when you read thank you your honor may i please the court linda gandara deputy attorney general for the state defendants i'd like to reserve five minutes from the battle here let's see if you can do better than the last person or we can do better for you we'll see ok thank you your honor now in order to assess the s p l before fear and question here the court needs to look at three complimentary federal the first one is the for our act and as this court found in union pacific under the for our act in one nine hundred seventy six the congress prohibited discriminatory thing against railroads but at that time there was a long standing state and so it prohibited discriminatory ta railroads but at that time there was a long standing history of having regulatory themes on railroads the court of knowledge that found that the regulatory thing at issue in that case was perfectly husband's materials transportation act but we believe that the primary concern with the hazardous materials transportation out is the burden on intrastate commerce i'm not sure i heard the answer is part of the fairness analysis permissibly a comparison of fees charged to the railroads and fish to the to the trucking industry that would be a consideration but we believe that the ha imposed by the activity that the fee is being assessed from in this case the activity where the thing is being assessed is a shipment of hazardous materials by rail and the s b eighty four feet is specifically for the purpose of addressing the gaps in the state's ability to respond to an accident or a spill or heaven forbid it have a catastrophic event so it's  not related to the volume of the material right and it's not related to the distance traveled it is a per trip thing so it doesn't assess mileage but it is for every trip whether that trip is wholly inside california or outside of california there is not a volume component but the statute and regulations do allow a shipper who believes that their shipment regulates the rate at railroad charges available the i c c a termination act says nothing whatsoever about fees there is nothing in the plain language of the term the nation that addressing fees and the railroads have not pointed to and we have not found a single business in a reasonable manner which is the as applied to asked for the termination act then there would be a problem but other than that we believe that the termination act is not about fees now the railroad argues that discrimination between track and rail but the definition of discrimination is treating similarly situated entities differently without adequate justification and we believe as we expressed in our briefs that here the state has indicated an adequate justification for the see in this experience based on the state's concern about growing amounts of hazardous materials being transferred transport into california the possibility of a serious event that california simply was not ready to address and what evidence do we have in the record of the really risk created rail transportation of the actual substances compared trucking transportation of toxic substances and not just degree of risk but experience that gets to the california's hand with respect to spills and cleanup costs granted there is nothing in the record about the problems provided or presented by trucks but what is in the record is evidence  catastrophic incidents involving rail particularly dunsmuir and also there were concerns about the incident put back that generated the first working group study that led to this said you can do yes but there's another way of trying to get at the same problem i'm very sympathetic to attempts to resolve the problem i'm not sure you can do it the way you did it well your honor with this particular fe is funding response in light of gaps in rail and rail is fundamentally different in the difficulties in response because with rail unlike with trucking trucks on a highway it can be cordoned off and easily gotten to but rail can be very different the tracks are not on the highway it's much harder to contain the spill it's a different need additionally as we pointed out in our briefs if the f or the equipment used for a fee is used for an emergency that does not involve rail then the fund would have to be reimbursed by the agency or the entity using that equipment so it would be at no rates that a railroad charges its customers and i its structure it requires the railroads to at this additional charge to its customers so we say ok we think that it's preempted the i eighty four at it broadly talks about the exclusive jurisdiction over transportation rates everything else you know has a very broad if there's nothing broader than that this pre emphasis about everything so i guess i'm having trouble seeing why it wouldn't preempt a state statute that requires railroads to charge more to its customers that seems to be really in the heart of charge whether you call it a fee or a charge it is an additional charge but again there is a longstanding and widespread history of states  imposing on rail and there's no reason that the state could not impose the directly on the ship the railroads have conceded that and if they had then you would have a problem with this preemption but but the state chose not to do it probably for some reasons of its own but they chose to do that so i don't i don't know why that makes a difference that they they didn't choose to impose a feat directly on the shippers as the court the supreme court in evansville stated the choice of the method of collection has historically been left to the states and if you look to the plain language of the terminations act and also consider the presumption against preemption there is no reason from the plain language in the railroads have cited no case that indicates that that well established rule that the states can select the means to collect  grant a player injunction the i just want to be clear from the outset of the narrowness of the scope of our act or categorical preemption argument we're not arguing that categorically prevents a state from placing a fee or on the railroads or their customers we're talking about the collection mechanism that the state chose to use to collect that and that is the decision to regulate what the railroads charge their customers and that falls right in the sweet spot of the act is categorical preemption of state interference with the economic relationship between the railroads and their customers and this is the language and list attitude that actually that is there precludes them from regulating that what they choose what they collect from their customers i mean the language is a little strange that says you know the jurisdiction of the board over transportation and real carriers and the remedies provided  to rates is right so it has two different provisions the first business is the jurisdiction of the board over transportation by rail goes on to talk about with respect to rates classification rules so it's the with respect to rates and there and the remedies preempt any state regulation within the same space and so it's viewed as designed to prevent the railroads i'm sorry the states from interfering with this economic relationship and from regulating directly what congress intended d about it as actually a narrow preemption that the state can't regulate rates because we can regulate various things what happens if the state were not to regulate the rate charged by the railroad but were to regulate what the shippers do and to require that anyone shipping the real pay x to the state dependent upon what they're shipping would that be permissible not necessarily your honor there's two types of analysis of it to preemption there's the  categorical preemption which is it's that's what i'm referring to as being narrow the t v in the courts have said there's there are a few types of state regulations that are so permission you don't look at the burden so that's that if the state were to try to put the feet directly on the shippers that would be the if the statute says if for their own convenience the shipper and the railroad agreed that the railroad may collect this fee owed by the shipper and forwarded to the state they may do so  shipper in the railroad agree voluntarily without any question from the state that would just be easier for both sides and for the shipper to pay that to the railroad the railroad to submit those payments quarterly to the state would that be all right it would  says absolutely nothing about the mechanism that they use to collect this charge this charge it all it does is create a additional federal requirement that it be fair and our position is when you go to harmonize these two statutes you need to give full effect to both where you can and if the categorical part of it that we're talking about prevents you from directly regulating what the railroads charge their customers and and help the as an additional requirement that it be fair there's no basis to prohibition on regulating directly the rights of the road stars or customers but that's that's that's the way i read what he wrote there and it's consistent with it when you read on he says that this is discriminatory under either it or hemp or both i think i would i would  absolutely on hand and the discrimination standard under the statute may or may not be identical fair fair point your honor so let me just turn to the discriminatory nature of this and i just want to start with a few things where we're in agreement with the state you know of the bill that would have and they deliberately chose not to and so so from the beginning there's sort of that it's clear on its face is this this bill is discriminatory against the railroads because only our customers are required to pay it not trucks so the the burden is on the state to come for with a legitimate justification for it and you've heard that justification it's a two part justification one is is that there's some sort of unique risks of transporting by rail and there's a gap in their ability to respond to those unique risks we feel there are two fundamental problems with that as a justification first as to the unique risk they speak at great length about the risk of crude oil and the and there is been a rise in the transmission of crude oil not only in california but honor and so you know if you had a company that came to you with some sort of clear discrimination against a subset of their employees you would let them justify it by saying that some two percent of our employees creates a problem that we're going to and we use to what you see coming into and out of the ports on a daily basis the big old containers that come in they're like little lego pieces where they get stacked up real high on the boats when they get to the port that container either gets put on a truck or get put on a railroad to its destination but the state chose to if it's a shipment of batteries a container full of batteries that comes on only if it goes on the truck on the rail well that customer have to pay this charge where it will if it goes on the truck no such charge is applied and have their concerns about crude oil and this this very small percentage of the traffic can't justify the breath of the discrimination that they imposed here the other argument that they make your honour's is that there's a gap in their ability to respond our response to that is that's of their own doing i mean the yes your honor well what's your response to the comment that rail travel is distinctly different in terms of the location of rails that perhaps remote areas and and lack of services to those remote area so i guess i'd have to two responses one is actually goes back to a point that your honor asked but what's the evidence in the record about the relative risks the record is crystal clear that ninety two percent of the damaging costs from hazmat spills comes from trucks so it's not as though there's a disproportionate burden being placed on the state by the transportation of hazmat by rail when you say ninety applied to all modes of transportation and it was in place for several years and then it ended once they raise the funds if they felt they needed to respond that would have been a new mode only neutral way of addressing their concerns wanted regulating speed and curves and  fought that one yes or on to that that would be inappropriate there are federal limits on what the state can do so if successful you guys persisted in keeping that dangerous curve i sat on that case as i remember very well why i won't gauge on whether it's hope i fully respond our other response is that even if there is a gap in rural rare areas of the gov the country that's a decision by the state about how it chose to spend state resources so the the roads in the trucks they contribute millions of dollars in general tax money to the to fund amongst other things emergency response capabilities the state perhaps quite logically chose to spend that money to first address trucks but that can't justify requiring the railroads customers and only the ra customers to to pay to fill this gap when the trucks contribute nothing so if your honour's i don't have a minute left but if you have no further questions for me i would ask that you affirm the just court's decision to grant the preliminary injunction replace the court just a couple of points first it does appear that what we're really arguing about here is simply the collection mechanism and as i indicated previously that is something typically left to the states there's nothing in the plain language of the i c c termination to prevent that and the railroads have not argued that collecting creates the kind of undue burden that would result in as applied preemption indeed the state has in many times had proxies collecting for them it is just it is not uncommon in general secondly the railroads point out to intermodal traffic or the intermodal containers as being problematic i would like to know that that that is not a problem with the expense on a railroad is not sufficient to trigger terminations to preemption so even if imposing or getting the mechanism to collect this cost the real some money that is not sufficient to require our supply preemption in this case instead as we said this is a response to a real problem the california found with rail and because the shippers shipping the products into california are creating the risk california has the authority to impose a fee therefore we respectfully request that the court reverse