| For Immediate Release: California Dump Truck Owners Association Sues State Air Resources Board to Overturn Overreaching Truck & Bus Rule |
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| In The News | |||
| Thursday, 24 February 2011 14:21 | |||
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SACRAMENTO, Calif. (February 15, 2011) – The California Dump Truck Owners Association(“CDTOA”) is suing the California Air Resources Board (“CARB”) challenging the legality of CARB’s Truckand Bus Regulation. The lawsuit, California Dump Truck Owners Association v. Air Resources Board, hasbeen filed in the U.S. District Court, Eastern District of California, Sacramento Division, on February 11,2011. Specifically, CDTOA asserts that CARB’s regulation is unconstitutional as it is preempted by theFederal Aviation Administration Authorization Act (“FAAAA”) and seeks an injunction prohibiting CARBfrom enforcing their rule. CDTOA has attempted to work with CARB for more than four years to find reasonable solutions thataccomplish the goal of cleaning California’s air while avoiding the needless devastation of the state’s truckingindustry and specifically the dump truck industry. The dump truck industry is struggling to survive due to adepressed regional economy, a construction industry suffering through 50% unemployment, and rampantconstruction price deflation as contractors fight for what little work there is. The compounding damage causedby the construction industry depression, escalating costs and now the devastating impacts of the CARB Truckand Bus Regulations will cause incalculable damage within the construction transportation industry. CARBhas repeatedly refused to address these many economic challenges. Due to this lack of cooperation andempathy, CDTOA was left with no remaining option other than litigation. “Our members are experiencing the worst economic conditions in living memory and CARB continues toplace impossible regulatory burdens on them at a time they can least afford it,” says Lee Brown, ExecutiveDirector of CDTOA. Adding that, “Our members support clean air, but the air we breathe can’t be moreimportant than the people that are breathing it.” CARB’s Truck and Bus Regulation essentially requires all heavy-duty diesel vehicles currently on California’sroads to be replaced with new CARB-compliant vehicles. Unfortunately, CDTOA members have based theirbusinesses on the ability to use their trucks for at least 800,000 miles and they only average 50,000 miles ayear. Because the rule requires replacement of otherwise perfectly useful, and in most cases clean trucks muchearlier than would otherwise be required, the majority of CDTOA members will be unable to comply andforced to close their businesses – leaving hard-working employees (drivers, mechanics, support personal, andmanagers) and their families jobless during a time of record unemployment levels in California. For most of CDTOA’s members, their dump trucks are the sole asset for their business – essentially serving astheir office, tool of their trade, sole source of capital and investment, and only basis of income and livelihood.A new CARB-compliant truck costs more than $150,000 to purchase. However, dump truck rates are down40% and the number of jobs has been cut in half from only a few years ago. And to make compliance a furtherimpossibility for CDTOA’s members, the rule drastically diminishes the resale value of currently-ownedtrucks as they cannot be operated on California’s roads, thus all companies have lost their primary source ofcapital for purchasing new CARB-compliant trucks (not to mention increasing the likelihood of defaulting onexisting truck financing.) Truck retrofit devices are also purported to be a short-term solution under the rule,yet they still cost tens of thousands of dollars and are infamous for being mechanically unreliable. So not onlywill CDTOA members be prohibited from purchasing replacement trucks due to a lack of financial resources,they will be prohibited from earning any income at all because the rule prohibits them from operating theircurrently-owned trucks. CDTOA President, and small business owner Rob McClernon noted that, “Food on the table, a roof over yourhead, health care for your family are just as important if not more than nominally cleaner air. From what I cantell, joblessness is far more unhealthy than the air we breathe anywhere in this state today.” In 1994, the U.S. Congress explicitly acted to retain sole oversight over motor carriers in the United States inorder to prevent state agencies from over regulating these motor carriers. The FAAAA specifically prohibitsany state or any political subdivision from enacting or enforcing any regulation related to the price, route, orservice of a motor carrier. Because CARB’s Truck and Bus Regulation is overreaching and directly impacts allmotor carrier members prices, routes, or services, CDTOA believes it to be preempted by federal law pursuantto the supremacy clause of Article VI of the United States Constitution. As such, CDTOA is requesting thecourt prevent or enjoin the implementation of the CARB Truck and Bus Regulation. Furthermore it must be noted that CARB’s Truck and Bus Regulation has been wrought with controversy andcriticism since originally proposed. In 2008, the lead author of CARB’s scientific report for the rule admittedlymisrepresented his qualifications and education, which understandably cast grave doubt on his entire workproduct. Subsequently, CARB Chair Mary Nichols and other Board Members admitted to full knowledge ofthis information prior to voting to adopt the regulation, yet failed to disclose these facts to the full Board andpublic. To date, no true California-specific replacement report has been released that connected diesel relatedparticulate matter (PM) to premature deaths in the state despite promises of such by CARB. The scientificunderpinnings of the rule continued to be discredited after a February 2010 CARB-sponsored symposiumillustrated that the substantive contents of the report could not be recreated without further deceit, plus therewas substantial epidemiologic evidence from six different sources and four separate studies that indicatedthere’s no current relationship between PM2.5 (specifically diesel PM) and premature deaths in California. Inlate 2010, CARB acknowledged that they had grossly overestimated diesel emissions for their companion“off-road” rule by 340%. Subsequently, another independent study of the Truck and Bus Regulation revealedthat additional scientific miscalculations were made by CARB as the original CARB baseline inventory valuesfor 2009 were about 1.40 times the current CARB baseline inventory values, or, in other words, emissionswere overestimated by about 40%. The case is being litigated by the Law Offices of Brooks Ellison, CDTOA’s General Counsel. CaliforniaDump Truck Owners Association v. Air Resources Board, is filed with the U.S. District Court, Eastern Districtof California, Sacramento Division, Case No. 11-cv-00384. The California Dump Truck Owners Association (CDTOA) is a 501(c)(6) trade association incorporated in1941. A little over three years ago, CDTOA represented nearly 2,000 construction industry related truckingcompany members ranging in size from 1 truck to over 350 trucks. Sadly, today that number has diminished tofewer than 1,000 due to the economy and the ramifications of the Truck and Bus Regulation. Approximately60%, or less than 600, of its members are sole proprietors; small one truck independent contractor owneroperatorbusinesses. Additionally, the majority of its members operate low mileage vehicles, typically between20,000 – 65,000 per year. These vehicles are all well above 26,001 GVWR, thus do not receive any of thebenefits of any exemptions or special provisions found in CARB’s Truck and Bus Regulation. Contact:
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