Am I taking crazy pills?
I need some local transportation wonk—I’m looking at you, regular readers of this blog—to set me straight. Because as near as I can tell, a key piece of state transportation law doesn’t say what everyone thinks it says.
Let me explain. In Washington, “motor vehicle fuel” taxes are restricted by the state constitution to “highway purposes.” So everyone agrees that revenue from the state’s gasoline tax must be spent on roadways. I get that.
Here’s what I don’t understand: why everyone also agrees that the state’s tax on highway diesel must also be spent on roadways. As near as I can tell from reading Washington’s laws, diesel does not meet the legal definition of a “motor vehicle fuel.” And that would mean diesel tax revenues need not be spent on roads.
Before I proceed, I should mention that I’ve already consulted the experts on this matter. In fact, I reached out to four people I consider to be extremely knowledgeable about state transportation policy, and I made sure to consult folks across the political spectrum. They all agreed: taxes of “on-road” diesel are restricted to highway purposes.
But that’s not what the law seems to say.
Let’s dig in.
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To start with, here’s what the 18th Amendment of the State Constitution has to say:
[A]ll excise taxes collected by the State of Washington on the sale, distribution or use of motor vehicle fuel and all other state revenue intended to be used for highway purposes, shall be paid into the state treasury and placed in a special fund to be used exclusively for highway purposes.
But what is “motor vehicle fuel”? To find out, we need to peek at RCW 82.36, pertaining to the motor vehicle fuel tax. It says:
“Motor vehicle fuel” means gasoline and any other inflammable gas or liquid, by whatsoever name the gasoline, gas, or liquid may be known or sold, the chief use of which is as fuel for the propulsion of motor vehicles or motorboats.
Compare this with RCW 82.38, the special fuel tax act:
“Special fuel” means and includes all combustible gases and liquids suitable for the generation of power for propulsion of motor vehicles, except that it does not include motor vehicle fuel as defined in chapter 82.36 RCW, nor does it include dyed special fuel…
So, in a nutshell: motor vehicle fuel refers to “inflammable” fuels while special fuel refers to “combustible” fuels. Got that?
Now, “inflammable” and “combustible” are actually technical terms. OSHA and nearly every other source I found online says that the dividing line is a flash point of 100 degrees F. The flash point of gasoline is under 100F, making it “flammable” (which, just to confuse matters, is synonymous with “inflammable”), while the flash point of diesel is over 100F, making it “combustible.”
According to Wikipedia at least, there’s an alternative standard of drawing the flammable-combustible line at 140.9 degrees F. But it doesn’t matter. The flash point of diesel is 144F, which makes it a “combustible” substance rather than a “flammable” one under this alternative definition too. (The flash point of gasoline, by contrast, is at -45F, making it “flammable” under either threshold.)
But wait, you may be thinking. Maybe RCW 82.36 just uses the word “inflammable” in the old non-technical sense of “you can burn it.” It’s unlikely that the drafters of the legislation were that sloppy, but remember that the law also defines “special fuel” as a mutually exclusive category of fuel, and that special fuels can include fuels used for “the propulsion of motor vehicles.” The only apparent legal distinction between “motor vehicle fuel” and “special fuel” is not whether it’s used on the road but whether the fuel is classified as inflammable or combustible. So we’re more or less forced to understand what the distinction between those words really means.
What’s the upshot? As near as I can tell, since diesel fuel is not “inflammable” it is not therefore a “motor vehicle fuel” as defined by Washington State law. That means tax revenue from diesel—even diesel burned on the road—is not subject to the 18th Amendment’s restriction to highway purposes. And that in turn means that state lawmakers have a lot more flexibility to spend money on non-highway purposes like transit or pedestrian infrastructure.
Surely I can’t be the first one to notice this, right? What am I missing?
Hat tip to Yoram Bauman.
Matt the Engineer
I’m sure you can be the first one to notice it. I don’t imagine the average lawmaker to be well versed on the difference between inflammable and combustable. That said, it does seem like someone at the time of creating those laws understood the difference.
As a mechanical engineer, I agree with your technical interpretation. One nice property of diesel is that it doesn’t burn easily and doesn’t explode.
…Oops! I thought “inflammable” meant that you CAN’T burn it! Apparently I’m not alone here, either. See the “usage note” in the middle of this webpage:
Oregon Revised Statute 319.010 (12) defines motor vehicle fuel as meaning and including “gasoline and any other inflammable or combustible gas or liquid, by whatever name such gasoline, gas or liquid is known or sold, usable as fuel for the operation of motor vehicles, except gas or liquid, the chief use of which, as determined by the department, is for purposes other than the propulsion of motor vehicles upon the highways of this state.” So it appears that Oregon has a parallel construction but avoids the terminology conundrum you have found in Washington state law. While legislative history in one state may not be entirely relevant to interpreting another’s intent, it does suggest the distinction was made with a difference in mind.
While this is intriguing analysis I believe a political trump card has been played by the high lobby and truckers – MONEY RAISED AT THE PUMP GOES TO ROADS! Cracking open the “fuel tax” for use on anything other than roads will require an extremely well funded, sophisticated campaign.
Statutes and administrative codes cannot change the constitution. The clear intent of the constitution is to cover “motor vehicle fuels” i.e. any energy source the moves a vehicle. The fact that the statute makes a distinction in fuels doesn’t matter. And even if it did, the legislature would undoubtedly correct their oversight.
Eric de Place
I’m not so sure… my reading of the 18th amendment doesn’t yield a very clear intent at all when it refers to “motor vehicle fuels.” After all, everyone commonly believes that the 18th amendment was NOT referring to the fuel used to power lawn mowers, airplanes, tractors, construction equipment, etc — all of which of course has motors. It’s up to the legislature to decide what’s in and what’s out.
So understanding — and I’m definitely not a lawyer! — is that while statute can’t change the constitution, it can and does interpret it and provide it with meaning. And whether by accident or design, the legislature seems to have pretty clearly said that “motor vehicle fuels” do not include diesel.
BTW, your definition — “any energy source that moves a vehicle” — electricity used for EVs would also be considered a motor vehicle fuel.
Don’t really heavy vehicles, like trucks and such, use diesel? And don’t they mangle up the roads the MOST?
In which case, isn’t it entirely appropriate that diesel taxes SHOULD go toward maintaining the highways and roads?
Matt the Engineer
It’s most appropriate that a general sales tax be applied to all fuels and placed in the general fund. Then that our elected officials decide how to spend this money appropriately.
Remember, sending gas tax only to roads means it doesn’t go to schools, police, fire fighters, etc. We don’t send all of our candy taxes to state-funded dentists, or liquor taxes to rehab centers. That would give us all great teeth and would help solve alcoholism, but there’d be little left over to fund anything else. The 18th ammendment effectively places roads above all other spending, and I’m not sure that’s wise considering the state of our school system.
Matt the Engineer
(meant as a reply to the DayLily comment directly above)
On the other hand, doesn’t the ECONOMY run more efficiently when the ROADS run efficiently? Isn’t it easier to get to school, to work, to the police station, etc, when there’s a smooth inter-connected system of roads? Even if it’s to catch the bus that uses those roads, or to ride in the bike lane on those roads?
Matt the Engineer
These are all great arguments for spending money on roads. But not for spending money on roads above all things. If we hit a true funding crisis, we need the flexibility to hold off on spending much on roads for a year or two if needed. Otherwise we let other services fail while we spend full-speed-ahead on roads.
Good luck fighting that beast.
You’d be much better off following the aikido guidance to use your opponent’s momentum against him: write and run an initiative to clarify the matter by making it sacrosanct, holy of holies that the taxes on motor fuels used for motor vehicles can ONLY be used for roadways (in other words, enshrine in law what everyone already thinks the law says).
But slip in the killer: while making gas taxes for roads only sacred, so add language to ensure that gas taxes AND ONLY gas taxes support roads. Which is also the common (wrong) understanding.
Presto … You have an environmentally smart initiative that you can sell as “keep the dirty fracking hippies away from our roads” AND that will be popular with folks who hate property taxes, and that most people will think changes nothing.
Defeating you will require the road gang to come out and tell the public that the bs they’ve been peddling all these years (that gas taxes pay for roads) is just that … BS. So we win either way.
@ Matt the Engineer (and everybody else),
Maybe that’s why there’s this (purposeful) loophole that Eric de Place seems to have uncovered. Perhaps the loophole is meant to be applied to emergency funding?…
Is there a definition of “highway purposes” in the law? Seems like pedestrian and cycling infrastructure could be classed as such if lawmakers were so inclined.
Have you persued “nor does it include dyed special fuel” in 82.38? Dyed diesel fuel marks whether road tax has been paid. The diesel for home furnaces and construction equipment doesn’t pay road taxes. I think dyed means that it didn’t pay tax, but check that. Does this clause lean things one way or another?