Interstate Commerce Clause and State Regulation of Greenhouse Gases

California's Heavy-Duty Greenhouse Gas Reduction Measure (GHG Measure) will affect the transportation of goods between California and other states, and will therefore impact interstate commerce. Although the federal government seems as though it will eventually regulate greenhouse gases, thereby possibly preempting state regulations like the GHG Measure, for now, the constitutionality of the GHG Measure will likely depend upon a dormant commerce clause analysis.

There is ample precedent under U.S. Supreme Court jurisprudence establishing that absent discrimination a state regulation affecting interstate commerce will be upheld unless the burden imposed on interstate commerce is clearly excessive in relation to the regulation’s putative local benefits. It is also well established that the power of the state to regulate the use of its highways is broad and pervasive. It is not surprising then that the Court’s recognition of the peculiarly local nature of safety issues, both in the context of highways and human health, resulted in such regulations being upheld despite their impact on interstate commerce.

Under dormant commerce clause analysis, the threshold inquiry is to determine whether a challenged law discriminates against interstate commerce. Here, the GHG Measure is not likely to be considered discriminatory against out of state transportation companies since the requirements actually increase the operating costs of companies domiciled within California.

Typically, if the challenged regulation is not discriminatory, it will be upheld unless there is an excessive burden on interstate commerce in relation to its “putative local benefits.” Therefore, any analysis involving the constitutionality of the TRU ATCM and GHG Measure will have to weigh their respective burdens and benefits. The Supreme Court applied a dormant commerce clause analysis to a state regulation in a factual context similar to that presented by California’s GHG Measure. In Bibb v. Navojo Freight Lines, Inc., the Court determined the constitutionality of an Illinois statute requiring the use of a specific rear fender mudguard on trucks and trailers operating on that state’s highways.

The Court’s analysis balanced the statute’s safety benefits against the burdens it imposed on interstate commerce. Initially, the Court noted that statutes pertaining to safety are afforded a strong presumption of validity because they often involve policy decisions that are best left to the discretion of state legislatures. In the Bibb case however, the Court found that the statute placed burdens on interstate commerce that were outweighed by its benefits. Specifically, the facts the Court found to be outcome determinative included the costs associated with the installation, maintenance, and replacement of mudguards, safety issues relating to decreasing the effectiveness of truck and trailer brakes, and mudguards’ susceptibility to fall off during use. In addition, the Court found that Illinois’ regulation conflicted with that of another state, thereby requiring interstate carriers to shift loads to differently designed vehicles when traveling between the states. Combined, the heavy burden on the interstate movement of trucks and trailers led the Court to strike down the regulation because it surpassed the permissible limits for safety regulations.

The GHG Measure imposes burdens on the movement of trucks and trailers in interstate commerce similar to those relied upon by the Court to strike down the Illinois statute in Bibb. Under the GHG Measure carriers will need to purchase side skirts, front and rear trailer fairings, low-rolling resistance tires, and incur the cost of installing, maintaining, and repairing these items on their fleets.
Similar to the statute in Bibb, the GHG Measure also presents a safety issue. Trailer side skirts can be easily damaged while crossing railroad tracks and driveways, and while loading and unloading at docks with tapered ramps. Truck drivers will need to remove the devices if damaged under such circumstances, resulting in down time, or bear the liability risk of the devices detaching from the trailer while driving. Moreover, the aerodynamic side skirts will likely operate in treacherous weather conditions, often bearing the additional weight of snow or ice that could compromise the devices’ safety and result in failure at high speeds.

The California regulations present a third burden identified in Bibb, requiring interstate carriers to shift loads to differently designed vehicles when traveling between the states. Entire out of state fleets will incur the costs of compliance with the California regulations because it is often not possible for carriers to know in advance which equipment will be used in a particular region on a particular day. Moreover, those carriers not wanting to incur these operating costs would need to expend time and resources in ensuring that cargo was transferred to designated trailers equipped to legally operate in California.

Based on the Bibb factors, a court analyzing the costs associated with complying with the California regulations might conclude that they impose too great a burden on interstate commerce to be upheld.

Notwithstanding the numerous burdens placed on interstate commerce by the California regulations, a thorough dormant commerce clause analysis will need to consider their respective benefits. California’s stated purpose in enacting the GHG Measure is to control major sources of GHG emissions to alleviate a serious threat to California's public health, natural resources and environment. To accomplish its goal, ARB grouped sources of those emissions into various sectors. Not surprisingly, the GHG Measure is grouped under the transportation sector.

The GHG Measure seeks to alleviate the harm GHGs pose to public health by improving the fuel efficiency of heavy duty trucks and trailers. The GHG Measure’s perceived benefits are illusory in several ways however. Test data used to justify the adoption of the GHG Measure demonstrates that desired fuel efficiencies materialize at sixty five miles per hour or more. Such speeds are unattainable both legally and practically. First, the California Motor Vehicle Code prohibits a truck from exceeding fifty-five miles per hour on a highway. In addition, CalTrans data demonstrates that the average truck speed on California’s main commercial corridor is less than sixty five miles per hour. At these speeds the fuel savings used to justify the regulation’s adoption cannot be attained. If the fuel savings cannot be attained, the corresponding health benefits from reduced GHG emissions cannot be realized. Under such a scenario, the burdens imposed by the GHG Measure will significantly outweigh the regulation’s unobtainable benefits, thereby reducing the likelihood that it will survive legal challenge.

Even if the GHG Measure’s intended benefits are realized, the problem California might encounter in sustaining the validity of its regulations under a dormant commerce clause challenge is that air contaminants contributing to public health concerns are inherently fluid, and therefore global in nature. Indeed, the heads of the U.S. Departments of Agriculture, Commerce, Transportation, and Energy, in response to the U.S. Supreme Court’s decision in Massachusetts v. Environmental Protection Agency, agreed that the regulation of GHGs must take a different approach than that used to historically regulate air pollution:

the Clean Air Act is premised on the idea that controlling
emissions in the United States will improve air quality in the
United States, and that a state or region can improve its air
quality by controlling emissions in that area. This is not true
in the case of greenhouse gases. Controlling greenhouse gas
emissions in the United States will reduce atmospheric
concentrations of those gases only if our emission reductions are
not simply replaced with emissions increases elsewhere in the
world.

In adopting the GHG Measure, California is clearly attempting to address a global issue, which as discussed above, will have a significant impact on interstate commerce. Under such a factual scenario, courts may need to develop a new standard for analyzing the validity of state GHG regulation. Such analyses will need to not only evaluate the burdens and benefits of such regulation on interstate commerce, but whether those benefits are realized at a local, state, national, or even international level. The result of such an analysis will hopefully determine how to equitably apportion the burden associated with such benefits.

Compliance Obstacles to California's Heavy Duty Vehicle Greenhouse Gas Regulation

Although well intentioned, the hastiness with which CARB drafted and implemented the Heavy-Duty Vehicle Greenhouse Gas Measure (GHG Measure) is likely to result in confusion within the regulatory community as to how to comply with its requirements.

One way trailer owners and operators can comply with the GHG Measure is to ensure that a trailer is EPA SmartWay certified. The problem is that the EPA SmartWay program is voluntary. Changes to voluntary programs can occur on a whim, without the requisite notice inherent to the rulemaking process. As such, changes to EPA SmartWay certification requirements could impact a business’s compliance status.

Another problem is that there are different certification standards for a voluntary program as opposed to a mandatory regulation. For example, the voluntary EPA SmartWay program only tests the fuel saving benefits of its approved aerodynamic devices. However, compliance options for a mandatory regulation often have to meet broader criteria so the regulated community will have confidence in the required technology’s safety, effectiveness, durability, maintenance costs, and its ability to withstand the rigors of use.

CARB repeatedly cites fuel savings as eventually allowing the regulated community to recoup its investment in the required aerodynamic devices. However, test data shows the benefit relied upon to justify the adoption of the GHG Measure, the fuel savings to owners and operators, materialize at speeds equal to or greater than 65 miles per hour.

The state’s fuel savings justification is problematic. The California Motor Vehicle Code prohibits a person from driving a truck tractor having three or more axles in excess of 55 miles per hour on a highway. As such, in order to realize the fuel savings promised by CARB, and to recoup the investment required by the GHG Measure, the regulated community would need to consistently violate applicable law.

Even if owners and operators did not obey speed laws, it is unlikely they could realize CARB’s claimed fuel efficiency gains. California Department of Transportation (CalTrans) data shows the average speed for tank and trailer combinations on the I-5 corridor, the busiest in California, is less than 60 miles per hour, with a median speed of 55 miles per hour. Therefore, even if the regulated community operates their vehicles outside the confines of the law, real world conditions may prohibit them from recouping the investment they are required to make under the GHG Measure.

California's Attempt at Climate Change Regulation

The California Global Warming Solutions Act of 2006 required the California Air Resources Board (CARB) to adopt rules and regulations to achieve maximum technologically feasible and cost-effective GHG emission reductions. After a lengthy rule making process, CARB adopted the Heavy-Duty Vehicle Greenhouse Gas Reduction Measure (GHG Measure) to achieve its lofty goal. Below is a brief summary of the regulation's requirements.

The GHG Measure applies to owners and operators, motor carriers, California-based brokers, and California-based shippers that use heavy duty tractors pulling 53 foot or longer box-type trailers. There are also disclosure requirements applicable to California residents selling heavy duty tractors or 53 foot or longer box-type trailers notifying the purchaser of the GHG Measure’s potential applicability.

There are two compliance deadlines applicable to tractor owners and operators. First, by January 1, 2010, all 2011 model year (MY) and newer tractors that pull regulated trailers must be either EPA SmartWay certified or be using EPA SmartWay certified low-rolling resistance tires. Second, by January 1, 2012, all pre-2011 MY tractors that pull regulated trailers must be using EPA SmartWay certified low-rolling resistance tires.

Trailer owners have more compliance options than their tractor-owning counterparts. Beginning on January 1, 2010, all 2011 and subsequent MY trailers must be either EPA SmartWay certified or equipped with low-rolling resistance tires and combinations of aerodynamic technologies that achieve a certain level of fuel savings depending on the type of trailer. Used trailers manufactured prior to 2010 must be either EPA SmartWay certified, or be equipped with certain combinations of low-rolling resistance tires and aerodynamic devices by either January 1, 2013, or in accordance with the deadlines set forth in one of several optional compliance schedules.