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Profit vs. people and the state’s infrastructure projects await state Supreme Court ruling

The outcome of a forthcoming Alabama Supreme Court case will impact every infrastructure project in the state.

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Construction on a new toll-free bridge across the Intercoastal Waterway in Baldwin County remains suspended awaiting a ruling by the Alabama Supreme Court after Montgomery County Circuit Court Judge Jimmy Pool halted construction, ruling against the state in favor of the toll bridge operator.

In May, Judge Pool issued a preliminary injunction claiming the Director of the Alabama Department of Transportation, John Cooper acted in “bad faith” when negotiating with the toll bridge company.

The outcome of the case will impact every infrastructure project in the state.

While the toll bridge operator, Baldwin County Bridge Company, celebrates a temporary victory, others worry a foreign company’s profits are being placed above the public safety of Alabama residents and tourists. There are also hints of one mayor’s dubious stance on the bridge project, with his opinions wavering with the winds fortune for his city. And then, as always in Alabama, there is the underlying suspicion that politics, not policy, is lurking in the background.

For years, a new free-access bridge to alleviate hazardous traffic conditions in Alabama’s coastal cities has enjoyed broad support from municipal and county state governments, with Gov. Kay Ivey saying the free bridge is a top priority of her administration.

However, objections to the new construction are being orchestrated 4,556 miles in Amsterdam, Netherlands, by the ultimate parent company of the Baldwin County Bridge Company that operates the toll-bridge connection.

Gulf Shores Mayor Robert Craft, a passionate advocate for the new bridge, says the issue is really about “public health and safety and quality of life” along Alabama’s coast.

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“We are so crowded down here throughout the year now, much more so than ever,” Craft said. “And there are two ways on an off this island,” and that’s a problem the new bridge will address, the mayor said.

Craft says multiple traffic studies have proven the need for a new bridge, also pointing to the fact that the main access road to and from the coast has an F-rating, meaning it is severely over capacity.

Around 8 million people visit the area yearly, and the current infrastructure was never designed to hold the large influx of traffic.

“We have an F-rated bridge, [which means it is operating over capacity]. It was designed to carry 42,000 cars a day,” said Craft. “Nine out of 12 months, it’s carrying 55,000 cars, 10,000 more than capacity, every day.”

Craft says that traffic congestion can quite literally mean the difference in life or death in health emergencies. He also knows that inadequate access roads exacerbate a dangerous situation during hurricane evacuation.

“You have no idea the challenges of evacuation during a hurricane,” Craft said. “And when you’ve got, especially an early season hurricane, and you’ve got a lot of visitors, evacuation is a major challenge.”

Previously Gina Maiola, spokeswoman for the governor, said that Ivey is “focused on creating a free access road to alleviate congestion in Baldwin County, and who could argue with that during beach and hurricane season?”

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Craft fears the contested new bridge is not about what is best for the citizens along the coast or some 8 million tourists who visit there each year, but is now about politics and corporate profits.

While Craft steered clear of specifics, court documents readily point to political intrigue, suspect negotiations and a mayor’s flip-flopping and surprising candor.

The new bridge project was halted when Judge Pool found that ALDOT had negotiated in “bad faith.” But court documents outlining state law and statute argue that “bad faith” is not a basis for dispute in these types of contracts. Moreover, the record shows that BCBC demanded a 50-year monopoly, which was an unrealistic demand for the state.

According to court records, “No Alabama appellate court has ever recognized the tort of ‘bad faith’ outside the limited context of insurance cases.” It further states, “Based on this Court’s settled precedents, sovereign immunity bars BCBC’s ‘bad faith’ claim, requires the preliminary injunction to be dissolved, and the case to be dismissed.” The state believes this is the ground in the case law on which the state Supreme Court must decide the case.

Another factor the state found unreasonable was BCBC’s demand for an exclusive 50-year contract during its contract negotiations with ALDOT.

However, in its court filings, BCBC admitted that “it has no contractual right to exclusivity” and that “competition is perfectly lawful, and is not ‘wrongful interference.'”

Much of BCBC’s case relies on an amicus brief filed by Orange Beach Mayor Tony Kennon, who court records claim can be “flexible.”

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Publicly Kennon is a strong opponent of the new toll-free bridge, but at times, he has held a different view, according to court transcripts.

In 2018, Kennon said the new bridge proposal “made perfect sense.” He further said, “And it never made sense from the beginning that one company could control access, ingress, egress into the public beaches and town. To this day, I can’t imagine what they were thinking when they negotiated this contract.” Kennon also concluded in 2018, “There is no need for additional studies. We’ve listened to the travelers and residents who must navigate our congested roads… [T]here is a desperate need for infrastructure expansion to and from the cities of Gulf Shores and Orange Beach.”

But today, he seems to hold a different position calling the new bridge a “boondoggle,” a “monstrosity,” and an “inferior product” that “defies logic.”

Records show that Orange Beach would receive a significant financial windfall should BCBC maintain its status quo.

Under BCBC’s final 2022 term sheet to ALDOT, according to court filings, “BCBC would pay Orange Beach a lump sum of $10 million, and $1 million each year for the next 50 years (a total of $60 million) if the New Bridge is not built.”

During his deposition in this 2023 case, Kennon testified that “Truth has a thousand degrees.”

At the condemnation hearing in 2018, in response to questioning from BCBC’s attorney, Kennon testified as follows:

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Q. You generally mean what you say, don’t you, Mayor Kennon?

A. Depends on the situation.

Q. Sometimes you don’t?

A. Yeah. Have you ever been a public servant?

Perhaps surprisingly, Judge Pool’s order relied heavily on Kennon’s testimony despite his prior position and statements.

The Alabama Supreme Court could issue a final order in the bridge case any day. How it rules will significantly affect the future of the state’s ability to construct roads and bridges, as the Association of County Commissions of Alabama pointed out in a recent amicus brief filed with the state Supreme Court. In its brief, the Association warns that if the court upholds Judge Pool’s ruling, it “threatens to flood the courts with litigation brought by people who are merely unhappy with a county’s decisions (and there is almost always somebody who will disagree with any decision). The necessity of defending against these suits will greatly increase the tangible and intangible costs associated with building and maintaining roads and bridges, all at the expense of the citizens of Alabama.”

As the Alabama Daily News first reported, “The organization clarified that it takes no position with the particular project in question, only arguing that the case could set a dangerous precedent.”

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“ACCA takes no position on the issue of whether the construction of the publicly funded bridge in question is a wise use of resources…The ACCA’s position is instead that these substantive issues are questions of policy and politics, and, as such, that they are beyond the bounds of judicial powers as set forth in the Alabama Constitution of 1901.”

The free bridge connecting Alabama’s coastal communities is not about profit; it should not be about what “Cooper said or didn’t say,” according to Gulf Shores Mayor Craft. According to Craft, it has always been about “creating a free access road to alleviate congestion in Baldwin County,” as Gov. Ivey believes, and ultimately about public safety and quality of life for all who live and vacation on Alabama’s beaches.

Bill Britt is editor-in-chief at the Alabama Political Reporter and host of The Voice of Alabama Politics. You can email him at [email protected] or follow him on Twitter.

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