CARB's Truck and Bus regulation: OOIDA fights on

By Sandi Soendker, EDITOR-IN-CHIEF

Do you ever think the finger of fate wavered years ago and made you a trucker instead of an attorney? Do you sometimes see yourself saying "I object!" to a judge instead of to the dispatcher?

For those of you who have always thought you'd be comfortable slinging expressions like "summary judgment" instead of "drag and drop," and for those of you who want the update on OOIDA's CARB challenge complete with all of the twists and turns, this is for you. The rest of you will be interested as well.

Where it started

On Dec. 6, 2013, OOIDA filed a lawsuit in the U.S. District Court, Eastern District of California, against the California Air Resources Board in connection with the agency's controversial Truck and Bus Regulation. OOIDA's position is that CARB's requiring trucks from other states to be upgraded in order to operate in California violates the Commerce Clause and they cannot do it.

Ten months after the lawsuit was filed, the case was dismissed from the California court. It was not dismissed on merit but because the trial judge thought the case should have been filed in appellate court. Also, because a part of OOIDA's legal challenge was to vacate the EPA's granted approval to California to impose its far-reaching rule, EPA should have been named as a defendant. The judge allowed the lawsuit to be amended, however.

After it was amended, the case got a boost in October 2014 when an OOIDA member from South Dakota entered the picture. Jack Cody of Renner, S.D., was issued a citation that required him to pay up to $1,500 per month per noncompliant vehicle.

Wait - that changes everything

The original OOIDA complaint asserted a facial challenge to the regulation. A facial challenge questions whether the statute is on its face invalid, and a win could have the effect of striking it down entirely. An as-applied challenge alleges that a particular application of a statute is unconstitutional. With named plaintiff Jack Cody's "as-applied" aspect added to the case, a judge for the U.S. District Court for the Eastern District of California decided that deserved further review.

In July 2015, the U.S. District Court in California dismissed a portion of the case and transferred some of it to the U.S. Court of Appeals for the 9th Circuit.

The court did state it is "highly sympathetic to the position in which many of OOIDA's members find themselves" but didn't want to actually hear the reasons OOIDA filed the lawsuit.

At the same time, OOIDA litigation counsel, The Cullen Law Firm, went back to the drawing board, prepared a petition for review, and took it to the U.S. Court of Appeals for the 9th Circuit.

At the end of 2015, two OOIDA cases were before the 9th Circuit and another had been filed there on behalf of OOIDA Member Jack Cody's company, CO AL Transport.

The facts? Yet to be heard

On Jan. 27, 2016, a ruling was handed down by the

9th Circuit Court. Two of the three OOIDA cases in that court were dismissed. The court didn't give a reason, but cited the California Dump Truck Operators Association case, which was dismissed because it was filed more than 60 days after the EPA Clean Air Act's deadline on challenging the regulation.

"This history of dismissals are all due to technicalities and so far no court has heard the merits of the case, which challenge the constitutionality of CARB's Truck and Bus regulation," said OOIDA President Jim Johnston. "We are still being denied a fair hearing on the facts of the case. In fact, to my knowledge, the facts of the case have yet to be heard in any of the cases filed."

The original amended OOIDA case is still intact. At press time, CARB had not made a motion to dismiss. In that case, OOIDA alleges that the regulation violates the Commerce Clause of the Constitution by requiring owner-operators residing outside of California to incur monstrous costs to retrofit their equipment simply to engage in interstate business in California. LL

What's next?

It appears that CARB's litigation strategy has been to escape review of its rules by arguing those cases do not belong in any of the courts OOIDA has filed in. However, their ability to make those arguments and avoid a hearing on the constitutionality of its rules is narrowing, and all of OOIDA's opportunities to pursue that review are alive.

"The decision of the D.C. Circuit in November puts the jurisdiction in the California courts," Johnston said.

And that is where OOIDA currently has a case pending in federal court (OOIDA's case), and also a case pending in California state court (another Jack Cody case).

"It's frustrating, costly and time-consuming to deal with their delay tactics," Johnston said. "A trucker, small-business operation or even a large carrier - few could maintain this kind of legal campaign. And that is what they are banking on, that we will give up."

Johnston says OOIDA will fight on in its multi-front battle to defeat the regulation.

"Sooner or later, the court will hear the compelling merits of this case." LL