Well……..shockingly, the U.S. 9th Circuit Court of Appeals has given us a hearing date of Feb. 9, 2015, a Monday.
On December 1, CCTA counsel received notice from the Ninth Circuit’s clerk that our case is set for oral argument on Feb. 9, beginning at 9:30 a.m. in San Francisco. Each side will have 15 minutes to present their case arguments. We are actually last on calendar that day, with five cases ahead of us. Assuming they follow that order, we likely will not get called until 11:00 or 11:30 a.m., either way we will be there when court begins at 9:30 a.m.
If anyone is interested in hearing the arguments, counsel indicated that the court clerk said there was room for about 50. Along with counsel, Joe, Betty and I will be at the hearing. We will also keep you updated if the state attempts to reschedule the hearing.
The address is:
U.S. 9th Circuit Court of Appeals
95 7th Street
San Francisco, CA 94103
2-Years and Counting – Justice Delayed is Justice Denied!
It will be exactly two years since we were suspiciously pushed to appeal our case to the 9th, and as the saying goes, “justice delayed is justice denied.” We have been waiting for a very long time and need to get this “pure” Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) issue before the U.S. Supreme Court. We say this because we are pretty much sure how the 9th Circuit Court of Appeals will wrongly decide – the courts dysfunctional past history lends itself to the fact that there won’t be any surprises – or justice for us, just a trial, probably back in the original federal court all under Judge England.
Clamoring to Be Led Out of Harm’s Way
Now, I know many members are saying “Ha…I’m in compliance and now all of my competitors need to also be in compliance,” which is hard to argue against or disagree with. But there are a few things we should all consider in support of why we should continue our lawsuit against CARB and the State of California:
- One, the CCTA Board (formally CDTOA) four years ago tasked us with pursuing this very real argument into a FAAAA lawsuit and that’s what we intend to continue to do. Congress in 1993-94 thoughtfully passed legislation at a very high level, constitutionally speaking, around preempting states from passing rules and regulations which effect trucking. Legislation like the FAAAA and constitutional theories such as the “dormant” Commerce Clause demonstrate Congress’s reluctance to allow states to create burdensome regulatory regimes that harm ever-increasing interstate motor carrier activity. The doctrine of preemption is rooted in the Supremacy Clause, which makes the laws of the United States “the supreme Law of the Land; . . . anything in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const., art. VI, cl. 2. Preemption may be either express or implied, and is compelled whether Congress’ command is explicitly stated in the statute’s language or implicitly contained in its structure and purpose. Section 14501(c) (1) and other sections of the FAAAA are express preemption provisions which remove the states’ power to regulate certain aspects of motor and intermodal carriers. These sections provide that a state may not enact or enforce laws “related to a price, route, or service” of any covered carrier. California law, specifically CARB regulations, authorizes the state to fine users of and the withholding of registration for EPA compliant vehicles manufactured without diesel particulate filters. Because CARB’s Truck and Bus Regulation is overreaching and directly impacts all motor carriers who operate in California and directly effects their prices, routes, or services, we believe these regulations are preempted.
- Secondly, they will never stop! Who really thinks that CARB/EPA will ever be done recklessly regulating every business in our state, forcing unproven and seemingly very unreliable and dangerous technology on all transportation and construction businesses with no or little consideration of its regulations on the effects of these businesses – especially our members many who are predominately small businesses.
- Third, if the implementation of CARB’s rules is any indication of a government agency being “fair and balanced” – everyone is in trouble! Just one look at who has had access to, and received grant funding, and it’s easy to conclude that these regulations are, whether intended or not, meant to kill-off small business and reward large companies.
- Fourth, while everyone would agree that in the 1960’s and 70’s we did have environmental problems and to a large degree EPA and state agencies have been very successful in cleaning-up our air and water. Unfortunately, today, the environmental regulatory pendulum has swung too far left and public health science has become a joke in this state. It’s not really even science, but political science. CARB and EPA continues to only fund those public health academics (mostly in the UC school system) who can make absurd correlations between PM and premature deaths and even CO2 and our health. It’s all pretty much a fraud of biblical proportions now, all meant to feed an out-of-control, job-killing beast.
- Fifth, the environmentalist movements grand experiment (and hatred of anything related to fossil fuels) in California has only worked (so far) because of the absurd wealth that places like Silicon Valley, Hollywood, Coastal Tourism and our great weather sustains. Had this been attempted in any other state, it would have failed years ago.
- Sixth, Oh…did I mention that this will never end until the planet is theirs!
We have a position paper on “Why We Fight” that was drafted two years ago and is still relevant today concerning this issue posted on our website. H.L Mencken said it very clearly, “The whole aim of practical politics is to keep the populace alarmed (and hence clamorous to be led to safety) by menacing it with an endless series of hobgoblins, all of them imaginary.”
PS: Not to confuse the PM versus CO2 issues as regulators seem to constantly do. Did you read about the mellow 2014 Atlantic hurricane season that ended Sunday (Nov. 30), marking a record-breaking nine years since a Category 3 hurricane (or stronger) made landfall along U.S. coastlines. So what happened to “extreme weather events” AKA Manmade Weather Change, AKA Global Warming? I guess Mr. Buffet’s jokes about if there was increased weather related damage (extreme events) the insurance industry didn’t see any of it in the form of claims! Damn Deniers!