Democratic Gov. Janet Napolitano overstepped her authority by launching a pilot program that will prohibit bi-fuel vehicles with a lone driver from using Phoenix freeway car pool lanes during rush hours as now permitted by state law, Republican lawmakers said Feb. 12.
“It’s going to create, if it hasn’t already in my opinion, a constitutional crisis,” said Senate Majority Leader Thayer Verschoor, R-22.
Napolitano on Feb. 9 announced an agreement between the state and the Federal Highway Administration to allow several models of hybrid cars to use the car pool lanes during rush hours with a lone driver while prohibiting the bi-fuel vehicles. Through a spokeswoman, Napolitano said the bi-fuel vehicles didn’t rate special treatment.
Hybrid vehicles run alternately on either gasoline or self-generated electricity, while bi-fuel vehicles typically use gasoline but also are equipped to use an alternative fuel such as compressed natural gas.
Napolitano’s action effectively overturns a state law, said Verschoor, who formerly served as Senate Transportation Committee chairman. “I don’t know how we allow that to happen as a body,” Verschoor told fellow senators during a floor session.
The current Transportation Committee chairman, Republican Ron Gould of Lake Havasu City, denounced Napolitano’s action as “government by fiat” that tramples the balance of power between the branches of government.
“I don’t know that there’s a basis” for Napolitano’s order, Gould said.
Tim Nelson, Napolitano’s top staff lawyer, later said Napolitano’s action was legal because the state law permitting bi-fuel vehicles to use the high-occupancy vehicle lanes conflicted with federal law.
“These are not state highways. These are federal highways,” Nelson said during an interview. “It’s an obvious case of federal jurisdiction.”
Asked whether Napolitano should have sought a change in state law, Nelson said the governor wouldn’t object if lawmakers moved to change state law to make it conform to the federal law.
Napolitano and Republican lawmakers have clashed several times over separation-of-power issues.
GOP lawmakers sued her twice to claim that some of her line-item vetoes were unconstitutional, winning one lawsuit and losing another, and they also said Napolitano overstepped her authority by launching a prescription drug program through an executive order.
Arizona Department of Transportation spokesman Doug Nintzel said Feb. 12 that freeways with car pool lanes include Interstates 10 and 17, U.S. 60 and State Route 51.
Nintzel said all were either built with federal transportation dollars or eligible for federal funding. ”That would be the reason for following the federal guidelines” on uses, he said.
In announcing the agreement, Napolitano said allowing hybrid vehicles to use car pool lanes provided an incentive for motorists “who make the commitment to clean air and energy efficiency.”
However, Napolitano said Feb. 12 that a side benefit of the agreement was that many of the bi-fuel vehicles aren’t fuel efficient and that keeping them from car pool lanes “put some punctuation on the alt-fuel fiasco,” spokeswoman Jeanine L’Ecuyer said.
Many of the bi-fuel vehicles are large pickups and sport utility vehicles that were converted to run on either compressed natural gas or propane in addition to gasoline under a state alternative-fuel vehicle subsidy program.
The subsidy program had to be dramatically scaled back in 2001 because its generous tax breaks proved too costly to the state.
“It’s time to get this truly and completely behind us and this does that,” L’Ecuyer said.
Approximately 9,000 hybrid cars _ either Honda Insight, Honda Civic Hybrid or Toyota Prius models _ are registered in Arizona, according to the state. About 10,000 bi-fuel vehicles are registered in the state.
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