17 States Sue to Block California's Advanced Clean Fleets Rule

A key difference between the suits is the defendant. The action filed Monday in U.S. District Court for the Eastern District of California is against Steven Cliff, the executive officer of the California Air Resources Board. The suit against ACT filed last June was against the EPA, which already had granted California a waiver to implement the Clean Trucks rule.

ACT targets manufacturers of trucks; ACF targets companies that buy and drive them. In tandem, the rules aim to achieve a fully zero-emission-vehicle (ZEV) fleet in California by the mid-2040s.

The latest suit comes as the implementation of the ACF is already on hold, following a lawsuit filed by the California Trucking Association (CTA) last year. That suit argues that the rule needs the same sort of EPA waiver CARB had been granted to implement the rule allowing the state to impose vehicle and emissions requirements that are stricter than those imposed at the federal level.

ACF enforcement on hold

CARB had resisted requesting a waiver for ACF, stating it wasn't necessary. But after the CTA filed its lawsuit, CARB ultimately did file a request with the EPA. That led to an agreement between CARB and the CTA that the state wouldn't enforce the ACF while the legal process played out — in particular the requirement that no new internal combustion vehicles could be added to the state's drayage registry. As part of the agreement, CTA said it wouldn't seek a preliminary injunction blocking the law. There have been recent legal filings in the case, but the ACF rule remains unenforced for now.

The latest suit was filed by Alabama, Arizona, Arkansas, Georgia, Idaho, Indiana, Iowa, Kansas, Louisiana, Missouri, Montana, Nebraska, Oklahoma, South Carolina, Utah, West Virginia and Wyoming. The Nebraska Trucking Association also is a plaintiff.

Most of those states are party to the suit against the EPA over the ACT waiver. A total of 19 states are plaintiffs in that suit.

The "Nebraska" lawsuit, which it will likely be known as given that the Cornhusker State is the first named plaintiff, poses familiar arguments regarding the ability of a state — usually California — to take action that goes beyond federal regulations such as the Clean Air Act (CAA).

Some of the arguments are similar to those invoked in legal battles over California's independent contractor law, AB5, including the restrictions placed on states by the Federal Aviation Administration Authorization Act (F4A), which limits a state's ability to pass regulations that could impact a "price, route, or service" of a motor carrier.

California's reach beyond its borders

Ultimately at issue is the fact that California is the 800-pound gorilla that sits anywhere it wants, per the old joke. The fear among other states, long before ACF, has been that a regulation in the Golden State effectively becomes a national regulation as OEMs resist building products that don't meet California's rules and companies seeking access to the California market change their operations to meet those rules.

ACF doesn't deal with the manufacture of trucks. But the states' concerns are that fleets traveling in their own states as well as California will need to adapt to the larger state's rules.

"California's regulation, which is called Advanced Clean Fleets, masquerades as a rule for in-state conduct" the states write in the Nebraska lawsuit. "But by leveraging California's large population and access to international ports on the West Coast, Advanced Clean Fleets exports its ‘in-state' ban nationwide, creating harms which are certain to reach Plaintiffs' States."

The states focus on the Commerce Clause of the Constitution — also a feature of much of the AB5 litigation — which grants Congress the ability to regulate commerce among states. According to the suit, that regulation can be seen in the adoption of F4A and the CAA.

"Emissions standards that vary from one State to another would divide the States and counter the goal of promoting interstate trade that helped unite the States under one constitution" the lawsuit says, citing the need for uniformity under the CAA.

The Nebraska lawsuit adds: "Congress enacted the FAAAA after States frustrated interstate commerce by imposing regulations on motor carriers like trucks. The solution was a federal bar on state laws relating to the price, route, or service of motor carriers that transport property. Like the CAA, the FAAAA protected certain methods of cross-state transportation from regulations that could have impaired travel within the country."

"Advanced Clean Fleets is barred by the Constitution, the CAA, and the FAAAA" the lawsuit says. "And Defendants' enforcement of this unlawful rule has injured and will continue to injure Plaintiffs."

One notable aspect of the suit is that it assumes the trucks that will be developed to meet the requirements of the ACT, even into 2045, will be battery-electric vehicles. The possibility of hydrogen-powered trucks, which many observers believe is the only viable technology for Class 8 ZEV trucks — is mentioned only once in passing.

The suit lists several projected negative impacts on the states — many of which it is noted have a direct road into California via Interstate 80 — that will result from ACF.

• "Because battery-electric trucks are significantly heavier than internal-combustion trucks, an increase in battery-electric trucks on roads will increase the number of overweight-vehicle permits that State Plaintiffs issue."
• The heavier weight of battery-electric vehicles will damage the states' roads.
• An increase in demand for electricity to power the trucks will put a strain on the states' grids.
• Singling out Nebraska, the potential for ethanol-powered trucks that benefit the state's corn growers could be lost.
• The length of time needed to recharge battery-electric vehicles will slow the efficiency of truck transportation.
• Members of the Nebraska Trucking Association would suffer damage from the costs of complying with California's rules if it wants to serve the giant California market.

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