Federal Judge Finds Rhode Island’s Truck Tolls on Interstate Bridges Unconstitutional
A federal judge this week ruled that Rhode Island’s system of bridge tolls on heavy trucks is an unconstitutional restriction on interstate commerce, forcing immediate suspension of the toll collections and blowing a $40+ million dollar per year hole in the state’s highway budget.
Factual background. A 108-year-old federal law prohibits tolls from being levied on roads and bridges that were originally built or maintained using any federal-aid highway dollars, and this includes everything built with Interstate Construction funding. (Toll bridges and turnpikes that were built before 1956 with state or local money and then incorporated into the Interstate system were allowed to keep tolls.) But there are a few exceptions to this blanket ban that are now codified at 23 U.S.C. §129, including section 129(a)(1)(E), which allows the “reconstruction or replacement of a toll-free bridge or tunnel and conversion of the bridge or tunnel to a toll facility…”
Nine years ago, Rhode Island first authorized a new way to raise state highway revenue, called “RhodeWorks,” which included levying tolls on heavy trucks on the major high-traffic bridges in the Ocean State and using those proceeds (around $40 million per year) to pay for the rehabilitation of those bridges and of the many other bridges in the state that were in poor condition.
The tolls, collected electronically, were not evenly distributed:
- As mentioned above, tolls are only collected on a dozen bridges, and nine of them are on Interstate 95 or its belts or spurs;
- Tolls are only levied on the heaviest trucks – FHWA “Class 8” and above, meaning combination tractor-trailers (the legislature rejected tolls on smaller trucks after in-state businesses objected);
- There are caps on the amount of toll that can be levied on a single truck per day, so that a truck is only taxed once per day per bridge in each direction, a flat $20 for crossing the entire state, and and overall $40 per day cap. The benefits of these caps would tend to flow more to short-haul (local) trucks than to long-haul trucks.
The American Trucking Associations and several of its member companies eventually sued Rhode Island, and their lawsuit was victorious in the U.S. District Court for the District of Rhode Island on September 21, when the court ruled that “the RhodeWorks tolling program violates the Commerce Clause of the United States Constitution. For this reason, the State is permanently enjoined from further tolling under the law.”
The opinion (American Trucking Associations v. Alviti) by Judge William E. Smith can be read here.
Legal background. The Constitution gives the federal government exclusive power “to regulate commerce with foreign nations, and among the several states.” This is known as the Commerce Clause, and Congress has passed a great many laws to fulfill this clause, which could be called “active Commerce Clause power” since Congress is taking action. But where there is a positive, there must also be a negative.
This case, by contrast, involves what is called “dormant Commerce Clause power” – if Congress has the power to regulate interstate commerce, then states do not have any such power. The Law Library of Congress explains it: “This aspect of the Commerce Clause, sometimes called the ‘dormant’ commerce clause, means that the courts may measure state legislation against Commerce Clause values even in the absence of congressional regulation, i.e., when Congress’s exercise of its power is dormant.”
The Supreme Court summed up the rules in the Wayfair case four years ago: “Modern precedents rest upon two primary principles that mark the boundaries of a State’s authority to regulate interstate commerce. First, state regulations may not discriminate against interstate commerce; and second, States may not impose undue burdens on interstate commerce.” The plaintiffs presented a case alleging that RhodeWorks tolls discriminated against interstate commerce.
After deciding a bunch of technical issues (did ATA and the other plaintiffs have standing to get into court in the first place, what burden of proof was needed, etc.), Judge Smith examined the RhodeWorks toll plan under the discrimination doctrine.
Did RhodeWorks discriminate against interstate commerce? In trying to answer this, the judge first had to go all the way back to 1972, when the Supreme Court decided the first airport “head tax” case (now called the Passenger Facility Charge) that had been levied by the Evansville, Indiana airport.
The test called for by the Evansville case and a similar 1994 airport case tries to distinguish a real, constitutionally permissible user fee from a tax. In order to be a real user fee on interstate commerce, the toll must
- be based on some fair approximation of the use of the facilities;
- not be excessive in relation to the benefits conferred; and
- not discriminate against interstate commerce.
Because some kind of tolling is specifically allowable under federal law (section 129), the judge said that the 2nd criteria, “excessiveness,” did not apply here.
The judge ruled that RhodeWorks tolls were not a fair approximation of the cost of bridge use because the RhodeWorks system uses the toll revenues from the tolled bridges explicitly to pay for upgrades to other bridges that are not being tolled. He ruled that in order to qualify as a fair approximation, the proceeds from the tolls would have to be used for “the bridge or bridge group for which a specific toll is charged. This conclusion is well supported in the record and is the language of ISTEA itself.”
He then dealt with the fact that the tolls only apply to the heaviest trucks, not to lighter trucks or passenger cars. Rhode Island argued that “the only (or the primary) users [of the bridge] are Class 8+ trucks because these do most of the damage to bridges, in effect ‘consuming’ the useful life of the bridge over time.” The judge called this “an unusual understanding of what it means to use a bridge” and noted that Class 8+ trucks were only 3 percent of the total traffic on the tolled bridges.
The judge wrote “Without looking much deeper, a system that places the entire toll burden on an extreme minority of users is inherently unfair and fails the test” – but then he looked deeper anyway, and found that even if Class 8+ trucks do a disproportionate amount of physical damage to a bridge compared with other users, “assuming Defendants are correct that large commercial trucks consume 70-80% of a bridge’s life, the State’s decision to place the entire toll burden on those users still does not pass the fair approximation test.”
Having found that RhodeWorks failed the “fair approximation of use” test, the judge turned to the discrimination test. He wrote that evidence introduced at trial showed that lower-classed (non-tolled) trucks were more likely to have Rhode Island license plates than Class 8+ (toll-paying) trucks, to the point that “approximately 80% of the tolled vehicles are from out of state. And the less than 20% of tolled Class 8+ trucks from Rhode Island disproportionally receive the benefit of the toll caps.” Because of this, he found that RhodeWorks toll scheme discriminated against interstate commerce in both intent and effect.
Having found discrimination, the judge was forced to use the “strict scrutiny” standard against which to judge the law:
This analysis is straightforward. Rhode Island has a legitimate – even compelling – interest in the maintenance of its ailing bridges. But there is no reason that interest cannot be served by a tolling system that does not offend the Commerce Clause. Indeed, many states have implemented tolling systems that fairly apportion their costs across various users and do not discriminate against interstate commerce. Applying strict scrutiny, RhodeWorks’ tolling program fails the test.
The judge held the tolling law invalid and issued an order for the state to stop collecting tolls within 48 hours. Once again, the whole opinion can be read here.
(Ed. Note: Persons interested in the New York City congestion pricing plan might want to read the judge’s opinion closely, because the discrimination principles at play here are the same whether it is Rhode Island giving favorable treatment to home-state trucks or New York giving any kind of favorable treatment to outer-borough New Yorkers over New Jersey residents in a congestion pricing scheme.)