Anti-Idling Laws: Landlords and Tenants Beware

Over the past two years, many states have passed “anti-idling” laws that prohibit excessive motor vehicle idling. The laws typically prohibit idling for more than three to five minutes at a time in any one-hour period. While the focus of these laws is on owners and operators of larger commercial vehicles, many are written so broadly, that enforcement procedures and fines can be imposed on landlords/property owners and tenants of property on which third party regulated vehicles are operating. So whether you are a landlord/property owner or tenant at virtually any commercial property (e.g., industrial/warehouse/distribution facilities, retail centers, office buildings, hotels, truck stops, gas stations or apartment complexes), you must be aware of the potential liability you face arising out of the growing number of these laws.

Background

This recent trend of state-level anti-idling regulation was partly a response to a patchwork of inconsistent county, municipal and township laws. The commercial trucking industry and others pushed for federal legislation that would preclude the local regulations and provide national uniformity. Eventually, however, the EPA decided not to create federal anti-idling regulations, electing instead to issue a Model State Idling Law (the “Model Rule”). The EPA's objective was to encourage states to pass their own laws by following the Model Rule, thereby encouraging national consistency without federalizing anti-idling regulation.

Unfortunately, the EPA's approach appears to have largely failed to achieve this goal of uniform requirements, as many state anti-idling laws are inconsistent on idling time limits, types of vehicles being regulated, and third-party liability exposure for driver violations. For example, while the EPA's Model Rule imposes liability on owners of properties where vehicles load and unload, it is written in a manner that makes it clear that liability only attaches to property owners if they “cause” the idling to occur (e.g., if their distributions logistics are set up in a manner that causes trucks to queue for long periods of time in extreme weather). In contrast, a number of state anti-idling laws impose liability on landlords/property owners and tenants for merely “permitting” violations to occur at the property. Another important distinction under the Model Rule is that landlords/property owners and tenants are prohibited from “causing” vehicles to idle for more than 30 minutes in any one-hour period, while the vehicle driver is limited to only five minutes in any one-hour period. Most of the state laws that have third-party liability provisions make no such time limit distinction, which potentially imposes a far greater burden on landlords/property owners and tenants of property to monitor the actions of drivers they do not employ or directly control.

Who Do the Laws Apply To?

All of the state anti-idling laws give the enforcement agency the authority to cite the drivers and owners of any vehicle that violates the idling restriction. However, many of the more recently enacted laws also apply to landlords/property owners and tenants that “permit or allow” violations to occur on their property. In some cases, fines can be as much as $1,000 for each violation. For example, if a truck making a delivery to a commercial property violates the relevant anti-idling law while waiting to unload a delivery, the truck driver, the truck driver's company, the tenant operating a business on the property, and the landlord-owner of the property could all be issued citations and accompanying fines for the violation. The justification for extending liability beyond vehicle drivers to include vehicle owners, landlords/property owners and tenants, is to make sure that all parties that may have some influence or control over regulated vehicles be incentivized to cause compliance with the law. Pennsylvania's Diesel-Powered Motor Vehicle Idling Act extends to landlords and tenants and was the first state law to impose an affirmative obligation on landlords or tenants to post “anti-idling” signs, if regulated vehicles are regularly on the property.

How to Reduce Potential Liability

Obviously, drivers and owners of regulated vehicles need to know and comply with the requirements of any anti-idling laws enacted in the states, counties, and municipalities in which they operate. This advice also applies to landlords and tenants that own and operate their own regulated vehicles on their property. However, landlords and tenants need to be extra vigilant in those states where the anti-idling law imposes liability and obligations on them for third party vehicles operating on the property, even though the vehicles are not owned or operated by the landlord or tenant. While enforcement will be in the discretion of the enforcing officers, representatives that we contacted at enforcement agencies of several states offered assurances that at this time citations would only be issued to drivers violating the relevant law, unless it was apparent that another responsible party knowingly permitted or willfully ignored violations by third party vehicles. Below are some steps to be considered by landlords and tenants relating to third-party vehicles at your property.

• Stay abreast of the local and state anti-idling laws in the jurisdictions in which regulated vehicles likely will be operating on property that you own/occupy.
• Improve the logistics system for processing truck loading and unloading, implement a call-in system when trucks are ready to be processed, or provide a waiting room for truck drivers until they are ready to be processed.
• Educate facility/property managers, loading dock supervisors and other employees that are supervising vehicle areas on the anti-idling requirements and require them to watch for drivers who may be violating the anti-idling law. If drivers that regularly come onto the property are not complying with the law, facility operators (where practical) could notify the driver's employer and keep a record that such a notice was given that can be presented to an enforcement agency, in the event that the landlord or tenant is later cited.
• While Pennsylvania is the only state that presently requires commercial property owners or tenants to post anti-idling signs on the property, doing so voluntarily is a good way for owners or tenants to show they were not complicit in allowing violations to occur.
• Landlords may also consider sending notices to tenants that inform them about the requirements of the relevant law and direct tenants to conduct their operations accordingly.
• Landlords are also advised to include language in their leases that imposes compliance requirements on the tenant, and requires the tenant to indemnify the landlord against any violation caused or permitted by the tenant. This recommendation also would apply to landlords in dealing with third party managers in property management agreements and parking lot management agreements as well.

State Anti-Idling Laws

The chart below identifies the states that currently have enacted anti-idling laws and also indicates whether those laws apply to landlords and tenants of a property for third-party vehicles. Please note that this chart only identifies state laws that have been enacted. Anti-idling laws may also exist at the local level.

[IMGCAP(1)]

Jay Farris is a Partner and Jeff Adams is an Associate in the Real Estate Finance and Investment Practice Group of the Atlanta office of Alston & Bird LLP. Doug Cloud is a Partner in the firm's Environmental and Land Development Group.

Over the past two years, many states have passed “anti-idling” laws that prohibit excessive motor vehicle idling. The laws typically prohibit idling for more than three to five minutes at a time in any one-hour period. While the focus of these laws is on owners and operators of larger commercial vehicles, many are written so broadly, that enforcement procedures and fines can be imposed on landlords/property owners and tenants of property on which third party regulated vehicles are operating. So whether you are a landlord/property owner or tenant at virtually any commercial property (e.g., industrial/warehouse/distribution facilities, retail centers, office buildings, hotels, truck stops, gas stations or apartment complexes), you must be aware of the potential liability you face arising out of the growing number of these laws.

Background

This recent trend of state-level anti-idling regulation was partly a response to a patchwork of inconsistent county, municipal and township laws. The commercial trucking industry and others pushed for federal legislation that would preclude the local regulations and provide national uniformity. Eventually, however, the EPA decided not to create federal anti-idling regulations, electing instead to issue a Model State Idling Law (the “Model Rule”). The EPA's objective was to encourage states to pass their own laws by following the Model Rule, thereby encouraging national consistency without federalizing anti-idling regulation.

Unfortunately, the EPA's approach appears to have largely failed to achieve this goal of uniform requirements, as many state anti-idling laws are inconsistent on idling time limits, types of vehicles being regulated, and third-party liability exposure for driver violations. For example, while the EPA's Model Rule imposes liability on owners of properties where vehicles load and unload, it is written in a manner that makes it clear that liability only attaches to property owners if they “cause” the idling to occur (e.g., if their distributions logistics are set up in a manner that causes trucks to queue for long periods of time in extreme weather). In contrast, a number of state anti-idling laws impose liability on landlords/property owners and tenants for merely “permitting” violations to occur at the property. Another important distinction under the Model Rule is that landlords/property owners and tenants are prohibited from “causing” vehicles to idle for more than 30 minutes in any one-hour period, while the vehicle driver is limited to only five minutes in any one-hour period. Most of the state laws that have third-party liability provisions make no such time limit distinction, which potentially imposes a far greater burden on landlords/property owners and tenants of property to monitor the actions of drivers they do not employ or directly control.

Who Do the Laws Apply To?

All of the state anti-idling laws give the enforcement agency the authority to cite the drivers and owners of any vehicle that violates the idling restriction. However, many of the more recently enacted laws also apply to landlords/property owners and tenants that “permit or allow” violations to occur on their property. In some cases, fines can be as much as $1,000 for each violation. For example, if a truck making a delivery to a commercial property violates the relevant anti-idling law while waiting to unload a delivery, the truck driver, the truck driver's company, the tenant operating a business on the property, and the landlord-owner of the property could all be issued citations and accompanying fines for the violation. The justification for extending liability beyond vehicle drivers to include vehicle owners, landlords/property owners and tenants, is to make sure that all parties that may have some influence or control over regulated vehicles be incentivized to cause compliance with the law. Pennsylvania's Diesel-Powered Motor Vehicle Idling Act extends to landlords and tenants and was the first state law to impose an affirmative obligation on landlords or tenants to post “anti-idling” signs, if regulated vehicles are regularly on the property.

How to Reduce Potential Liability

Obviously, drivers and owners of regulated vehicles need to know and comply with the requirements of any anti-idling laws enacted in the states, counties, and municipalities in which they operate. This advice also applies to landlords and tenants that own and operate their own regulated vehicles on their property. However, landlords and tenants need to be extra vigilant in those states where the anti-idling law imposes liability and obligations on them for third party vehicles operating on the property, even though the vehicles are not owned or operated by the landlord or tenant. While enforcement will be in the discretion of the enforcing officers, representatives that we contacted at enforcement agencies of several states offered assurances that at this time citations would only be issued to drivers violating the relevant law, unless it was apparent that another responsible party knowingly permitted or willfully ignored violations by third party vehicles. Below are some steps to be considered by landlords and tenants relating to third-party vehicles at your property.

• Stay abreast of the local and state anti-idling laws in the jurisdictions in which regulated vehicles likely will be operating on property that you own/occupy.
• Improve the logistics system for processing truck loading and unloading, implement a call-in system when trucks are ready to be processed, or provide a waiting room for truck drivers until they are ready to be processed.
• Educate facility/property managers, loading dock supervisors and other employees that are supervising vehicle areas on the anti-idling requirements and require them to watch for drivers who may be violating the anti-idling law. If drivers that regularly come onto the property are not complying with the law, facility operators (where practical) could notify the driver's employer and keep a record that such a notice was given that can be presented to an enforcement agency, in the event that the landlord or tenant is later cited.
• While Pennsylvania is the only state that presently requires commercial property owners or tenants to post anti-idling signs on the property, doing so voluntarily is a good way for owners or tenants to show they were not complicit in allowing violations to occur.
• Landlords may also consider sending notices to tenants that inform them about the requirements of the relevant law and direct tenants to conduct their operations accordingly.
• Landlords are also advised to include language in their leases that imposes compliance requirements on the tenant, and requires the tenant to indemnify the landlord against any violation caused or permitted by the tenant. This recommendation also would apply to landlords in dealing with third party managers in property management agreements and parking lot management agreements as well.

State Anti-Idling Laws

The chart below identifies the states that currently have enacted anti-idling laws and also indicates whether those laws apply to landlords and tenants of a property for third-party vehicles. Please note that this chart only identifies state laws that have been enacted. Anti-idling laws may also exist at the local level.

[IMGCAP(1)]

Jay Farris is a Partner and Jeff Adams is an Associate in the Real Estate Finance and Investment Practice Group of the Atlanta office of Alston & Bird LLP. Doug Cloud is a Partner in the firm's Environmental and Land Development Group.