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Trucking tolls legal?  When in doubt, sue.

I am told that funding roads and highways by taxing constituents is unpopular for some reason (Missourri,ColoradoSouth Carolina, for instance).  In an effort to still pay for roads without doing that “tax” thing, some states, including Virginia, have opted to try to obtain funds by truck specific tolls.  That effort has stalled in Virginia, but with the state of roads, bridges, highways and infrastructure and the aforementioned reluctance to actually tax people, the issue is going to come back.

It should be said that truck-specific tolls on interstate highways may not be legal, and, for instance are not necessarily consistent with the commerce clause of the US Constitution. These tolls are likely to lead to increases in prices and changes in traffic patterns due to attempts to avoid the tolls.  Assuming they aren’t illegal, supporters claim that they are usage fees, not taxes, though this conclusion is seriously in doubt.  They also claim these tolls are necessary, which is arguable, particularly if they are (illegal) unfairly targeted taxes in disguise, for the purpose of avoiding taxes called “taxes” on everyone.  Supporters of tolls also argue that trucks cause more damage to roads, a dubious conclusion, but one manageable by enforcing weight restrictions in any event.  Regardless, truck tolling is here, and it’s going to increase.  Given that a number of states are toying with such tolls, and many have already implemented them, we are starting to see these impacts.  Moreover, as usually happens when people are in doubt, we have lawsuits.

A suit in Pennsylvania challenged a toll that was not “truck only” but for which revenues were allocated to expenses other than the PA Turnpike.  Plaintiffs claimed this placed an undue burden on interstate commerce – the argument above.  The lower court dismissed the case, but the plaintiffs have appealed.  Supporters of the toll call the lawsuit “catastrophic” and note that PA’s transportation and infrastructure are unsustainably indebted even if the tolls remain.

Opponents of truck only tolls in Rhode Island responded to tolls there by suing in Federal Court (relying largely on the Constitutional argument above).  The Court dismissed that lawsuit.  Notably, the ruling of that lower court held that the tolls are taxes.  Ironically, that ruling might complicate the legal argument because that makes these an arguably discriminatory use tax, not equally applied.  However, the plaintiffs are appealing to a higher court, and the matter isn’t over.

In late 2018 Indiana raised the tolls on the Indiana Toll Road only for trucks – specifically not for passenger cars.  As you can tell from the pattern here, Indiana got sued over that, and the lawsuit alleged, in part, that it is unconstitutional to use the money to pay for non-infrastructure projects and burden interstate commerce.  That suit doesn’t appear to have gone far yet, but let’s assume an appeal is coming, regardless of the outcome.  The alternative proposed if Indiana loses:  a fuel tax.

Note that none of these lawsuits have resolved the issue.  All are in expensive litigation and appeals.  Ironically, this means money is being spent on fighting to implement tolls, rather than on the roads or other infrastructure.  Assuming we want roads, wouldn’t it be more efficient to just raise everyone’s taxes and pay for them?

If you have questions about this article, or about transportation issues in general, please contact Dov Szego at dszego@setlifflaw.com (804-377-1263) or Steve Setliff at ssetliff@setlifflaw.com (804-377-1261).