The Journal Gazette
Tuesday, October 05, 2021 1:00 am

Justices asked to kill Toll Road hike

Truckers taking case to Washington, label Indiana action unfair

NIKI KELLY | The Journal Gazette

INDIANAPOLIS – The Owner-Operator Independent Drivers Association hopes the U.S. Supreme Court will step in to invalidate a large Toll Road hike Gov. Eric Holcomb negotiated in 2018 in exchange for $1 billion.

The group has filed a petition for writ of certiorari with the Supreme Court – a request to have the court review a lower court's ruling – that has been distributed for the Supreme Court's conference this Friday.

The truck drivers believe the toll increase – which did not affect passenger vehicles – is state discrimination and an undue burden on interstate commerce.

“The Seventh Circuit's opinion will serve as an invitation for cash-strapped states to follow in Indiana's footsteps by shifting the financial burdens of state and local projects by collecting excessive and burdensome tolls from persons to whom they have no political accountability – interstate travelers,” the writ filed by The Cullen Law Firm in Washington, D.C., said.

“In a time when states are giving renewed attention to how to pay for their extensive infrastructure needs, this Court should grant this Petition now to address the Seventh Circuit's strides toward economic Balkanization before they spread further and the burdens upon interstate transportation and commerce without limits become entrenched.”

In September 2018, Holcomb unveiled a negotiated deal with the private operator that runs the road to authorize a toll hike of 35% on heavy trucks in exchange for a $1 billion payment to the state. And he said the money would go to roads, broadband and trails.

The plaintiffs in the case own and operate heavy trucks and argued the toll increase violated the Commerce Clause of the U.S. Constitution by falling principally on interstate traffic.

They alleged that 50% of the heavy trucks that use the Toll Road transit the state and that 90% of heavy-truck traffic crosses the state's borders at one time or another. Higher tolls on these trucks therefore discriminate against interstate commerce, the trucking group said.

But the 7th Circuit U.S. Court of Appeals disagreed – ruling against the group in March.

The court found Indiana is exempt to rules that would apply to a regulator because it is a market participant. Precedent says when a state participates in – rather than regulates – the market, it is entitled to discriminate in favor of its own citizens.

“We have said enough to show that the toll increase is valid even if treated as discriminating against interstate commerce,” the ruling said. We need to be clear on this point: we have assumed for the sake of argument that there would be a constitutional problem if Indiana were a regulator rather than a proprietor, but we do not so hold.

“The tolls are neutral with respect to the origin and destination of the trucks. They are neutral with respect to trucks' ownership too. Citizens of Indiana who use the Toll Road to haul freight from Elkhart to Gary pay the same rate per mile, per axle, as do citizens of Wisconsin who haul freight from Ohio through Indiana to Illinois and beyond.”

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