OOIDA files legal petition for review of EPA's greenhouse gas rule waiver

By Charlie Morasch, Land Line contributing writer | 10/6/2014

The Owner-Operator Independent Drivers Association has filed a petition for review to challenge California’s greenhouse gas emission rule for diesel trucks.

The Cullen Law Firm, OOIDA’s litigation counsel, filed the petition with the U.S. Court of Appeals in Washington, D.C., on Friday, Oct. 3, announcing the Association’s challenge of the EPA’s waiver – a decision announced in early August. OOIDA is expected to file its arguments in the coming weeks and months.

A petition for review is a challenge of the legal process by which a body has reached a decision. Appellate courts review previously submitted evidence. The reviews rarely include a trial.

“The Owner-Operator Independent Drivers Association, Inc. hereby petitions this Court for review of the final action of the respondent United States Environmental Protection Agency published in the Federal Register,” OOIDA’s petition for review filing states.

The legal battle began in June 2013, when CARB requested a waiver to the Clean Air Act – clearing the path for CARB to enforce its greenhouse gas regulation, also known as the CARB SmartWay Rule. The rule is designed to reduce emissions and increase fuel mileage. It requires diesel trucks and trailers operating in California to be outfitted with aerodynamic equipment and low-rolling-resistance tires.

In October 2013, OOIDA President Jim Johnston wrote a 17-page response to the EPA request for public comment on its decision to grant CARB a waiver for the greenhouse gas rule.

Johnston said OOIDA believes the rule “unconstitutionally burdens out-of-state motor carriers who contribute less to the problem than exempted in-state motor carriers.”

“The multiple CARB regulatory requirements have added to the difficulties of those who transport goods to and from California,” Johnston wrote. “In some cases, these small-business truckers must comply with CARB’s Truck and Bus Regulation, Transportation Refrigeration Unit Regulation and/or Drayage Truck Regulation – in addition to the GHG Regulation. Compliance with the GHG Regulation imposes a significant financial burden on the large number of OOIDA members who are primarily engaged in interstate commerce, and who only drive into California on an intermittent and irregular basis.”

The regulation of fuel mileage, OOIDA said, resides with the National Highway Traffic Safety Administration.

In addition to the constitutionality of the regulation, OOIDA argued that SmartWay-certified low-rolling-resistance tires have a shorter life span and are less safe than other tires. OOIDA also noted the 150 to 350 pounds of weight added by trailer side skirts.

EPA answered that it can’t deny a waiver while considering implications like authority to set fuel mileage standards, and couldn’t rule against the waiver because of legal deference to the Commerce Clause of the U.S. Constitution or the Federal Aviation Administration Authorization Act.

OOIDA also pointed to CARB’s own change in cost estimates to comply with the rule. CARB initially estimated the rule would cost trailers $2,900 on average to comply, including an additional $125 in annual maintenance and reporting costs. CARB later changed that to $1,250 per trailer. OOIDA disagreed, estimating costs between $7,520 and $9,325 per trailer and said CARB’s projected cost recovery from diesel mileage savings was “greatly exaggerated.”

Comments filed by OOIDA and the California Construction Trucking Association opposed the rule. Comments also were filed by the American Trucking Association, the California Trucking Association, and CARB.

Despite the rule’s direct implication for trucks operating in California, the EPA waiver may affect trucks and truck owners in many other states.

The waiver ruling explicitly states other states may follow California’s lead and adopt the greenhouse gas regulation.

Because CARB pre-dates the EPA and the federal Clean Air Act, California is granted certain regulatory rights not given to other states, though it still must obtain waivers from EPA for certain actions.

Copyright © OOIDA