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December 5, 2011

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PAGE 2 NEWS December 5, 2011 • Law Times New bridge causing legal headaches for Windsor BY RON STANG For Law Times DETROIT — It would be "unconstitutional" for the governor of Michigan to move unilaterally in order to get an agreement with Canada to build a new bridge between Windsor, Ont., and Detroit, according to a Wayne State University law professor. Th ere has been speculation that Gov. Rick Snyder might seek an executive order after a state senate subcommittee failed to back leg- islation in October to join with Canada to build the bridge connecting Highway 401 and U.S. interstates. Snyder himself has since told trade groups in Cana- own new six-lane bridge immediately beside the exist- ing structure and argue their span wouldn't cost taxpay- ers a cent. Th e government-backed bridge, by contrast, would be a public-private partnership with government oversight. But according to Wayne State professor Robert Sedler, the governor can't do an "end run" around the legisla- ture. "Th ere simply is no provision of the constitution that remotely . . . gives him the power to commit the over the signifi cant engineering problems to the private owners and allowed them a franchise that the present-day Detroit International Bridge Co. has inherited. Dan Stamper, Ambassador Bridge president, said a 2005 opinion from the U.S. Department of State, based on the 1921 charter, "includes the right . . . to build a twin span." Stamper noted that both bridge proposals will have The operation of both bridges is going to be similar. The difference is one costs about $400 million; the other is going to cost about $2 billion. da that he wants movement on the bridge issue within months despite the senate's rejection. "You will be look- ing at months, not years," he said in Ottawa on Nov. 2. Th e controversial bridge has been in the proposal stage for several years, and the Canadian federal govern- ment has off ered cash-strapped Michigan $550 million to jump-start the project. Ottawa, Queen's Park, and Washington are all behind the bridge, and Ontario has already started work on a $1.4-billion expressway lead- ing to the site. Th e stumbling block is Michigan, where mainly Republicans in the state legislature have balked at the project over concerns that vehicle traffi c isn't suf- fi cient to pay back Canada through tolls. Currently, traffi c fl ows over the 82-year-old Ambas- sador Bridge. Its owners are proposing to build their state of Michigan to the enormous fi nancial and legal consequences of owning a bridge," Sedler told a panel organized by his law school's international legal studies program and the Michigan state bar's international trade committee. "You need a law and only the legislature can enact a law." Sedler, who had previously written a legal opinion for the Ambassador Bridge company on the constitutional question of a new structure, also explained why this vital trade link is in private hands, a fact that confounds critics who say the owners wield too much power over a sig- nifi cant border crossing. He noted the U.S. Congress and Canada's Parliament passed reciprocal legislation in 1921 that gave franchises to companies on both s ides of the border to build and operate a bridge where governments feared to go. In doing so, Washington and Ottawa turned a private fi rm investing in and operating the structure. "Th e operation of both bridges is going to be similar," he said. "Th e diff erence is one costs about $400 million; the other is go- ing to cost about $2 billion." According to Stamper, the $550 million that Canada put on the table was an eff ort to persuade the Michigan legislature to vote for the government bridge and was akin to a bribe. "Had we ever done any- thing like that, it would be illegal and we'd go to jail," he said. "But for Canada and the political system, it's OK." As for the Ambassador Bridge's proposed new span, a representative of a Detroit community group says the company hasn't undertaken an extensive review under the U.S. National Environmental Policy Act that the proposed government bridge has undergone. "Th ere's been no public engagement under their process," says Simone Sagovac of the Southwest Detroit Community Benefi ts Coalition. Meanwhile, border issues, including those related to the bridge, have been costing the City of Windsor sig- nifi cant legal fees. Th e Ontario Municipal Benchmark- ing Initiative has reported that the city spent more on outside legal counsel than 11 other Ontario municipali- ties in large part because of issues like fi ghting a lawsuit against the Ambassador Bridge over a property devel- opment freeze and negotiations with the province over the route of the new border expressway. Th e city hired pricier outside lawyers for their expertise in order to free in-house counsel for day-to-day matters, according to city offi cials. In 2010, the city spent at a higher billable-hour rate of $650 compared to the median of $370. In contrast, Ottawa spent at a billable-hour rate of $247. 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Choose the interactivity of a live presentation, or the flexibility of a recorded session. To learn more and to register, visit cba.org/pd/sls INFLUENCE. LEADERSHIP. PROTECTION. Untitled-1 1 www.lawtimesnews.com 11-11-28 9:13 AM

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