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From left, Department of Transportation Secretary Pete K. Rahn and Governor Larry Hogan. (The Daily Record / Bryan Sears.)

Md. E-ZPass fee reduction may run afoul of U.S. Constitution

A recently approved proposal to eliminate monthly charges for some commuters using E-ZPass may run afoul of the U.S. Constitution.

Last week, state transportation officials voted to eliminate a $1.50 per month charge for  675,000 state residents who have Maryland E-ZPass accounts while leaving in place the charge for out-of-state residents who have state accounts unless they use a Maryland toll road or bridge at least three times a month.

But an advisory letter written by an assistant attorney general in March on a proposed amendment to a bill similar to the approved toll-reduction plan raises questions about whether charging different fees based on residence would discriminate against interstate commerce and violate the Commerce Clause of the Constitution.

“While the first prong of the test ‘simply requires reasonableness,’ it may not be an easy one to meet where there is no charge for residents and $18 a year for nonresidents,” wrote Assistant Attorney General Kathryn M. Rowe, in an March 18 non-binding advisory letter to Del. Neil C. Parrott, R-Washington. “Clearly no approximation of use could result in a finding that residents do not use their E-ZPass or use it only in such a way that it cost the state nothing while nonresident passes cost $18 a year.”

Rowe goes on to write that she believes a court could conclude that the fee structure Parrott proposed for only nonresidents “would discriminate against interstate commerce.”

“For these reasons, it is my view that the proposed amendment raises significant constitutional issues under the Commerce Clause of the United States Constitution and could possibly be found invalid,” Rowe concludes in the letter.

State transportation officials, for their part, do not challenge Rowe’s letter but say they believe the policy, which was approved last week and takes effect July 1, is fair.

“Any time there is a policy change there is always the potential that someone will challenge it,” said Cheryl Sparks, a spokeswoman for the Maryland Transportation Authority, which operates and manages the state’s toll roads, bridges and tunnels. “We feel we are fairly treating users regardless of where they live.”

Sparks added that users of the electronic toll-payment device always have the option of opening an account in another state if they wish to avoid fees in Maryland.

Currently there are about 105,000 out-of-state residents who have Maryland EZ-Pass accounts. About 31 percent of those pay a monthly fee to maintain the account.

The account maintenance fee has been described by both Gov. Larry Hogan and Transportation Sec. Pete K. Rahn as one of the most hated charges imposed on motorists.

The electronic toll payment device allows drivers to pre-pay toll charges; a transponder placed in the vehicle allows payments to be made without stopping. The system is used in 17 states, mostly in the Mid-Atlantic and North East. Drivers can use the devices in any state that is on the system and can have an account that is registered in a different state than the one in which they live. Some Maryland residents opted to open accounts in Virginia and other states to avoid paying the monthly fee implemented in Maryland.

The fee elimination was part of a $54 million plan to reduce fees and tolls at facilities statewide and encourage more motorists to use the electronic toll payment device.

Critics of the plan approved last week complained that the public had little time to review or understand the proposal. The governor and transportation secretary declined to answer questions about the plan and did not release details in advance of last Thursday’s vote.

The elimination of the fees approved by the authority board is similar to a plan proposed earlier this year by Parrott, though the Washington County Republican’s amendment provided for no relief for out-of-state motorists who use Maryland toll facilities at least three times per month.

House Bill 408, sponsored by Parrott, would have eliminated the maintenance fee for all Maryland EZPass account holders regardless of residency. But when the bill, which would have reduced revenue by $6 million, got stuck in the House Environment and Transportation Committee, Parrott proposed reducing the fiscal impact by eliminating the fee for just Maryland residents who hold Maryland accounts.

Parrott said he briefly considered an amendment to eliminate the monthly fee for Maryland residents while keeping it in place for out-of-state residents until Del. Robert L. Flanagan, a member of the House Environment and Transportation Committee and former transportation secretary under former Gov. Robert L. Ehrlich Jr., raised concerns that the plan “might be a legal problem.”

Parrott sought the advice of the attorney general’s office and later withdrew his amendment.

“At that point, the bill wasn’t going to pass anyway,” Parrott said. “Of course, that’s just one opinion. I still think it’s a good idea.”

The House Environment and Transportation Committee unanimously voted against Parrott’s bill.

The Republican from Washington County praised Hogan and Rahn for eliminating the fee. He said it will make it easier and cheaper for residents in rural areas of the state to use toll roads and bridges in the state. Parrot downplayed the effect of the advisory letter on the elimination of the fee.

“I’m sure the governor has looked into it,” Parrott said. “I’m pretty confident that what they did, that they’ve checked into it and they know what they can do and what they can’t do and if there is an issue they’ll get it fixed.”