ELR Citation: ELR 20098
No(s). 84-1226 (1st Cir. Dec 26, 1984)

The court rules that New Hampshire's license fees for transporters of hazardous materials do not unduly burden interstate commerce and are not preempted by the Hazardous Materials Transportation Act (HMTA). The court holds that the licenses are essentially user fees, which are permissible so long as they are not excessive. The court holds that the truckers challenging the fees failed to prove that the fees are excessive in relation to the services provided by the state.The fact that 75 percent of the fees are earmarked for waste control unrelated to transport is irrelevant, so long as the revenue the fees generate is roughly equivalent to the state's expenditures for hazardous materials transport control. The fees reflect a fair, if imperfect, allocation of the state's costs. And if, as appellees warn, multiple states impose fee schemes that collectively burden commerce, the Department of Transportation under the HMTA may promulgate regulations that preempt the state schemes.

The court also rules that the fees are not preempted by the HMTA itself. The court notes that the district court could have encouraged the parties to seek an administrative ruling on whether the fee scheme was preempted. Turning to the judicial record, the court disagrees with the lower court's finding that the scheme will interfere with DOT's mandate that hazardous materials be transported without unnecessary delay. The delay, stemming from limited licensing office hours, is no more than the delay that all states impose on all trucking under their various licensing schemes.

Finally, the court disposes of three arguments not ruled on below. It holds that the fee scheme is not preempted by the Interstate Commerce Act, is not unconstitutionally vague, and does not violate the Equal Protection Clause. The court does not decide unbriefed questions of whether the scheme violates the state constitution.

[The opinion of the district court appears at 14 ELR 20256.]

Counsel for Appellants
Bruce E. Mohl and Douglas L. Patch, Ass't Attorneys General
Division of Legal Counsel
208 State House Annex, Concord NH 03301
(603) 271-3658

Counsel for Appellees
Robert A. Hirsh
American Trucking Associations, Inc.
1616 P St. NW, Washington DC 20036
(202) 797-5344

Grenville Clark III
Wendell, Clark & Solomon
50 Bridge St., Manchester NH 03101
(603) 625-4100

Jonathan D. Canter
Gray & Wendell
60 Congress St., Boston MA 02109
(617) 426-3900

Devine, J., before Campbell, Breyer, and Selya,^* JJ.