A House Democrat from New York has for the second time introduced legislation that would change federal commerce law language and allow local government entities like port authorities to regulate interstate trucking.
Rep. Jerrold Nadler on Wednesday introduced the Clean Ports Act of 2011, which seeks to allow ports nationwide to set their own local standards for truck emissions, business practices, and employee status. The goal is to curb emissions from port trucks.
“The Clean Ports Act represents a crucial modernization of federal law that would dramatically improve the quality of air for the estimated 87 millions Americans who live and work near major container ports,” Nadler said. “It is indefensible that ports are being challenged [sic] from enforcing clean truck programs to replace highly polluting and outmoded diesel trucks."
Nadler is referring to litigation brought by the American Trucking Associations in 2008 against the Port of Los Angeles Clean Truck Program's access license scheme. Trucking firms wishing to obtain an access license and continue working at the port were required to agree to a laundry list of port-developed criteria, including a mandate that trucking firms use only per-hour employees instead of the more prevalent per-load drivers.
The ATA argued in federal District Court that while the group did not oppose the purely environmental portions of the truck plans such as the incremental model year bans on older trucks, the access license portions violated federal law.
Specifically, the Supremacy Clause of the United States Constitution and the Federal Aviation Administration Authorization Act of 1994.
The Supremacy Clause of the US Constitution provides that federal laws “shall be the supreme law of the land.” Thus, when state and federal law conflicts, federal law trumps – or preempts – the state law.
The FAAAA, also known as F4A, includes a federal statue regarding preemption that states, “A State, political subdivision of a State, or political authority of two or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier.”
While agreeing with the ATA that portions of the access license scheme violates federal law, a federal district judge ruled in September 2010 that the port is exempt from application of the laws.
A federal appellate court is currently considering whether the lower court ruling in favor of the port was proper. A decision is expected before summer.
Nadler's Clean Ports Act, which is nearly identical to a bill he introduced last year, would essentially codify the lower court decision that the ports are exempt. It seeks to change the F4A language, thereby reversing trucking deregulation that was put into effect in the 1980s and 1990s.
Ironically, the truck program in Los Angeles, despite having portions of the access license scheme enjoined almost since the truck program's implementation, has still by all accounts been highly successful in its original goal to reduce truck emissions. The program, along with a similar program at the Port of Long Beach and a more than $650 million fleet modernization investment by the private trucking industry, are credited with eliminating more than 80 percent of the primary diesel pollutants generated by port drayage in Southern California.
Thursday, February 10, 2011
