Beware ‘anti-PPP’ legislation on Capitol Hill, warns law firm

Allen & Overy in a recent client memo stressed that legal opposition to privatisation is finding an audience in Washington, DC, and warned that the industry better do something to stop it.

Global law firm Allen & Overy is cautioning that a spate of “anti-P3 and anti-tolling legislation” is working its way through US Congress and is “all but assured” passage in the Senate.

The firm offered its take Monday in a client memorandum, calling the public-private partnership (PPP) market “vulnerable to a legislative ambush” via a “more inventive and subtle” effort to persuade Capitol Hill to vote against privatisation. By the same token, Allen & Overy cited a “failure…to organise any meaningful opposition” to the pending legislation.

The memo in particular noted a March 8 bill to prohibit tolling Interstate 95 (I-95) in North Carolina by state representative, Republican Renee Ellmers. Ellmers in her bill is aiming to “forbid the Federal Highway Administration (FHA) from approving a pilot program” to toll I-95.

The North Carolina Department of Transportation (NCDOT) has proposed tolling as a method to improve and widen the corridor. Meanwhile, NCDOT is awaiting approval on an environmental impact statement (EIS) and a FHA review to use a PPP to construct a seven-mile, $500 million tolled bridge across the Currituck Sound inlet in North Carolina.

The firm also cited an anti-tolling act put forward by Senator Kay Bailey Hutchinson, a Texas Republican, which is seeking to prevent tolling in any interstate without an existing tolling system. Likewise, a bill proffered by New Mexico Senator Jeffrey Bingaman, a Democrat, is angling to “materially reduce the upfront payment” that a state or municipality would receive for a toll road concession.

“Heightened vigilance” on the part of the industry and public sector is the antidote to stem the wave of anti-PPP lawmaking, according to Allen & Overy. In 2010, Allen & Overy was appointed by the Puerto Rico Public Private Partnership Authority (PPPA).