The American Trucking Associations has filed the final round of written arguments with a federal appeals panel in its more than two-year-long litigation over portions of the Port of Los Angeles clean truck program.
The ATA filing with the Ninth Circuit Court of Appeals on Tuesday was a response to Los Angeles port briefs filed with the appeals court late last month. The ATA filed its original request for appeal with the court in early January.
The ATA, which represents more than 37,000 trucking firms nationwide, first filed suit in federal District Court against the port in July 2008, arguing that portions of the port's Clean Truck Program violate the Supremacy Clause of the US Constitution and federal laws governing interstate commerce.
The lower court ruled in favor of the port on Sept. 15, 2010, finding that while the portions of the port truck program under argument did violate federal law, the port was exempt from the federal regulations.
District Court Judge Christina Snyder's ruling hinged on the concept of market participation. Judge Snyder found that the port, through its truck program, was operating as a participant in the local port drayage market and not simply as a regulatory agency. As a market participant, Judge Snyder said, the port is exempt from the cited federal regulations under federal preemption guidelines.
In its original appeals filing, the ATA reiterated its original arguments from the lower court suit that the port is not a market participant and asked the appellate panel to overturn Judge Snyder's ruling.
The port's January 31 response filing with the appeals court argued that due to pressure from environmental and community groups, the port was unable to move forward with infrastructure development without addressing the issue of truck pollution. The truck plan, according to the filing, was a necessary action to protect and further the port's business interests. Because the port was acting to the furtherance of its commercial interests, the port was acting as a commercial enterprise, and thus a market participant – not a regulatory agency.
The ATA's Tuesday response to the port rebuttal argues that the port has built their case on two fallacious notions: first, that an overarching “market participant” doctrine overshadows both the federal preemption statute and interstate commerce laws; and, second, that the port was acting like a business when it attempted to regulate which drayage firms can and can not service the port.
The ATA contends that Judge Snyder erroneously relied on the market participation concept and that because the port does not contract any drayage service nor even own any trucks, it is not a participant in the drayage industry and therefore not exempt from federal regulation. The ATA filing also argues that simply by implementing the truck plan – which is regulatory in nature – the port is acting as a regulatory entity, not as a commercial participant in the drayage industry as Judge Snyder ruled.
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.
With all of the written briefings in hand, the Ninth Circuit will now appoint a three-judge panel to review the case. This panel will then issue a date for oral arguments to be heard.
The Ninth Circuit stated in January that after the briefings were complete, the case "shall be calendared as soon as possible.”
Friday, February 18, 2011
