New Hampshire Motor Transport Ass'n v. Flynn

• Decision Date: 26 December 1984
• Docket Number: No. 84-1226,84-1226
• Citation: 751 F.2d 43
• Parties: , 53 USLW 2348, 15 Envtl. L. Rep. 20,098 NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, et al., Plaintiffs, Appellees, v. Richard M. FLYNN, et al., Defendants, Appellants.
• Court: U.S. Court of Appeals — First Circuit

Page 43

751 F.2d 43

78 A.L.R.Fed. 273, 53 USLW 2348, 15

Envtl. L. Rep. 20,098

NEW HAMPSHIRE MOTOR TRANSPORT ASSOCIATION, et al., Plaintiffs, Appellees, v. Richard M. FLYNN, et al., Defendants, Appellants.

No. 84-1226.

United States Court of Appeals, First Circuit.

Argued Sept. 5, 1984.

Decided Dec. 26, 1984.

Bruce E. Mohl, Asst. Atty. Gen., with whom Gregory H. Smith, Atty. Gen., and Douglas L. Patch, Asst. Atty. Gen., Div. of Legal Counsel, Concord, N.H., were on brief, for appellants.

Robert A. Hirsch, Atty., American Trucking Associations, Inc., Washington, D.C., with whom Roger C. Wendell, Jonathan D. Canter, Gray & Wendell, Boston, Mass., Grenville Clark, Wendell, Clark & Solomon, Manchester, N.H., were on brief, for appellees.

Before CAMPBELL, Chief Judge, BREYER, Circuit Judge, and SELYA, ^* District Judge.

BREYER, Circuit Judge.

The issue in this case is whether New Hampshire can lawfully require hazardous materials and waste transporters to obtain a state license for an annual fee of $25 or a single-trip fee of $15. We find that these fees do not violate the Constitution's Commerce Clause, U.S. Const., art. 1, Sec. 8, cl. 3, nor are they preempted by a federal statute, Hazardous Materials Transportation Act, 49 U.S.C. Sec. 1801, et seq. We therefore reverse a district court judgment holding them unlawful.

I

In 1975 Congress enacted the Hazardous Materials Transportation Act ("HMTA"), in part to replace a patchwork of sometimes conflicting state regulations with "a general pattern of uniform, national regulations." National Tank Truck Carriers, Inc. v. Burke, 608 F.2d 819, 824 (1st Cir.1979). HMTA does not forbid states to regulate in a manner consistent with its objectives. See DOT Inconsistency Ruling IR-3, 46 Fed.Reg. 18918, 18919 (March 26, 1981) ("Congress did not intend ... to occupy the field of hazardous materials transportation so as to preclude any state or local action."); cf. 49 U.S.C. Sec. 1811(a) (preempting any state requirement "inconsistent" with HMTA). In 1983 New Hampshire enacted New Hampshire Laws of 1983, Chapter 393, which, for the most part, simply required the state Commissioner of Safety to enforce within New Hampshire rules identical to the federal hazardous transportation regulations. Chapter 393, however, also imposes a $25 or $15 license fee requirement on any vehicle that carries enough hazardous materials or waste (typically, 1000 pounds) to fall within the federal rules requiring it to display a diamond-shaped hazardous materials "placard."

The parties have agreed that the licensing provisions will raise between $700,000 and $800,000 in annual revenue. The state will use about 5 percent of the money raised for certain transportation "response" programs; it will give 20 percent to its Department of Safety to help enforce Chapter 393; and it will contribute 75 percent to its Hazardous Waste Cleanup Fund.

Three trucking associations, appellees here, sued the state of New Hampshire to enjoin enforcement of Chapter 393. The federal district court granted an injunction because it believed that the Commerce Clause of the federal Constitution prohibited the state from assessing these license fees and that the fees were inconsistent with, and preempted by, the HMTA. New Hampshire appealed. After examining the record in the case with care, we reach a different conclusion than did the district court about this close question.

II

The critical Commerce Clause question in this case is whether the license fees can be justified as a "user fee" bringing the case within the scope of Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U.S. 707, 92 S.Ct. 1349, 31 L.Ed.2d 620 (1972), the leading Supreme Court case on the subject. The state argued below and in this court that the license fee amounts to such a "user" tax or fee, and that, under Evansville, the fee is constitutionally permissible. The truckers do not dispute the state's characterization of the fee, but they claim that it significantly impedes the flow of "interstate commerce," hence it is constitutionally forbidden. We conclude that Evansville dictates a finding in the state's favor.

In Evansville, the Supreme Court considered a New Hampshire law that required airlines using New Hampshire airports to pay the state a one dollar charge for each departing passenger. The state gave one half of the money it collected to the state's aeronautical fund, and it gave the other half "to the municipalities or the airport authorities owning the public landing areas...." Id. at 710, 92 S.Ct. at 1352. The Supreme Court, citing considerable precedent, held that a state can impose a "reasonable fee to help defray the costs" of state facilities upon "interstate and domestic users alike." Id. at 714, 92 S.Ct. at 1354. See Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001 (1939); Ingels v. Morf, 300 U.S. 290, 57 S.Ct. 439, 81 L.Ed. 653 (1937).

The Court noted that the state can impose a "flat fee" for the use of its roads "without regard to actual use by particular vehicles, so long as the fee is not excessive" when compared to the services the state provides those charged. In applying this standard, the Court pointed out, the challenger has the burden of proving that the fee is "unreasonable in amount for the privilege granted." The state has the benefit of the fact the Constitution requires not "precision" but " 'rough approximation' " in matching fee and benefit. Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U.S. at 715-16, 92 S.Ct. at 1354-55, quoting Harvester Co. v. Evatt, 329 U.S. 416, 422, 67 S.Ct. 444, 447, 91 L.Ed. 390 (1947).

The Court found the airport fee constitutional for three reasons. First, although the "vast majority" of air passengers flew interstate, the charge in principle applied to both interstate and intrastate passengers. Second, although the fee applied to some, not all, airport users, it roughly, though imperfectly, helped to apportion costs fairly among airport users. Third, "the airlines have not shown these fees to be excessive in relation to costs incurred by the taxing authorities." Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc., 405 U.S. at 717-19, 92 S.Ct. at 1355-56. The airlines argued that half of the revenues go directly to municipalities which might not use the money for airports. But, the Court held that it was "immaterial whether those funds are expressly earmarked for airport use." The issue is whether the amount of the funds received is "shown to exceed ... airport costs." Id. at 720, 92 S.Ct. at 1357.

The district court in this case has made no explicit factual findings about whether the revenue that the $25 and $15 licenses will raise is "excessive" in relation to the special services that New Hampshire provides hazardous materials and waste transporters (or to the special costs they impose upon New Hampshire). We have therefore examined the record ourselves, to determine whether it "permits only one resolution of the factual issue." Pullman-Standard v. Swint, 456 U.S. 273, 292, 102 S.Ct. 1781, 1791, 72 L.Ed.2d 66 (1982). Compare id. with Bigelow v. Virginia, 421 U.S. 809, 826-27, 95 S.Ct. 2222, 2234-35, 44 L.Ed.2d 600 (1975). The issue is whether the truckers have satisfied their burden of proving the fees constitutionally excessive in relation to costs. The record establishes that they have not.

The basic facts are not seriously disputed. The fees are expected to generate annual revenues of between $700,000 and $800,000. At the same time, the state must spend money to enforce the hazardous materials regulations. It must, for example, tell truckers what the rules are (it originally sent out notices to approximately 15,000 affected parties); it must inspect and license trucks; and it must train employees to carry out enforcement work. When a truck has an accident involving significant damage, the state sends employees to the scene to make out accident reports, to reroute or direct traffic away from the location of the accident, to inform the necessary state agencies which must then help to control the damage and clean up the spill, and to make certain that both people and surroundings will be properly protected. Such work is directly attributable to the transportation of hazardous substances within the state.

The record does not give precise figures about the costs of providing these services. It does provide evidence of three to five hazardous materials road spills per week, most but not all of which apparently involved "hazardous materials" trucks. It also shows that New Hampshire assigns two state troopers full time to hazardous materials work, although some part of their time is spent on problems not directly related to transport. And it shows that each trooper costs the state $30,000 to $40,000, plus equipment and initial training. Moreover, New Hampshire employs road safety inspectors, half of whom spend some significant portion of their time (15 percent to 25 percent, out of a total budget for all inspectors of over $600,000) on hazardous materials transportation. And, New Hampshire's more than 200 other state troopers occasionally inspect hazardous materials trucks or enforce the transport laws against violators.

The parties agree that with additional funds, that is, the $150,000 or so that Chapter 393 will make available, the Department of Safety intends to hire additional state troopers and safety inspectors and to purchase protective equipment, such as acid-proof suits and self-contained breathing apparatus. They also agree that the state would like to expand its training to include local police and firefighters and emergency ambulance crews.

In addition to the special state troopers and the safety inspectors, the record shows that the following departments have something to do with hazardous materials transport:

                Department                 Annual Budget

...