Nashua, Lowell commuter line plan derailed

CONCORD – The state can’t spend gas tax money on railroads, the state Supreme Court ruled this morning.

A 1938 amendment to the state Constitution specifically and clearly forbids it, the court ruled.

The ruling derails the state’s plan to spend gasoline and diesel fuel tax revenue to build a commuter rail line linking Nashua to the Massachusetts Bay Transportation Authority line in Lowell, Mass.

Planners envision a railroad carrying passengers from Nashua, Manchester and Concord to Boston or beyond, but the project has been stalled by funding questions.

In December 2002, the New Hampshire Motor Transport Association, a group representing the trucking industry, sued the state, arguing fuel taxes can be spent only on state roads.

The state collects 18 cents on every gallon of fuel pumped into lawnmowers, motorcycles, cars and trucks. The money is spent to study, patrol, build and maintain state roads, such as Routes 101, 111, 130 and the F.E. Everett Turnpike, to name a few.

At the Constitutional Convention of 1938, lawmakers worried fuel tax revenues might be siphoned off to fund other projects. To protect the emerging state highway system, they passed Article 6-A, stating that fuel tax and toll revenue must be spent “exclusively for the construction, reconstruction and maintenance of public highways within this state, including the supervision of traffic thereon.”

In a unanimous opinion written by Chief Justice John Broderick, the high court ruled that “public highway” means just what everyone thinks it does, and that lawmakers meant what they wrote.
“The amendment established a funding source for the construction, reconstruction and maintenance of the state road system, nothing more,” Broderick wrote.

The court dismissed the state’s argument that passenger railroads are actually “public highways.” Though railroads were once considered public highways, that usage fell from favor with the ascent of the automobile, the court noted.

The court also rejected the argument that commuter rail benefits highways, because passengers might otherwise be creeping down Route 3 in bumper-to-bumper traffic, doing their share to pollute the air, wear down the pavement and contribute to the overall stress and anxiety of rush hour.

Reducing air pollution helps everyone, not just motorists, so that’s not a legitimate use of fuel tax money, the court ruled. As for easing traffic congestion, the court quoted a 1992 ruling by the state attorney general’s office that such “beneficial effects” of public transportation don’t really count, being “indirect and difficult to quantify in any meaningful way.”

While the federal government has allocated about $26 million for the commuter rail project, those funds won’t be released unless the state agrees to pay its share. Without fuel tax money, the state would need to find another source of funds.

Having lost the argument, the state may also have to foot the bill. The high court sent the case back to Merrimack County Superior Court, for a judge to determine “reasonable attorney’s fees” for the state to pay the transport association.

The court based that ruling on the fact that the truckers’ lawsuit will benefit highway users, since it blocked an unconstitutional attempt to divert fuel tax money.

Andrew Wolfe can be reached at 594-6410 or