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The United States of California

J. Bradley Klepper
Attorney at Law

One of the fun things (read “challenges”) about writing these articles is trying to figure out something that is timely and that is of interest to you all. As well as myself. Let’s face it, nobody likes writing/reading about things that are boring. To that end, I try to come up with topics that I think are sexy. And by “sexy” I mean things that: (1) are interesting; (2) make you think; or (3) can have a significant impact on our industry…. not me wearing a satin smoking jacket as I write this article. I know, I know…. that is the exact opposite of sexy.

Of course, I could always hammer out an article addressing which states issue the most CDL citations…. the answer is California, then Texas, Florida, Illinois, New York, Pennsylvania, Ohio, Georgia, North Carolina and Michigan. Or I could write on the most important thing NOT to do when you get a citation in New Mexico…. the answer is sign the ticket in the field as this is an admission of guilt. Or I could write about my love for the Boston Red Sox or my Oklahoma State Cowboys. Both of which have brought me joy and taught me humility and to manage expectations.

Instead, today, I thought would write an article discussing federalism and how a single state may end up driving the regulations on the Clean Air Act and other federal laws.

What is federalism? Glad you asked. In the simplest terms, federalism is a fancy word to describe a system of government where some powers belong to the federal government and some powers are reserved to the states.

A quick example of federalism in action can be found in the Second Amendment. As you know the Second Amendment provides for “…. the right of the people to keep and bear Arms….” That is great and as an Amendment to the US Constitution it describes the right on a national level (federal); however, how that right is regulated is determined by each and every state. That is why we have such differences in gun laws across the country. Think of it this way…. big government says we can keep guns ….. small government tells us how that right will be regulated.

Okay lawyer guy, why the hell are you telling me about federalism and how does it impact our industry. I mention this, simply because Iowa and 18 other states have challenged the Environmental Protection Agency (“EPA”) decision to allow California to ban diesel trucks in the future. The argument claims that California’s Advanced Clean Trucks regulation is in violation of the Clean Air Act and other federal laws.

In very general terms, the way it works is that if the federal government has passed laws in a certain area (think EPA type laws/regs) and a state passes laws in conflict with the position taken by the federal government, federal law “trumps” the state law.

I bring this up because the EPA recently decided to grant waivers to the California Air Resources Board which allows them to set stricter emission rules than the federal Clean Air Act allows. In essence, this clears the way for other states to adopt California’s ban.

Well, what is so bad about California’s ban? I mean, I am all for cleaner air and reduced emissions but California’s regulations requiring net zero emissions for most buses, vans, trucks and tractor-trailers by 2035 is unrealistic. At the present time only 2% of the heavy trucks sold are electric. Moreover, commercial vehicle have made huge strides in reducing emissions.

In fact, Chris Spears, President and CEO of the American Trucking Association noted, “[t]o date, 98.5% of all emissions have been removed from our current commercial vehicle tailpipes. In fact, 60 trucks today emit what one truck emitted in 1988.” This is an amazing reduction.

Quite simply, I think Mr. Spears, said it best when he said “[b]y granting California’s waiver for its so-called advanced clean trucks rule, the EPA is handing over the keys as a national regulator.” Spears further said “[t]his isn’t the United States of California, and in order to mollify a never satisfied fringe environmental lobby by allowing the state to proceed with these technologically infeasible rules on unworkable and unrealistic timelines, the EPA is sowing the ground for a future supply chain crisis.”

At the end of the day, I agree with Mr. Spears. This waiver is handing the keys to regulation to the state of California. Carriers that roll in California will be required to meet their standards even though not required elsewhere. This really is giving the keys away.

So, I suggest we all keep an eye on this lawsuit as the outcome will have a huge impact on our industry.

Brad Klepper, Esq. is President of Interstate Trucker Ltd., a law firm entirely dedicated to legal defense of the nation's commercial drivers. Interstate Trucker represents truck drivers throughout the forty-eight (48) states on both moving and non-moving violations. Brad is also Executive Vice President & General Counsel of Drivers Legal Plan, which allows member drivers access to his firm’s services at greatly discounted rates. Brad spent almost a decade with the largest law firm in Oklahoma where his practice included extensive experience in transactional law, business defense litigation, and intellectual property. In addition, Brad is a licensed architect and serves as General Counsel to the Oklahoma Board of Architects, Landscape Architects and Interior Designers. Brad has dedicated much of his time to DataQs challenges, which are challenges posed to the FMCSA for CSA incidents, to examine data and reports filed by law enforcement.

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