BOSTON (CN) — Rhode Island violated the Constitution when it imposed bridge tolls on tractor-trailers but not on cars and smaller trucks, a lawyer for the trucking industry told the First Circuit Tuesday, but the judges peppered the lawyers on both sides with tough questions and gave little indication of how they would rule.
More than a quarter of a million vehicles whiz through the tiny Ocean State every day on Interstate 95, a huge number of them passing through on their way someplace else. State legislators long puzzled over how to raise revenue from the traffic torrent without burdening residents who occasionally use the highway for local trips.
The solution was “RhodeWorks,” a 2015 program that imposed bridge tolls only on large tractor-trailers that were likely to be making long-distance hauls, with a daily cap so as not to overburden any in-state trucks making local deliveries. “The reason I prefer the tolling proposal is because the majority of the burden is on out-of-state truckers,” Governor Gina Raimondo — who is now the U.S. Secretary of Commerce — bragged at the time.
RhodeWorks added more than $100 million to the state’s coffers before a federal judge shut it down in September 2022, finding that it violated the Commerce Clause because it unfairly discriminated against out-of-state commerce.
But while 80% of the tolls are paid by out-of-staters, that doesn’t matter because it doesn’t affect competition, argued the state’s lawyer, Ian Gershengorn of Jenner & Block in Washington.
“The Legislature takes actions all the time that have a disparate impact on out-of-staters,” Gershengorn said. “Off-season ferry rates, for instance.”
But U.S. Circuit Judge Kermit Lipez, a Bill Clinton appointee, wasn’t so sure. “In terms of cost per mile of usage, there’s a huge difference,” he noted. “Local truckers who go back and forth are getting a much bigger break from that cap.”
U.S. Circuit Judge William Kayatta weighed in. “Can’t we presume competition?” the Barack Obama appointee asked. “If it were in-state lawyers and out-of-state big-firm lawyers, can’t I assume there’s some degree of competition?”
Gershengorn answered, “Yes, but you can’t presume competitive harm."
U.S. Circuit Judge Julie Rikelman, a Joe Biden appointee, asked if it would be okay if 99% of the funds came from out-of-staters. “At some point” there would be a constitutional problem, Gershengorn admitted. “So why isn’t 80% enough?” Rikelman asked.
But despite the tough questions, the judges were troubled by the lack of evidence of competition. “The underlying concern is Balkanization and an effect on the flow of goods,” Lipez commented, “yet there is no evidence in this record that any of those things are happening, that this has affected or will affect conduct of interstate truckers. They might not like it and it might increase their costs … but there’s no real-world impact.”
The trucking industry’s lawyer, Charles Rothfeld of Mayer Brown in Washington, argued that “competitive harm is almost impossible to establish in any one case” by showing that a particular truck lost business, but he said the court could assume “subtle effects over time.”
Kayatta bore into Rothfeld by asking how this case would be different from one where the legislature adopted an employment regulation but exempted small businesses with fewer than five employees, and Rothfeld stumbled for an answer.
The court also struggled to figure out how much deference it should pay to legislative findings that large trucks cause most of the bridge wear and tear, which would suggest that it was fair to apportion the tolls to them.
In its brief, the trucking industry argued a state employee with no engineering background searched Google and eventually came up with a single 40-year-old GAO report on road wear that became the basis for the legislation.
And “that was a study of overweight trucks,” Rothfeld noted, saying that in the real world bridge wear and tear doesn’t depend on the size of the truck but on the weight per axle, so small trucks can actually do more damage.
The state Department of Transportation conducted its own wear-and-tear studies but discontinued them when the results contradicted the party line, the truckers claim.
But the idea that big trucks cause more damage “seems to me so common-sensical,” Lipez said.
Rikelman repeatedly asked both lawyers what the standard was for reviewing legislative findings. Gershengorn said they should be accepted unless they’re “wholly irrational,” but Rothfeld complained that that “can’t be the test. You have to make a real factual inquiry.”
Lipez commented that if the law was “designed to placate local business interests,” that would “affect the credibility of the legislative determination.”
Gershengorn noted the Rhode Island trucking industry opposed the tolls, suggesting that it didn’t feel that it was getting any competitive benefit from them. He also argued that “in California the ratios would be completely different. And it can’t be that the Constitution allows a different result just because a state is small.”
Rhode Island is the only state in the U.S. to have a truck-only toll policy, although such policies exist on the German Autobahn and in Sweden, Denmark, Luxembourg, Belgium and Bulgaria.
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