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New Hampshire Motor Transp. Ass'n v. Flynn

Citation: 14 ELR 20256
No. No. 83-669-D, (D.N.H., 12/30/1983)

The court declares that a New Hampshire statute that requires transporters of hazardous materials to obtain a license from the state is preempted by the Hazardous Materials Transportation Act (HMTA) and violates the Commerce Clause. The statute requires that anyone who transports hazardous materials by truck must obtain either an annual or a single-trip license. The statute authorizes the imposition of civil and criminal penalties upon violators, and directs that licensing fees be earmarked for certain hazardous waste cleanup funds and highway safety programs.

After noting the presumption against the preemption of state laws, the court rules that the statute in question is nevertheless inconsistent with the requirements of the HMTA and the Department of Transportation (DOT) implementing regulations. DOT rules provide that shipments of haxardous materials are to be moved "without unnecessary delay." The state law serves to frustrate this requirement because the single-trip licenses available under the state statute can be obtained only during jweekday business hours, and thus some evening and weekend shipments will be delayed at the state border until the state's licensing office opens.

With respect to the Commerce Clause issues, the court determines that the license fees provided by the statute are best viewed as taxes upon the transportation of hazardous materials, and it weighs their validity under the four-part test set out in the tax cases. The court finds that there is an insufficient nexus between the taxed activity and the deposit of hazardous wastes in the state, insofar as many of the hazardous materials shipments subject to the tax do not constitute hazardous waste and are not likely to become hazardous waste within the state. Although the court holds that the tax is fairly apportioned between intrastate and interstate motor carriers, it rules that the tax discriminates against interstate commerce and is not fairly related to the services provided by the state. Most of the tax monies paid by out-of-state shippers are to be used to remedy the state's domestic hazardous waste problem, not to promote highway safety. Though concluding for these reasons that the statute is unconstitutional, the court denies plaintiffs' request for an order mandating the return of the tax monies previously paid to the state, ruling that such an order would be impermissible under the Eleventh Amendment.

Counsel for Plaintiffs
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

Counsel for Defendant
Douglas L. Patch, Ass't Attorney General
Division of Legal Counsel
208 State House Annex, Concord NH 03301
(603) 271-3658