Calling the regulation "overreaching," the California Dump Truck Owners Association has filed suit against the California Air Resources Board challenging the legality of board's Truck and Bus Regulation.

The lawsuit, California Dump Truck Owners Association v. Air Resources Board, was filed in the U.S. District Court, Eastern District of California, Sacramento Division, on February 11.

Specifically, CDTOA asserts that CARB's regulation is unconstitutional as it is preempted by the Federal Aviation Administration Authorization Act, and seeks an injunction prohibiting CARB from enforcing the rule.

CDTOA has attempted to work with CARB for more than four years to find reasonable solutions that accomplish the goal of cleaning California's air while avoiding the needless devastation of the state's trucking industry and specifically the dump truck industry, the group said in a press release.

The group says the dump truck industry is struggling with 50 percent unemployment and rampant construction price deflation in the state. It claims enforcement of the costly emissions rule will cause incalculable damage to the construction transportation industry.

CARB, the association says, has repeatedly refused to address the association's concerns. Left with no remaining option, CDTOA has decided to pursue a solution through the courts.

"Our members are experiencing the worst economic conditions in living memory and CARB continues to place impossible regulatory burdens on them at a time they can least afford it," says Lee Brown, executive director of CDTOA. "Our members support clean air, but the air we breathe can't be more important than the people that are breathing it."

Brown says the CARB regulations would adversely affect the truckers' business model by forcing premature retirement or replacement of otherwise perfectly good assets. That, Brown notes, would force dump truck owners to close their businesses "leaving them and their families jobless during a time of record unemployment levels in California."

A new CARB-compliant truck costs more than $150,000 to purchase, the group claims. With haulage rates down 40 percent from previous business cycles and the number of jobs cut in half from only a few years ago, replacing existing trucks is out of the question.

Retrofit devices, CDTOA notes, are described as short-term solution under the rule, yet they still cost tens of thousands of dollars and are mechanically unreliable. So not only will CDTOA members be prohibited from purchasing replacement trucks due to a lack of financial resources, they will be prohibited from earning any income at all because the rule prohibits them from operating their currently-owned trucks.

"Food on the table, a roof over your head, health care for your family are just as important, if not more, than nominally cleaner air. From what I can tell, joblessness is far more unhealthy than the air we breathe anywhere in this state today," CDTOA president and small business owner Rob McClernon says.

In 1994, CDTOA's press release notes, the U.S. Congress explicitly acted to retain sole oversight over motor carriers in the United States in order to prevent state agencies from over regulating these motor carriers. The FAAAA specifically prohibits any state or any political subdivision from enacting or enforcing any regulation related to the price, route, or service of a motor carrier.

Because CARB's Truck and Bus Regulation is overreaching and directly impacts all motor carrier members' prices, routes, or services, CDTOA believes it to be preempted by federal law pursuant to the supremacy clause of Article VI of the United States Constitution.

The association also cites the controversy surrounding misrepresented qualifications and credentials of one of the regulation's lead authors along with CARB's admission that it had grossly overestimated diesel emissions for its companion "off-road" rule by 340 percent.

As such, CDTOA is requesting the court prevent or enjoin the implementation of the CARB Truck and Bus Regulation. The case is being litigated by the Law Offices of Brooks Ellison, CDTOA's General Counsel.

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