Seeking to prevent the U.S. Environmental Protection Agency from making a final determination that allows states to restrict or ban the use of certain heavy construction equipment under the Clean Air Act (CAA), the American Road & Transportation Builders Association Transportation Development Legal Advocacy & Education Center (ARTBA-TDLAEC) sued the federal agency on April 17.
EPA authorization of state pre-emption of the CAA could render unusable billions of dollars of construction equipment on jobsites nationwide, require contractors to purchase new or retrofitted equipment and result in a morass of conflicting state-by-state regulations impacting transportation construction as well as a marked increase in the costs of infrastructure projects, ARTBA-TDLAEC said in a brief filed with the U.S. Court of Appeals for the District of Columbia Circuit, arguing the CAA does not allow state control levels. The court has jurisdiction on CAA cases.
The lawsuit is the launch case for the ARTBA-TDLAEC, the only entity in the U.S. that exclusively focuses legal activities to help ensure that approved state, regional and local transportation plans and projects move forward expeditiously. It monitors and becomes involved in environmental and business issues that have the potential to impact the planning, design and/or construction of transportation infrastructure projects.
“Whether it’s building or maintaining public transit, high-speed rail, interstate highways, city streets or bridges, every element of our transportation infrastructure network relies on heavy equipment,” ARTBA Assistant General Counsel Nick Goldstein said. “Amidst an economic recession, we should be taking every step to maximize the return on public infrastructure investment. Permitting a hodge-podge of state rules—many far more restrictive and costly than others—complicates the ability of our industry to reduce congestion, improve infrastructure and add new transit, road and bridge capacity.”
Due to the enormous expense of replacing the affected in-use off-road construction equipment—in some cases more than $1 million per machine—the cost of vital transportation and infrastructure projects will increase if EPA does not act to prevent states from enacting individual controls, the association’s brief said.
In addition, construction firms rely on the value of their construction equipment as assets to finance the purchase of new equipment and to secure bond financing to conduct public project work.
By simultaneously eliminating the value of existing equipment and forcing companies to buy newer equipment, pre-emptive state-level controls, such rules currently enacted in California, make compliance impossible. Companies will not be able to afford new equipment or bond additional work.
The ARTBA litigation is supported by the Outdoor Power Equipment Institute and the Construction Industry Air Quality Coalition members, which include four southern California trade associations: Associated General Contractors, Building Industry Association of Southern California, Engineering Contractors Association and the Southern California Contractors Association.
EPA is joined in contesting the litigation by the National Resources Defense Council, California Air Resources Board, South Coast Air Quality Management District and the American Association of Railroads. They are expected to submit their own legal briefs later this year.
Oral arguments in the case could be heard as early as fall of this year. A decision could come by late 2009 or early 2010.
