The new fees, along with other funding sources set in motion by Senate Bill 21-260, are projected to raise $5.4 billion in the first 11 years to improve highways, boost transit systems and expand the use of electric vehicles. Starting July 1, the state will charge fees on purchases of gasoline and diesel fuel, retail deliveries, electric vehicle registrations, Uber and Lyft rides, and car rentals.
Lawmakers portrayed them as road user fees that would help fix Colorado’s infrastructure and pay for transportation alternatives that reduce greenhouse gas emissions. Recently, Gov. Jared Polis and legislators proposed delaying the initial 2-cent-per-gallon fees on gas and diesel until Jan. 1.
Even before Polis signed the bill into law last June, opponents of the new fee setup vowed to mount a legal challenge.
Americans for Prosperity and the Advance Colorado Institute argue in the new lawsuit, filed in Denver District Court, that some provisions of the law violate Colorado’s longstanding Taxpayer’s Bill of Rights. Those include violations of TABOR revenue and spending limits, along with a claim that the bill’s inclusion of a nearly $225 million increase in the annual state revenue cap — undoing a past bipartisan legislative compromise — violated both the state constitution and the single-subject requirement for legislation.
The lawsuit says several state enterprises set up to charge the new transportation fees run afoul of Proposition 117, an initiative that Colorado voters passed in 2020. Backed by some of the plaintiffs, the initiative sought to extend TABOR’s voter approval requirement for tax increases to large fee increases.
Prop 117 requires voter approval if a new enterprise would raise at least $100 million from fees in the first five years. The same limit applies if that threshold would be exceeded by the combined revenue of multiple new enterprises “serving primarily the same purpose,” according to the measure.
At issue is whether the new transportation enterprises have different enough purposes to keep their revenue from being lumped together, as the bill’s lead Democratic sponsors argued at the time. The bill passed mostly along party lines, though it drew the support of Sen. Kevin Priola, a moderate Republican from Henderson, who joined as a sponsor.
“The legislature’s sleight of hand is illegal,” the lawsuit says. “All of the new enterprises were created simultaneously. Under Proposition 117, they should have been submitted to the voters. Plaintiffs are therefore suing to vindicate voters’ rights and stop the government from illegitimately taking millions of dollars per year out of citizens’ pockets.”
Polis spokesman Conor Cahill declined to respond to the lawsuit’s arguments.
“We’re not going to comment on pending litigation related to this bipartisan transportation bill that is going to finally fix our damn roads,” Cahill wrote in an email, “but obviously we all agree that there should be federal gas tax relief, and the governor has also proposed state gas fee relief now.”
Lawmakers created four new enterprises to assess varying fees and also made use of a fifth enterprise that already existed. The sponsors argued, backed by some legal analysts, that each enterprise had a different purpose, ranging from increasing the community’s adoption of electric and cleaner-fueled vehicles to supporting transit.
The lawsuit’s plaintiffs are Americans for Prosperity, ACI president Michael Fields, Republican state Sen. Jerry Sonnenberg and Boulder County resident Richard Orman. The lawsuit targets the state of Colorado, Polis and the five state enterprises, among other defendants.
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