California backs off drayage diesel ban -- for now

The California Air Resources Board has notified the California Trucking Association that it "will not take enforcement action" banning new diesel trucks in drayage work, part of the state's Advanced Clean Fleets (ACF) regulations, nor will it de-register model 2007-2009 natural gas drayage trucks as it had intended to.

The delays in enforcement of the ACF are an effort to buy CARB time until they hear back from the Environmental Protection Agency on the status of a waiver request that will allow the state to enforce the rules. The waiver request will likely take months, if not a year, according to the American Trucking Associations.

The move represents a major shift in CARB's stance, and comes after other legal setbacks on collecting fees. CARB, in it's communication to CTA, made clear that the change owes to CTA and CARB's ongoing legal battle over California's Advanced Clean Fleets regulations.

"[O]n November 17, 2023, CARB requested a preemption waiver from the United States Environmental Protection Agency (U.S. EPA), pursuant to 42 U.S.C. § 7543(b)(1)," CARB wrote to CTA.

42 U.S.C. § 7543 prohibits states from adopting or attempting to enforce "any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines," though under that part in section (b)(1), it says states can seek a waiver from the rule.

For now, no such waiver has been granted, and CARB said it won't enforce the standards -- yet.

Eric Sauer, chief executive officer of the California Trucking Association, reiterated that California cannot enforce the ACF rule until it receives a waiver from the EPA.

“California cannot enforce the Advanced Clean Fleets Rule without a waiver from EPA, and we appreciate CARB providing certainty to regulated fleets on this subject, he said. “We continue to oppose this rule for being utterly infeasible to achieve and for violating multiple state and federal laws. We will continue to advance arguments in future court proceedings and hope a more reasonable and achievable path to zero emissions can be reached.”

In its letter to CTA, CARB said the high-priority and drayage fleet reporting requirements, which require all port operators to register any diesel-powered trucks in use before Jan. 1, are on hold. Under the ACF regulation, after Jan. 1, any new trucks registered in CARB's system would have been required to be zero-emission.

"CARB will not take enforcement action as to the high-priority or drayage fleet reporting requirements or registration prohibitions until U.S. EPA grants a preemption waiver applicable to those regulatory provisions or determines a waiver is not necessary," CARB wrote.

"Accordingly, CARB’s registration system will not prevent fleets from adding new internal-combustion-engine vehicles in this period. CARB also will not take enforcement action against vehicles that exceed their useful life periods (as defined in the regulation and including 2007-2009 model-year natural gas drayage trucks) -- meaning CARB will not de-register those vehicles -- until U.S. EPA grants a preemption waiver applicable to the relevant regulatory provisions or determines a waiver is not necessary."

However, CARB made clear that if it does get the waiver, things could snap back retroactively.

"CARB encourages fleets to comply while the waiver request is pending and reserves all of its rights to enforce the ACF regulation in full for any period for which a waiver is granted or for which a waiver is determined to be unnecessary," the letter continued.

CARB said it would "de-register non-compliant vehicles" in the drayage registry if it gets the waiver, or if EPA decides it can proceed without a waiver. This means that if a fleet buys a new diesel-powered truck after Jan. 1 and registers it in CARB's system, they could risk losing the ability to use that truck at the ports if EPA grants the waiver.

"Accordingly, if fleets add noncompliant vehicles (e.g., new internal-combustion-engine vehicles) from January 1, 2024, onwards, those fleets should expect to receive a notice from CARB indicating that CARB may remove those vehicles in the event it receives the requested waiver or U.S. EPA decides no waiver is necessary," CARB wrote.

In April, EPA did grant CARB a waiver to enforce California's Advanced Clean Trucks rule, which mostly targets truck manufacturers, but that has come under legal challenge from the Western States Trucking Association.

CARB's efforts to end diesel trucking at the ports have gotten off to a rocky start, with drayage fleets saying they bought up and registered a glut of diesel trucks in late 2023 to get around the coming ban.

Small fleet owner Bill Aboudi of AB Trucking in Oakland, California, said it was unlikely he'd be able to capitalize on the delay by sourcing and registering more diesel trucks.

"We are having a hard time buying diesel trucks to buffer for this rule and will just have to downsize when the trucks are obsolete in California, which will translate to a shortage of trucks when volume picks up in the future," he said. "CARB needs to lay off so we can catch our breath."

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