The Owner-Operator Independent Drivers Association (OOIDA) is trying to take its so-far-unsuccessful battle over Pennsylvania tolls to the U.S. Supreme Court.

At the heart of the effort by the OOIDA and several other plaintiffs in the case is the question of whether there is legally such a thing as an excessive toll. The definition of "excessive" here is not just that it gets motorists and truckers complaining about how high it is. Rather, the question is whether a toll can be so high that it impinges on interstate commerce, the regulation of which is a federal activity, and whether the Pennsylvania tolls are so excessive that they meet that standard.

OOIDA is asking the U.S. Supreme Court to grant certiorari and review an April decision of the U.S. District Court for the Middle District of Pennsylvania, upheld in August by the Court of Appeals for the 3rd Circuit, which is based in Philadelphia.

In that decision, according to the petition submitted by OOIDA's legal counsel, The Cullen Law Firm, the court found "that Congress expressed ‘unmistakably clear' intent to authorize states to impose unlimited tolls that would otherwise violate the dormant Commerce Clause" in a federal statute "that addresses how toll receipts may be spent, but which is silent as to the amount of tolls a state may impose and collect." The "dormant" Commerce Clause is a legal term defined by one legal website as "not federal power to act but restrictions on state power that are inherent in the Commerce Clause."

The writ of certiorari focuses not only on the legal questions involved but also on the size of the tolls. The certiorari request, in order to help drive home its point about the size of the tolls (first approved in 2007), takes the Pennsylvania tolls and extrapolates them out to a national scale.

It notes these numbers: a class 8 vehicle would pay $3,169 to go from San Francisco to Atlantic City, New Jersey, if the size of the Pennsylvania tolls were applied to a cross-country highway. A regular passenger car would pay $510. "There is no indication that either the district court below or the Third Circuit considered these broader consequences if other states followed Pennsylvania's lead," the writ says.

Source: OOIDA writ to U.S. Supreme Court

That Pennsylvania planned to use the increased toll revenue for a variety of infrastructure projects around the state beyond the support of existing Pennsylvania toll roads is not in dispute. The request for review to the Supreme Court says the revenues raised by the toll are 250-300% of the cost of operating the Pennsylvania Turnpike.

But the primary thrust of the OOIDA argument is that states cannot just do what they want when it comes to tolls. The request for certiorari relies heavily on a legal precedent from 1972 involving the airport serving the Evansville, Indiana, area. Under Evansville, according to the OOIDA petition, a levy is "reasonable … if it is based on some fair approximation of use of the facilities; is not excessive in relation to the benefits conferred and does not discriminate against interstate commerce."

But the spending of the funds raised is far from a "fair approximation," according to the writ. "These excessive toll receipts are directed by statute to be transferred — in amounts now totaling billions of dollars — to PennDOT to support mass transit and other infrastructure projects having no functional relationship to the Turnpike," it says.

But the decisions by the 3rd Circuit district and appellate level to approve the tolls is groundbreaking, OOIDA argues. "Never in the history of the United States has Congress or a court concluded that user fees of this magnitude are constitutionally appropriate," the certiorari writ says.

The filing by OOIDA also spells out several other court precedents that it says limit a state's ability to levy fees that are particularly large or not aimed at the specific activity being tolled. With the decision of the 3rd Circuit at odds with these other decisions, the writ says, the inconsistency "is simply unacceptable."

Or as the writ says in the title of one section of arguments: Congressional Legislation Addressing the Spending of Toll Revenues Does Not Free State Tolling Authorities from Dormant Commerce Clause Limitations on Toll Collections."

That section title focuses on the absence of something: Congress saying what a state couldn't do. It said what it could do, like how to spend toll revenues. But by not putting limits on the size of the tolls collected, according to OOIDA's attorneys, there is now the question "of whether congressional authorization may be implied on the basis of legislative silence." That absence of anything concrete is what brings the "dormant" Commerce Clause into question.

OOIDA in its earlier actions said the high fees would interfere with the "right to travel," a right that it said has been recognized by many courts in a variety of cases. But the courts of the 3rd Circuit instead adopted a standard which the writ says has "never [been] endorsed by this court … that petitioners must allege that their travel was actually deterred by [the state's] toll amounts."

Besides OOIDA, the National Motorists Association is a plaintiff, as well as individual organization members.

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