Oral arguments heard in state’s appeal of truck-only tolls verdict

September 13, 2023

Ryan Witkowski


Rhode Island’s attempt to overturn a federal court’s decision that ended the state’s truck-only tolls program is now in the hands of the U.S. Court of Appeals.

On Tuesday, Sept. 12, attorneys for both parties presented oral arguments before a panel of judges in Boston. The panel of U.S. First Circuit Judges for the hearing included:

The original lawsuit filed by the American Trucking Associations successfully argued that Rhode Island’s tolling plan violated the Commerce Clause of the U.S. Constitution, which forbids states from imposing charges with the intent to discriminate in favor of domestic entities and against out-of-state or interstate entities.

The intention of the truck-only tolls program was to fund the state’s RhodeWorks initiative, which sought to address Rhode Island’s dilapidated bridges. Since 2018, the 12 truck-tolling locations across the state generated about $100 million before being ordered to shut down.

During the hearing, Ian Gershengorn, attorney for the state, contended the state’s truck-only tolls on Class-8 and higher trucks were “facially neutral” because those vehicles caused the bulk of the damage to Rhode Island’s aging bridges.

“The district court misapplied the Commerce Clause, and it took for itself decisions that belonged to the state’s elected representatives,” Gershengorn argued.

In response, Lipez pointed to “mathematical analysis” conducted by the district court, which showed a “significant difference between the cost-per-mile of these tolls on the interstate truckers and the local truckers.”

The state has been persistent in its argument that the truck-only toll does not disproportionally impact out-of-state drivers because the tolls are “usage-based” rather than being a “tax at the border.”

Rikelman pointed to evidence showing 80% of the tolls were collected from out-of-state truckers. Despite this, Gershengorn maintained that the state’s tolling plan was not created with discriminatory intent and that plaintiffs had not provided sufficient evidence to prove a discriminatory effect.

“What the state has done, if you take a step back, is it’s chosen a category for tolling for this program, a category that’s 80% out-of-staters,” Rikelman said. “So I guess my question for you is, if Rhode Island had chosen a category that was 99% out-of-staters to toll for its RhodeWorks program, are you saying that still wouldn’t be enough to show discriminatory effect (and) to get strict scrutiny?”

The state has argued that, because there is a cap on the amount tolled per day, the tolls apply equally to both in-state and out-of-state users. Lipez questioned the validity of this, likening the cap to a “flat tax” paid by any trucker in the state.

“Once you hit that cap, the cost per mile of usage, there’ll be a huge difference between the local truckers who go back-and-forth and back-and-forth over these bridges,” Lipez said. “Once they’ve hit the cap, they don’t have to pay anymore and so they’re getting a much bigger break from that cap than the trucker who just goes through the state, pays it once and then goes on.”

Attorney Charles Rothfeld is representing the appellees in the case. He said the state’s arguments are setting a dangerous precedent when it comes to discriminating against out-of-state commerce.

“I think it’s helpful to take a step back and think about the consequences of the arguments that are being made by Rhode Island, which takes the position that an intent to discriminate is irrelevant. Mr. Gershengorn took the position that kind of aggregate discriminatory effect is irrelevant,” Rothfeld said. “If that’s true, then a state can … instruct a state agency to come up with a facially neutral regime that inevitably will have the effect of imposing disproportionate burdens on out-of-staters, benefiting in-state competitors.”

The plaintiffs in the case have argued these truck-only tolls could lead carriers to avoid the state altogether. In response, Lipez stated there is no evidence that suggests there has been an impact on trucks and goods coming into state.

“They may not like it. It may, in an aggregate sense, increase their costs. But there’s no suggestion that it is going to diminish the flow of goods and trucks from state to state,” Lipez said. “The analysis seems highly theoretical, mathematical, almost. But there’s no evidence that it’s going to have a real-world effect.”

Rothfeld argued that proving this impact is not only unnecessary but also extremely difficult given the subtlety of the state’s discrimination. Despite this, he noted that it is “the subtle effects that over time have an impact on entities that are engaged in interstate commerce.”

Additionally, Lipez questioned whether the determination of what trucks to toll was unduly influenced by local business interests.

“There is a lot of evidence in this record that the distinction between Class-8 and Class-7 had very little to do with the difference in physical impact on the structure. There’s a lot of evidence that it was designed to placate local business interests who felt they would be severely hurt if this toll applied to the class of trucks that they use,” Lipez said.

He also posed a question to Gershengorn: “So in making a judgment about how reasonable the judgment was between Class-7 and Class-8, doesn’t that evidence sort of affect the credibility of the legislative determination? Isn’t that important for us to consider?”

Gershengorn replied that trying to maximize in-state business to help local residents is something state legislatures do every day, stating that “taking account of local concerns is the core of what legislatures do.” Furthermore, he added that no evidence supports the claim that the state sought to benefit in-state truckers at the expense of out-of-state carriers.

There has been overwhelming support from the trucking industry – along with the business community – for the court to affirm the previous decision.

In May, the U.S. Chamber of Commerce filed a brief in opposition to the state’s case. Shortly after, in June, a collaborative amicus brief was filed by the American Highway Users Alliance,  Intermodal Association of North America, National Association of Truck Stop Operators, Truckload Carriers Association, Truck Renting and Leasing Association and trucking associations from every state except Delaware and Kansas.

There also has been support for the state’s case, with the International Bridge, Tunnel and Turnpike Association filing a brief in March asking the court to overturn the previous decision, arguing its application of the Commerce Clause was unjust.

The parties will now wait for the court to make its decision. There is no timetable for the ruling, but it will likely be months before a decision is made.

Both Gershengorn and Rothfeld did not respond to Land Line’s request for comment. LL