California Dump Trucks v. CARB

1940 Chevrolet Dump Truck
1940 Chevrolet Dump Truck, Redwood City, CA

The California Dump Truck Owners Association (“CDTOA”) filed suit in February 2011 against the California Air Resources Board (“CARB”).  The suit alleges that CARB’s Truck and Bus Regulation, which is part of the suite of regulations under AB 32 to address greenhouse gas emissions, is unconstitutional.

CARB’s Truck and Bus Regulation sets stricter emissions standards for dump trucks and other diesel-fuel vehicles.  The regulation requires particulate matter retrofits beginning in 2012, and will require replacement of older vehicles beginning in 2015.  Note that these retrofits and replacements will address a variety of public health concerns from diesel particulate emissions, not just greenhouse gas emissions.

CDTOA, in their press release, makes the case that these retrofits and replacement requirements are economically devasting to their members.  According to CDTOA, the majority of its members are sole proprietors, that is, one-truck independent owner-operators.  A new CARB-compliant truck costs more than $150,000, and resale value of the old trucks has decreased dramatically due to the new regulations.  Furthermore, CDTOA argues that retrofit devices cost tens of thousands of dollars and are mechanically unreliable.

Curiously, CDTOA makes no mention of EPA’s Clean Diesel Campaign in its press release.  EPA’s program includes funding assistance and state grants.  In January 2011, President Obama signed the reauthorization of the Diesel Emission Reduction Act, which will provide additional funding.  EPA reports that the program is an excellent value: for every $1 spent, $13 in health and environmental benefits have been achieved.

Parker Hannafin Corporation has been field testing a new hybrid drive train, RunWise, in fleets of garbage trucks in Florida.  That hybrid train has now been placed on EPA’s Emerging Technologies list, as part of its Clean Diesel Campaign.

Perhaps CDTOA is correct that more needs to be done to help independent owner-operators upgrade their dump trucks.  But it looks like a promising future for cleaner diesel technology and more efficient dump trucks in particular.

BTW, CDTOA has advanced a curious legal argument.  CDTOA alleges that CARB’s regulation violates the Supremacy Clause because it supposedly conflicts with the Federal Aviation Administration Act of 1994.  49 U.S.C. § 14501(c)(1) has a preemption clause:

[A] State, political subdivision of a State, or political authority of 2 or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier . . . or any motor private carrier, broker, or freight forwarder with respect to the transportation of property.

CDTOA alleges that CARB is thereby preempted from regulating diesel emissions of its members, because the regulation “directly impacts the price, route, and service” of its members.

I said that this is a curious legal argument because CARB’s diesel regulation seems to have no relation to the types of regulation meant to be prohibited by the Act.  Here is President Clinton, at the signing of the Act in 1994:

State regulation preempted under this provision takes the form of controls on who can enter the trucking industry within a State, what they can carry and where they can carry it, and whether competitors can sit down and arrange among themselves how much to charge shippers and consumers. . . . New carriers will be able to enter the trucking industry, particularly women-and minority-owned carriers who may have been “frozen out” in the past by strict entry controls.

From what I can tell, CARB’s regulation has no effect on who can enter the trucking industry.  It merely requires emissions standards of the industry as a whole.  Certainly, the emissions requirements will make the price of entry more expensive, but it will also create costs for existing participants in the industry, as CDTOA points out.

The CDTOA complaint presents a losing argument because it attempts a linguistic slight-of-hand.  CDTOA would have the court believe that the Act prohibits States from “directly impacting” price of its members’ services.  But the Act actually prohibits States from passing regulation that interferes with pricing autonomy of CDTOA’s members.  CARB’s regulation does not affect the ability of CDTOA members to increase prices commensurate with the increased cost of providing the dump truck service.  It just cannot be the case that California is prohibited by the FAAA from imposing any regulation or licensing scheme on dump truck owner/operators that may cause them economic hardship.

Dump Truck Image is Creative Commons licensed: http://www.flickr.com/photos/braintoad/1511425564/.

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Reader Comments

6 Replies to “California Dump Trucks v. CARB”

  1. I suppose that they are hoping that they get a textualist judge (and appellate panel) who rules that “related to” means “anything even vaguely have to do with”. It was Scalia, in a pre-emption case a few years back, who said that “everything is related to everything else” — a very Yogic statement coming from him. It’s a stretch, but if they get 9th Circuit panel of, say, Bybee, Kleinfeld, and O’Scannlain, then they’ll win.

  2. Your Comment: “From what I can tell, CARB’s regulation has no effect on who can enter the trucking industry.” Are you [email protected]#$#ng kidding ! when you are forcing small business to pony up hundreds of thousand of dollars to enter and compete in this this industry by requiring 2010 compliant trucks you effect this industry and since most construction trucks are seasonal we have to pay for this underground regulation in a very few months working season. you speak of bill clintons intent to allow women and minorities into the industry see how many can crack that nut.
    Your comment: “The suit alleges that CARB’s Truck and Bus Regulation, which is part of the suite of regulations under AB 32 to address greenhouse gas emissions, is unconstitutional.” simply there is no reference to AB32 in the lawsuit you have intentionally tried to tie the two together to lie to the public for your own enviro-terrorist pursuit. How can you quote Obama when he has publicly said he intends to gut the diesel retro funding and funding for us small guys is unattainable in reality.

  3. CARB has promoted there existence by sinking there claws into everything but, what they were entrusted to, as the stewards for the california environment they now feel they can circumvent Congress by writing Federal EPA standards and subjecting the nation and world to the intolerable cruelty of California Liberalism. Maybe I should get my phd on line as Mary Nichols employees do and land a 100k job at CARB. And when I am outed by the public and Mary Nichols admits to her board, well they can cut my pay to 90k and keep on lying.. Mary Nichols and her band of enviro thugs need a day in court and a few years of incarceration.

  4. Rheid,

    You completely missed the point and the basis of this lawsuit. The suit has NOTHING to do with AB32, GHG or global warming. It has everything to do with Particulate Matter (PM) being designated Public Enemy #1 by CARB based on poorly designed retrospective research analysis gathered and synthesized by a CARB underling that lied about his Phd in Statistics. Even if you wish to ignore all the confounding factors of why Asthma rates are higher in Urban ares next to ports and freeways ( heavy metal and silicate particulates from tires and catalytic converters etc) and take removing PM as a good idea in general, the approach taken by CARB has more immediate negative public health impacts than the PM they are trying to eliminate.
    Unemployment and family business failure has well known and described negative health impacts. Yet NEVER does CARB look at the true immediate consequences of it’s action. Instead they put out an economic impact statement in terms of dollars and cents. Well those monetary figures have a meaning in terms of life and death for many families, but CARB’s short sighted analyses leave those most effected off the impact report.
    As a legal beagle you don’t have to deal with unemployed uninsured families using the Emergency Room as their Family Practice Clinic, but as a physician, I DO. Unlike you, I am not allowed to turn these folks away. How much “Pro Bono” work comprises your practice? Mine is now 75% of all the patients I see, but I don’t have a choice in the matter.
    Perhaps we should pass a law in California that anyone that walks into a legal office in need of legal aide cannot be turned away. Perhaps then academics like yourself will actually have a palpable sense of the economic impact of your work and its effect on the public’s welfare.

  5. It seems ironic to me to connect more stringent PM regulation in particular with adverse health or economic outcomes. Is there research that supports the idea that PM regulation results in the adverse health outcomes you mention? The other problem you identify – uninsured families, and the linkage between health insurance and employment – seems to involve a different problem, one that (as you surely know) Congress enacted legislation last year to attempt to deal with. The Air Resources Board can’t solve that problem, but it can work towards solutions that are epidemiologically sound and that attempt to maximize health benefits compared to costs.

    On that front, fine particulate regulation seems to be a winner, based on research. The White House Office of Management and Budget – hardly an advocate of stringent regulation – noted in its most recent (draft) report that “The large estimated benefits of EPA rules are mostly attributable to the reduction in public exposure to a single air pollutant: fine particulate matter. Of its 21 air rules, the rule with the highest estimated benefits is the Clean Air Fine Particle Implementation Rule, with benefits ranging from $19 billion to $167 billion per year. ” While the costs of implementation are high, the benefits are far higher.
    http://www.whitehouse.gov/sites/default/files/omb/legislative/reports/Draft_2011_CBA_Report_AllSections.pdf
    The conclusion by OMB that PM regulation has serious economic benefits has been constant, through Republican and Democratic administrations. (See, for example, http://www.whitehouse.gov/sites/default/files/omb/assets/omb/inforeg/2006_cb/2006_cb_final_report.pdf.)
    As for the Air Resources Board’s specific findings on PM: here is the most recent document the Air Resources Board issued to explain its conclusions: http://www.arb.ca.gov/research/health/pm-mort/pm-report_2010.pdf.
    It relies, as far as I can tell, on EPA’s methodology. Readers can judge for themselves.

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