The Columbia River Crossing lives.  At least for now.  After the Washington legislature balked at funding its $450 million share of the project’s budget in June 2013, Oregon pushed forward with plans to construct “Phase 1” of the project.  The Oregon-led Phase 1 would pare back the original scope of the project by eliminating all I-5 interchange improvements north of Washington’s SR 14.  Coming it at over $2.7 billion, the project would include construction of the new bridge spans, light rail facilities from Portland’s Expo Center to Vancouver’s Clark College, I-5 interchange improvements in Oregon, and I-5 interchange improvements in Washington at SR 14.  Without Washington’s contribution, funding would primarily come from federal funds, funds from the State of Oregon, and financing backed by tolling revenue.  See ODOT’s project webpage for more details.

Uncertainty still surrounds the project, though.  As has been well-covered in the media, an analysis of prospective tolling revenue shows it could arguably support the financing of a significant part of the project’s cost.  (The Oregonian: January 7, 2014).  Oregon’s Treasurer, however, still needs convincing that Oregon can legally and effectively collect the tolls.   (The Columbian:  January 10, 2014).   Beyond this, at recent hearing in Salem, legislators did not exactly give the project’s proponents a warm reception.  (The Oregonian:  January 14, 2014).  All of this is not to say that Phase 1 will not move forward; just that the project continues to face substantial challenges.

Beyond the financial and political questions, legal questions also remain.  While the General Counsel Division of Oregon’s Department of Justice opined in a September 12, 2013 memorandum that ODOT has the authority, given certain necessary agreements with the State of Washington, to move forward with the financing and construction of project elements located in Washington, DOJ has made clear that ODOT does not have the power to acquire right of way through eminent domain in the State of Washington.  To this point, the memorandum states as follows:

This proposal implicates key attributes of state sovereignty.  For example, the State of Oregon is without authority to exercise eminent domain outside its borders.  Moreover, we are informed by attorneys in the Washington Attorney General’s Office that WSDOT cannot transfer title to WSDOT right-of-way to ODOT.  Thus, ODOT will need WSDOT to secure right of way for the bridge touchdown and corresponding connections to SR-14 and provide ODOT with a long-term lease or other permit to occupy WSDOT right-of-way for, at minimum, the repayment period of Oregon’s bonds, which could exceed 30 years.  We are further informed by WSDOT’s counsel that WSDOT engineering approval must be granted to locate Oregon highway facilities on WSODT right-of-way and link it to the Washington state highway system.

Oregon DOJ memoranda and the “information” of attorneys in the Washington AG’s office may provide preliminary guidance to the project’s decision makers on “key attributes of state sovereignty,” but, if and as the project moves forward, actions based upon such guidance will likely be subject to judicial scrutiny.

On all counts, it should be interesting.  Stay tuned.