Law is clear: Bertha overruns are not state burden

The attempt to run a highway underneath downtown Seattle has become such a fiasco that it may come to rival Boston’s Big Dig in notoriety.

Part of the fiasco is the effort to wriggle out of the Legislature’s 2009 decision to cap the state’s risk at $2.8 billion. In plain English, lawmakers specified that further overruns would be borne by those who stood to profit handsomely from the project, which is to replace the Alaskan Way Viaduct that carries state Route 99 through Seattle.

That overrun protection is becoming increasingly important as Bertha — the massive drill boring the tunnel — remains stuck 60 feet underground with the meter running. A year ago December, Bertha ground to a halt a ninth of the way into its 1.7-mile journey. The $80 million machine now needs an expensive overhaul, and the most optimistic estimate for the project’s completion has slipped from November 2016 to August 2017.

It’s hard at this point to figure out who’s to blame. We want to believe it’s the Japanese manufacturer or the contractor, Seattle Tunnel Partners, as opposed to the state Department of Transportation. STP appears to have ignored a clearly marked steel pipe on the route, which Bertha hit.

If the blunder belongs to the partnership, it will own the overruns. But people who build tunnels tend to be pretty good at shifting unexpected bills to their government employers.

In the meantime, the tunnel project keeps making headlines in a bad way — cracking walls and a street in Pioneer Square, for example. The delays heighten the risk that the viaduct itself may have to close before the alternative is open, pushing commuters into city streets and Interstate 5 lanes, paralyzing the urban heart of Western Washington.

None of this is good publicity for the DOT. Washingtonians who don’t follow the fine details are getting an overall impression of incompetence — which erodes political support for transportation improvements needed elsewhere in the state.

It gets worse. If some Seattle and state leaders have their way, Bertha will not only undercut support for future projects in other parts of the state, its overruns will also gnaw directly into funding for projects already in the pipeline.

Lawmakers anticipated this scenario in 2009 when they specified $2.8 billion as the hard cap on the state’s share of the tunnel. They drew the line there because Seattle’s political leaders had rejected a rebuild of the viaduct, the least expensive option, and pushed for the more expensive tunnel.

Going underground offered big advantages for the city. Removal of the viaduct promised to open up the waterfront to downtown Seattle and to set the stage for a wave of new development on the shores of Elliott Bay. Downtown property owners and the city government stood to profit immensely — hence the Legislature’s mandate that those who reaped the benefits should also share any unbudgeted costs.

Seattle leaders have never liked that provision, and they’re liking it less and less as the project’s troubles multiply. State officials who need the city’s votes, including Gov. Jay Inslee, have said the requirement is unenforceable.

The issue may yet turn out to be moot. But if the contractor doesn’t shoulder the overruns, we’re going to revisit some legislative history.

Simply put, there would be no project — Seattle wouldn’t be getting a viaduct replacement — if it weren’t for the cap. The 2009 Legislature would never have approved the funding without that backstop. It wouldn’t even have come to a floor vote in the House; House Speaker Frank Chopp, D-Seattle, insisted on its inclusion.

The overrun proviso is hardly a minor detail to be brushed aside at the behest of Seattleites. It was the very condition of the tunnel’s approval. To Washingtonians outside the 206 area code, it was the legal assurance that Bertha wouldn’t devour the funding for their own projects.

If things turn out badly beneath Seattle, state lawmakers will have to teach a refresher course on the original deal.