Summary
Norfolk Southern Railway v. City of Roanoke, 916 F.3d 315 (4th Cir. 2019), addresses whether a municipal stormwater management charge is a "tax" subject to the Railroad Revitalization and Regulatory Reform Act (4-R Act) or a "fee" exempt from its anti-discrimination provisions. Applying the three-factor San Juan Cellular test (imposing entity, population subject, and purpose of the charge), the Fourth Circuit held that the charge is a regulatory fee because it is part of a comprehensive Clean Water Act scheme, defrays the city's compliance costs, and incentivizes stormwater management. The court gave controlling weight to the charge's regulatory purpose, affirming summary judgment for the city and the Chesapeake Bay Foundation.
Topics
Practice areas
Questions Presented
- Whether the City of Roanoke's stormwater management charge is a tax or a fee for purposes of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 11501.
Holdings
- The stormwater management charge is a fee, not a tax, because it is part of a comprehensive regulatory scheme rooted in the Clean Water Act, its primary purpose is to remedy environmental harms and hold stormwater dischargers responsible, and it incentivizes property owners to reduce impervious surfaces.
Key quotations
“The City Council found that "an adequate, sustainable source of revenue for stormwater management activities is necessary to protect the general health, safety, and welfare of the residents of the city."” (at 2)
“"parcels ... with higher amounts of impervious surfaces contribute greater amounts of stormwater and pollutants to the city's stormwater management system and that the owners of such parcels should carry a proportionate burden of the cost of such system."” (at 2)
“a paradigmatic tax, which "is imposed by a legislature upon many, or all, citizens" and "raises money, contributed to a general fund, and spent for the benefit of the entire community," or (2) a paradigmatic regulatory fee, which "is imposed by an agency upon those subject to its regulation," and serves regulatory purposes by disincentivizing conduct or raising money to defray regulatory expenses.” (at 6)
“the charge is part of a regulatory scheme, rooted in the Clean Water Act, whose purpose is to remedy the environmental harms associated with stormwater runoff and to hold stormwater dischargers responsible for footing the bill.” (at 13)
Factual background
The City of Roanoke operates a stormwater management system under a permit from the Clean Water Act. It imposes a stormwater utility charge on all improved parcels based on the amount of impervious surface cover. Norfolk Southern, a large property owner, challenged the charge as a discriminatory tax under the 4-R Act, arguing that its ballasted property should be treated like pervious lawns and not subject to the charge.
Procedural history
The district court granted summary judgment for Defendants, concluding that the stormwater management charge is a fee rather than a tax. Norfolk Southern appealed.