A few weeks ago we updated you on the implementation of
Rhode Island’s truck-only tolling program. As stated in that article,
American Trucking Association (“ATA”) President and CEO Chris Spear
believed the Rhode Island scheme to be unconstitutional and was willing
to use whatever means necessary to fight the tolling program. The ATA
has begun that fight by filing a lawsuit in federal court to end the truckonly
tolling program.
On July 10, 2018, the ATA, along with three regional
transportation companies, filed their complaint in the United States
District Court for the District of Rhode Island naming the director of the
Rhode Island Department of Transportation (RIDOT), Peter Alviti, Jr., as
the defendant. The complaint alleges that the truck-only tolling system
employed by RIDOT violates the Commerce Clause of the United States
Constitution, and it seeks an injunction that would prevent enforcement
of the tolls in the future.
The Commerce Clause of the U.S. Constitution gives the United
States Congress the express authority “To regulate Commerce . . .
among the several States.” Generally, because Congress is
constitutionally charged with regulating “commerce” between the states,
there are certain things that the States, individually, cannot do.
Regarding the tolling, the ATA raises three arguments as to how Rhode
Island violated the Commerce Clause through this tolling program.
First, the ATA argues that the Commerce Clause makes it
impermissible for States to intentionally discriminate in favor of
domestic entities, and against out-of-state or interstate, entities by
charging the domestic entities less than the others through the tolling
scheme. This argument is based on alleged intent of the tolling scheme
to fall disproportionately on out-of-state and interstate truckers. In fact,
Rhode Island’s governor, in promoting the tolling plan, states that “the
majority of the burden is on out-of-state truckers and out-of-state
companies.” The scheme facilitates this favoritism by giving discounts
to trucks that make multiple trips in one day. When this discount is
accounted for, about 60% of the truck tolls would be charged to out-ofstate
trucks, while only 40% would be charged to in-state trucks.
Additionally, cuts have been made to the Rhode Island trucking
registration fees to offset some of the potential toll cost. Rhode Island
officials have not been shy about making public comments stating that
the tolls would fall disproportionately on out-of-state trucks and
businesses in order to win support.
The ATA’s next argument was that even if the Court were to find
that Rhode Island did not intentionally discriminate against out-of-state
trucks, the tolling scheme discriminates against them in its practical
effect. The ATA argues that the toll affects, almost exclusively, vehicles
more likely to be engaged in the interstate transport of goods, while
sparing those more likely to be operated by Rhode Island residents or
engaged only in travel within Rhode Island. The toll caps serve to limit
the burden on intrastate travelers which pushes the burden onto out-ofstate
and interstate travelers. Even though the stated goal is to raise
revenue for roads and bridges, the tolling scheme is designed to be
imposed on the largest trucks, those most likely to be engaged in
interstate commerce. This effect is propounded by the kickbacks given
to intrastate vehicles like the registration discounts and caps on tolls.
The final argument is slightly more technical. The Commerce
Clause requires that States calibrate fees they seek to impose on entities
engaged in interstate commerce to make sure that they are a fair
approximation of the tolled party’s use of the facility and are not
excessive compared to the benefit to the State. This argument is derived
from the program’s goal of raising revenue for roads and bridges. While
the toll is being levied only on the largest of trucks, automobiles, smaller
trucks, and other vehicles that use the bridges and highways also exert
wear and tear on the roads. Those vehicles, however, do not need to pay
for their wear and tear because they are not being tolled. It is only the
largest trucks, those most likely engaged in interstate commerce, that are
being tolled. Therefore, they are bearing all of the toll burden. United
States Department of Transportation studies show, for example, that
passenger vehicles are responsible for two-thirds of all bridge costs,
while combination trucks are only responsible for 20%. This shows how
disproportionate the burden is on large trucks under the Rhode Island
scheme.
We will be monitoring this lawsuit very closely because Virginia
has authorized the study of a truck-only tolling program along Interstate
81. The Rhode Island lawsuit will likely have a significant impact on the
future of that tolling program, and it is almost certain that Virginia
lawmakers will be paying attention to how the Court addresses these
arguments. The results will likely affect the process for considering
truck-only tolls here in Virginia and may affect the final proposal, if and
when that comes. Again, this is hot issue in the industry right now, and
we will be watching closely to see how the ATA, and other groups,
continue to fight back in this battle against trucking. Regardless of how
the fight in Rhode Island ends, the fight in Virginia is just beginning.
For more information about these issues, please contact Steve
Setliff at (804) 377-1261 or at [email protected]. For information
on how you can become involved with respect to Virginia’s truck-only
tolling law, please contact Steve Setliff or VTA President & CEO Dale
Bennett at 804-355-5371 or [email protected].