Tuesday, January 4, 2011

ATA Files Brief With Ninth Circuit in Los Angeles Truck Program Suit

The American Trucking Associations has filed its arguments with a federal appeals panel in the ongoing litigation over portions of the Port of Los Angeles clean truck program.

The ATA, which represents more than 37,000 trucking firms nationwide, first filed suit against the port in July 2008 arguing that portions of the clean truck program violate the Supremacy Clause of the U.S. Constitution and federal interstate commerce regulations.

In its filing with the Ninth Circuit Court of Appeals, the ATA reiterated its original arguments and asked the appellate panel to overturn a September 2010 lower court ruling that found while portions of the port truck program did violate federal law, the port was exempt from the federal regulations.

District Court Judge Christina Snyder based her September 15, 2010 ruling in favor of the port on the concept of market participation. Judge Snyder found that the port, through its truck program, is operating as a participant in the local port drayage market and not simply as a regulatory agency. As a market participant, said Judge Snyder, the port is exempt from the cited federal regulations under federal preemption guidelines.

In its filing with the Ninth Circuit, the ATA argued that Judge Snyder erroneously relied on the market participation concept and that because the port does not contract any drayage service, it is not a participant in the drayage industry and therefore not exempt from federal regulation. The ATA filing also casts the port in the role of a regulatory entity, not as a commercial participant in the drayage industry as Judge Snyder ruled.

Portions of the truck program had been enjoined by the lower court since the first days of the litigation and Judge Snyder agreed with an ATA motion in mid-September 2010 to reinstate the injunction while her ruling is under appeal to the Ninth Circuit. In her reinstatement ruling she said that while confident of her earlier ruling in favor of the truck program, she recognized that "the interpretation and the application of the market participant doctrine in this case presents substantial and novel legal questions."

She also determined that the trucking industry was likely to suffer "irreparable harm" if the employee-only mandate was allowed to be implemented by the port and was later overturned.

The original ATA suit centers around a Los Angeles port truck program that took effect in October 2008 requiring port-servicing drayage firms to sign so-called concession agreements to gain access to port terminals. Firms without such an access license are barred from entering port facilities. The truck plan was originally conceived by the port (along with neighboring Port of Long Beach) as a means to bar older polluting trucks and force port-servicing trucking firms to use newer and cleaner burning vehicles, thereby cutting port-generated diesel emissions.

However, Los Angeles port officials included non-environmental criteria in the concession agreements, such as financial, maintenance, insurance, safety, parking and labor criteria. Critics of the truck program's non-environmental components, such as the employee-mandate, have accused the port of engaging in social engineering above and beyond their role as a governmental entity.

The Port of Long Beach, which helped develop the truck plan and was a defendant in the original ATA lawsuit, reached a court-approved settlement with the ATA in 2009 that allowed the Long Beach port to implement all of the environmental aspects of the truck plan, as well as most of the non-environmental aspects. The Long Beach version of the truck plan never called for an employee-only mandate.

The litigation has drawn national attention as a potential precedent setting case that could either reinforce federal supremacy over interstate trucking or set the stage for other ports to set their own local trucking regulations. Numerous ports across the nation are either in the process of implementing or developing trucking programs similar to the Los Angeles program.

The port is scheduled to file its brief with the appellate panel by January 31 and the optional ATA reply brief is due within 14 days after service of the port brief.
The Ninth Circuit stated that after the briefings are complete, the case "shall be calendared as soon as possible.”