PROVIDENCE, R.I. (WPRI) — Gov. Dan McKee’s administration will appeal a federal judge’s ruling that the state’s truck tolling program is unconstitutional, McKee announced Tuesday night during a 12 News gubernatorial debate.
McKee had not previously said whether or not the state would appeal the Sept. 21 decision, which forced the Department of Transportation to shut off the tolling gantries. The state had 30 days to give notice of appeal.
“We’ll appeal,” McKee said in response to a question from debate moderator Tim White. “We met with the attorney general, the Senate president … along with the [House] speaker, we’ll be appealing.”
Spokespersons for Senate President Dominick Ruggerio and House Speaker Joseph Shekarchi confirmed they met with the governor and Attorney General Peter Neronha on Oct. 7 to discuss whether to appeal the case.
“The consensus of all parties, based on the court’s decision and our respective legal teams, was that it would be in the best interest of the state to appeal Judge Smith’s ruling,” Shekarchi and Ruggerio said in a joint statement.
The truck toll program was a key funding element of former Gov. Gina Raimondo’s RhodeWorks program, which sought to fix the state’s crumbling roads and bridges. The highway tolls — which started being collected in 2018 — were only levied on large tractor-trailer trucks, not passenger vehicles or smaller trucks, under the argument that the larger vehicles do more damage to the roads.
The court order to shut down the tolls last month came as a result of a federal lawsuit from the trucking industry, which successfully argued that the tolls violated the dormant commerce clause of the U.S. Constitution.
“RhodeWorks fails to fairly apportion its tolls among bridge users based on a fair approximation of their use of the bridges, was enacted with a discriminatory purpose, and is discriminatory in effect,” U.S District Judge William Smith wrote in his decision.
The decision immediately sparked concerns that the state could expand tolls to all vehicles, an idea that McKee quickly shot down. Senate President Dominick Ruggerio and House Speaker Joseph Shekarchi also said they would not extend tolls to cars. (Doing so would require approval from the General Assembly.)
Ashley Kalus, the Republican candidate for governor, said during Tuesday’s debate she would not be appealing the toll decision if elected governor.
“We know that the law was unconstitutional and bad law,” Kalus said. “What the governor is saying in appealing, is he’s delaying the inevitability that he wants to tax or toll all trucks and cars.”
She also criticized the governor for the amount of taxpayer dollars going into the legal fees for the court case. The state spent $8.4 million on outside legal counsel for the suit, according to a spokesperson.
It’s not immediately clear what the state’s argument will be in the appeal. Attorney General Peter Neronha, whose office represents the state in the case, said it was too soon to get into the specifics.
“The reality is that the dormant commerce clause is not a settled area of the law, even at the U.S. Supreme Court,” Neronha said Wednesday. “If the policymakers believe in the policy, then it is one that in my view there’s a credible appeal to be had and then we should bring it.”
Neronha said the notice of appeal would be filed before the deadline later this month.
Chris Maxwell, the president of the Rhode Island Trucking Association, declined to comment on McKee’s decision to appeal.
The RhodeWorks program has other funding streams such as federal money that the DOT says can sustain the schedule of road and bridge repairs without the tolling revenue.
The 12 truck toll locations had brought in about $100 million total when they were shut off last month.