A California trial court has ruled that the California Air Resources Board cannot collect a $30 fee as part of an update to its transport refrigeration unit (TRU) emissions regulations.
CARB adopted those regs, called the "Airborne Toxic Control Measure for In-Use Diesel‑Fueled TRU and TRU Generator Sets, and Facilities Where TRUs Operate" rules (TRU ATCM), in 2004 and has amended them multiple times since, including most recently in 2022.
Notably, TRU ATCM reg is not the only one in which CARB is attempting to collect fees from operators for compliance. The court's ruling could have implications for CARB's new Clean Truck Check program, which puts in place an emissions-testing program for trucks registered in California, as well as those operating within the state but registered elsewhere.
The 2022 TRU ATCM amendments as written would have required carriers and owner-operators operating diesel-fueled reefer units to newly pay a $30 operating fee and affix a CARB-issued compliance label to both sides of the reefer-unit housing every three years. The requirement applied to all operators, regardless of whether they are registered in or outside California.
The TRU ATCM rule has required California-based TRUs to be reported to CARB since July 31, 2009. The 2022 amendments expand the reefer reporting requirements to all that operate in California, including out-of-state-based units. Reporting of out-of-state-based reefers that operate in California begins Dec. 31, 2023.
Up until a court ruling Dec. 4, operators were also going to be required to pay $30 every three years they operate these units in the state. The California Trucking Association challenged the fee, claiming CARB did not have the authority to collect the fee. The Superior Court in Fresno County sided with CTA, noting that “CARB has acted outside its authority,” making the adoption of the fee invalid.
The court took issue with CARB -- an unelected body made up of 14 voting members and two non-voting members who are members of the state legislature -- collecting fees in the first place.
“At first glance it is a bit startling to learn an unelected body could demand a fee from the persons they will also be regulating,” Judge Robert Michael Whalen Jr. said in the court’s decision. “One need look no further than our Nation's founding document to realize we are a people offended by the idea of unelected officials taking money from people within our community.”
Whalen even went so far as to say that such a fee is “worse” than a tax, because “it is a fee charged so the government can enter into or on a person’s property and ensure they are in compliance with current regulations imposed upon them by the same agency. If there is a word which describes such a fee coupled with this governmental action, it is unlikely to be found in our civil codes.”
The court noted that in both the Mulford Carrell Air Resources Act (which established CARB in 1967) and the California Global Warming Solutions Act of 2006 (which identified CARB as “the state agency charged with monitoring and regulating sources of emissions of greenhouse gases”), the state legislature “has communicated the fees to be collected by CARB are limited. Those limitations prevent the types of fees presented in the amendments of the TRU ATCM.”
As noted, the reg is not the only one in which CARB attempts to collect fees from operators for compliance. CARB's new Clean Truck Check program institutes an emissions-testing program for trucks registered in California, as well as those operating within the state but registered elsewhere. Along with the required "smog checks," the program also requires an annual $30 fee from anyone operating in the state.
As Western States Trucking Association Director of Governmental Affairs Joe Rajkovacz said in November, there has not yet been a lawsuit challenging the Clean Truck Check fee, which is required to be paid, along with trucks being registered, by the end of this month.