Transportation


To address stakeholder requests, the California Air Resources Board (CARB) staff announced on Tuesday, August 3, 2010, that it is postponing consideration of regulatory amendments until November, 2010.  It also announced that itwill be scheduling additional workshops in August/September to discuss the emissions inventory and proposed amendments.

When CARB Staff held workshops in June and July regarding proposed amendments to the Truck and Bus, Off-Road, Tractor-Trailer GHG, and Drayage Truck regulations many stakeholders requested additional time to review and comment on the regulations, including the following:

  • Details of planned emissions inventory updates for trucks and off-road vehicles,
  • Specific draft regulatory language,
  • ARB’s revised report on fine particulate matter (PM2.5) mortality estimates, a draft of which will be released later this summer, and
  • Proposed changes to the Drayage Truck Regulation.

To address those requests, CARB decided to move the Board Hearing to consider the proposed amendments, currently slated for September 2010, to November.  In the interim, CARB staff will hold workshops in August and September to discuss the revised emission inventory and the proposed amendments.  CARB says it believe that this delay in the hearing date will provide sufficient time to hold the workshops and to make any necessary adjustments after the workshops.

Background on the Regulations to Be Considered

The Truck and Bus, Off-Road, and Drayage Truck Regulations are intended to reduce toxic and smog-forming emissions from trucks, buses, and off-road vehicles. Reducing such emissions is necessary to meet federally imposed clean air standards and to reduce the adverse health effects from air pollution throughout the state. The Tractor-Trailer GHG regulation is intended to reduce greenhouse gas emissions from tractor-trailers traveling California’s roadways.

While staff is proposing to amend several elements of the truck and bus and off-road regulations, many provisions are in effect and not being considered for amendment.  These include:

  • Off-road reporting and labeling requirements;
  • Off-road idling limits and sales disclosure requirements; and
  • Requirements to report vehicles utilizing the agricultural vehicle provisions and some two engine street sweepers under the truck and bus regulation.

However, due to the pending amendments to the truck and bus and off-road regulations, several requirements have been postponed:

  • On February 11, 2010, CARB issued a delay of the off-road regulation’s retrofit and turnover requirements pending further notice.
  • The truck and bus regulation reporting originally required by March 31, 2010, has been delayed until early 2011.
  • The truck and bus retrofit and turnover requirements (scheduled to begin January 1, 2011) will also be extended.

The California Air Resources Board (ARB) has extended the verification for the Proventia Group’s FTF and Bobtail FTF to cover model year (MY) 2003 transport refrigeration unit (TRU) engines.

This action was taken in anticipation of ARB’s planned amendment to the TRU Airborne Toxic Control Measure (ATCM), which will change the in-use performance standard for MY 2003 engines from the Ultra-Low Emission TRU in-use performance standard to the less stringent Low-Emission TRU (LETRU) in-use standard.  MY 2003 TRU engines are required to comply with this in-use standard by December 31, 2010.

The Proventia FTF and Bobtail FTF flow-through filters reduce diesel particulate matter emissions at least 50 percent, plus they comply with the 20 percent NO2 limit, qualifying it as a Level 2 Plus Verified Diesel Emissions Control Strategy (VDECS).

This verification allows the FTF and Bobtail FTF Level 2 VDECS to be used as a retrofit compliance option to meet the TRU ATCM’s LETRU in-use standard.  It can be used on Thermo King TRUs with MY 1987 through 2003 truck TRU engines and MY 1985 through 2003 trailer TRU engines, provided certain terms and conditions are met.  TRU owners should read about the specific terms and conditions for which the Proventia FTF and Bobtail FTF have been approved in Executive Order DE-08-001-04, which will be posted the week of July 19, 2010, on the ARB Verification Procedure – Level 2 website at http://www.arb.ca.gov/diesel/verdev/level2/level2.htm.  The list of engines that can be matched with this filter will also be posted there as an attachment.

Additional information is available at: http://www.proventiafilters.com/

The Incentive Programs Advisory Group Meeting, scheduled for December 3, 2009, is being postponed until early 2010.  We will send out a meeting notice once we select a revised meeting date. The meeting is being rescheduled to better align with upcoming revisions to both the Carl Moyer Program Guidelines and the Goods Movement Emission Reduction Program Guidelines.

These proposed guideline updates will be considered by CARB in March 2010. CARB believes the next Advisory Group meeting will be most productive if it is held after CARB staff has held workshops on its proposals but before Board consideration.

The Incentive Programs Advisory Group, led by ARB Board Member Sandra Berg, provides a forum for discussing policy level issues relating to the development and ongoing implementation of California’s air quality incentive programs. These include the Carl Moyer Program, the Lower-Emission School Bus Program, the Goods Movement Emission Reduction Program, the AB 118 programs, and other locally run air district programs, among others.  The group meets twice a year to provide a venue for policy level coordination among agencies and programs.

For more information about the Advisory Group, please visit ARB’s web site at http://www.arb.ca.gov/msprog/moyer/advisory_group.htm .

This post was authored by Rajiv Tata, who currently serves as General Counsel for Utility Trailer Manufacturing Company:

California’s Heavy-Duty Greenhouse Gas Reduction Measure (GHG Measure) will affect the transportation of goods between California and other states, and will therefore impact interstate commerce. Although the federal government seems as though it will eventually regulate greenhouse gases, thereby possibly preempting state regulations like the GHG Measure, for now, the constitutionality of the GHG Measure will likely depend upon a dormant commerce clause analysis.

There is ample precedent under U.S. Supreme Court jurisprudence establishing that absent discrimination a state regulation affecting interstate commerce will be upheld unless the burden imposed on interstate commerce is clearly excessive in relation to the regulation’s putative local benefits. It is also well established that the power of the state to regulate the use of its highways is broad and pervasive. It is not surprising then that the Court’s recognition of the peculiarly local nature of safety issues, both in the context of highways and human health, resulted in such regulations being upheld despite their impact on interstate commerce.

Under dormant commerce clause analysis, the threshold inquiry is to determine whether a challenged law discriminates against interstate commerce. Here, the GHG Measure is not likely to be considered discriminatory against out of state transportation companies since the requirements actually increase the operating costs of companies domiciled within California.

Typically, if the challenged regulation is not discriminatory, it will be upheld unless there is an excessive burden on interstate commerce in relation to its “putative local benefits.” Therefore, any analysis involving the constitutionality of the TRU ATCM and GHG Measure will have to weigh their respective burdens and benefits. The Supreme Court applied a dormant commerce clause analysis to a state regulation in a factual context similar to that presented by California’s GHG Measure. In Bibb v. Navojo Freight Lines, Inc., the Court determined the constitutionality of an Illinois statute requiring the use of a specific rear fender mudguard on trucks and trailers operating on that state’s highways.

The Court’s analysis balanced the statute’s safety benefits against the burdens it imposed on interstate commerce. Initially, the Court noted that statutes pertaining to safety are afforded a strong presumption of validity because they often involve policy decisions that are best left to the discretion of state legislatures. In the Bibb case however, the Court found that the statute placed burdens on interstate commerce that were outweighed by its benefits. Specifically, the facts the Court found to be outcome determinative included the costs associated with the installation, maintenance, and replacement of mudguards, safety issues relating to decreasing the effectiveness of truck and trailer brakes, and mudguards’ susceptibility to fall off during use. In addition, the Court found that Illinois’ regulation conflicted with that of another state, thereby requiring interstate carriers to shift loads to differently designed vehicles when traveling between the states. Combined, the heavy burden on the interstate movement of trucks and trailers led the Court to strike down the regulation because it surpassed the permissible limits for safety regulations.

The GHG Measure imposes burdens on the movement of trucks and trailers in interstate commerce similar to those relied upon by the Court to strike down the Illinois statute in Bibb. Under the GHG Measure carriers will need to purchase side skirts, front and rear trailer fairings, low-rolling resistance tires, and incur the cost of installing, maintaining, and repairing these items on their fleets.
Similar to the statute in Bibb, the GHG Measure also presents a safety issue. Trailer side skirts can be easily damaged while crossing railroad tracks and driveways, and while loading and unloading at docks with tapered ramps. Truck drivers will need to remove the devices if damaged under such circumstances, resulting in down time, or bear the liability risk of the devices detaching from the trailer while driving. Moreover, the aerodynamic side skirts will likely operate in treacherous weather conditions, often bearing the additional weight of snow or ice that could compromise the devices’ safety and result in failure at high speeds.

The California regulations present a third burden identified in Bibb, requiring interstate carriers to shift loads to differently designed vehicles when traveling between the states. Entire out of state fleets will incur the costs of compliance with the California regulations because it is often not possible for carriers to know in advance which equipment will be used in a particular region on a particular day. Moreover, those carriers not wanting to incur these operating costs would need to expend time and resources in ensuring that cargo was transferred to designated trailers equipped to legally operate in California.

Based on the Bibb factors, a court analyzing the costs associated with complying with the California regulations might conclude that they impose too great a burden on interstate commerce to be upheld.

Notwithstanding the numerous burdens placed on interstate commerce by the California regulations, a thorough dormant commerce clause analysis will need to consider their respective benefits. California’s stated purpose in enacting the GHG Measure is to control major sources of GHG emissions to alleviate a serious threat to California’s public health, natural resources and environment. To accomplish its goal, ARB grouped sources of those emissions into various sectors. Not surprisingly, the GHG Measure is grouped under the transportation sector.

The GHG Measure seeks to alleviate the harm GHGs pose to public health by improving the fuel efficiency of heavy duty trucks and trailers. The GHG Measure’s perceived benefits are illusory in several ways however. Test data used to justify the adoption of the GHG Measure demonstrates that desired fuel efficiencies materialize at sixty five miles per hour or more. Such speeds are unattainable both legally and practically. First, the California Motor Vehicle Code prohibits a truck from exceeding fifty-five miles per hour on a highway. In addition, CalTrans data demonstrates that the average truck speed on California’s main commercial corridor is less than sixty five miles per hour. At these speeds the fuel savings used to justify the regulation’s adoption cannot be attained. If the fuel savings cannot be attained, the corresponding health benefits from reduced GHG emissions cannot be realized. Under such a scenario, the burdens imposed by the GHG Measure will significantly outweigh the regulation’s unobtainable benefits, thereby reducing the likelihood that it will survive legal challenge.

Even if the GHG Measure’s intended benefits are realized, the problem California might encounter in sustaining the validity of its regulations under a dormant commerce clause challenge is that air contaminants contributing to public health concerns are inherently fluid, and therefore global in nature. Indeed, the heads of the U.S. Departments of Agriculture, Commerce, Transportation, and Energy, in response to the U.S. Supreme Court’s decision in Massachusetts v. Environmental Protection Agency, agreed that the regulation of GHGs must take a different approach than that used to historically regulate air pollution:

the Clean Air Act is premised on the idea that controlling
emissions in the United States will improve air quality in the
United States, and that a state or region can improve its air
quality by controlling emissions in that area. This is not true
in the case of greenhouse gases. Controlling greenhouse gas
emissions in the United States will reduce atmospheric
concentrations of those gases only if our emission reductions are
not simply replaced with emissions increases elsewhere in the
world.

In adopting the GHG Measure, California is clearly attempting to address a global issue, which as discussed above, will have a significant impact on interstate commerce. Under such a factual scenario, courts may need to develop a new standard for analyzing the validity of state GHG regulation. Such analyses will need to not only evaluate the burdens and benefits of such regulation on interstate commerce, but whether those benefits are realized at a local, state, national, or even international level. The result of such an analysis will hopefully determine how to equitably apportion the burden associated with such benefits.

For more information, please visit http://climatechangelegal.blogspot.com/ or
http://rajivtata.com

For the Post analyzing the EPA’s Press Conference, follow this link:  https://transportenvllaw.wordpress.com/2009/03/31/epa-proposes-to-create-an-emission-control-area-along-the-us-coastlines-to-cut-harmful/

EPA issued the following press release this morning:

EPA Administrator Lisa P. Jackson will hold a joint news conference on Monday with federal and state officials to announce a new proposal to address harmful emissions from ships that travel near communities where tens of millions of Americans live, work, play and learn.

Administrator Jackson will be joined by Coast Guard Rear Admiral Sally Brice-O’Hara, New Jersey Governor Jon Corzine, Senator Frank Lautenberg and Congressmen Donald Payne and Albio Sires on Monday at Port Newark in New Jersey.

Emissions from ocean-going ships can contaminate the air in nearby communities. These ships dock at more than 100 U.S. ports and more than 40 of those ports are in metropolitan areas that do not meet federal air quality standards.

Who: EPA Administrator Lisa Jackson, Coast Guard Rear Admiral Sally Brice-O’Hara, New Jersey Governor Jon Corzine, Senator Frank Lautenberg and Congressman Donald Payne, Congressman Albio Sires

What: Press conference to announce proposal to slash harmful ship emissions

When: Monday, March 30, 2009 at 12:00 p.m.

Where: Berth 50 at Port Newark.

Rain Location: New York Shipping Association Training Center, 1210 Corbin Street, Elizabeth.

Related Articles:

On September 22, 2008, the Port of Los Angeles and the Army Corps of Engineers prepared a draft Environmental Impact Statement.  The DEIS covered a proposed Specific Development project and associated infrastructure improvements on approximately 400 acres in connection with the San Pedro Waterfront Project.  The proposed Project involves development of a variety of land uses within the proposed project area, including public waterfront and open space areas, commercial development, transportation and parking facilities, and expansion of cruise ship facilities and operations.

The U.S. Environmental Protection Agency on December 15, 2008, however, issued a letter expressing environmental concerns about the significant and unavoidable impacts to air quality and environmental justice communities, and planned ocean disposal of sediments.  EPA recommended commitments to conduct an already planned port-wide health risk assessment, coordination with the environmental justice community to identify additional measures to offset health impacts, implementation of a port-wide health impacts assessment to inform mitigation, and identification of beneficial reuse opportunities for sediment.  The EPA gave the DEIS a rating of “EC2,” which means that it has insufficient information to address its environmental concerns about the project.

Information about the DEIS can be found here:

The California Air Resources Board unanimously adopted its Scoping Plan to implement the sweeping changes in greenhouse gas emission dictated by AB 32.

As envisaged by the Scoping Plan, the state’s greenhouse gas emissions would be cut by 15% over the next 12 years.  Although it seems to lay out targets for most sectors of the economy, there are some sectors that are missing, like aircraft and airports. All told,  it amounts to an average cut of four tons of carbon dioxide and other greenhouse gases for every person in the state.

The Scoping Plan, which  will be implemented over the next two years, puts California at the forefront of national climate policy at a time when President-elect Barack Obama has vowed to put control of greenhouse gas emissions at the top of his environmental agenda.

Past posts on this topic:

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