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 truck-only 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-of-state 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-of-state 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 ssetliff@setlifflaw.com. 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 dbennett@vatrucking.org.