is when you tell the public that you’re doing a transportation bill and 80% of it goes to things other than what people think of as transportation and 20% goes to roads and bridges, that’s false advertising at best.

VanderWerf pointed out that one of the rationalizations in the bill doesn’t hold water.

The proponents claim that delivery vehicles “are among the dirtiest” on the highways and are adding to the pollution burden, which justifies imposing a retail delivery fee to pay for mitigation. 

A 2019 analysis of vehicle trips by the Washington State Department of Transportation found that 42% of trips were for “family and personal errands,” 27% were “social and recreational,” and 16% were for commuting.

The Federal Highway Administration 2017 National Household Travel Survey says 19.5% of daily non-commercial vehicle trips nationwide were related to shopping and errands.

The proponents seemingly ignore the fact that each delivery vehicle going to multiple households on a route replaces car trips to brick-and-mortar stores by those same customers, which reduces vehicle-caused air pollution.

Of course they don’t point that out,” said VanderWerf. “Having a delivery vehicle delivering to multiple homes on a single trip is a way to save on fuel. I don’t know why they don’t talk about that. I think there’s another agenda going on here.” 

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