Court sides with ATA on SoCal truck plan

Court sides with ATA on SoCal truck plan    The U.S. Court of Appeals for the Ninth Circuit has reversed a lower court and ruled in favor of the American Trucking Associations in a lawsuit seeking an injunction against the ports of Los Angeles and Long Beach concession plans for drayage trucking services.
   It sent the case back to U.S. District Judge Christina Snyder to consider the ATA’s request for an injunction halting the implementation of new rules that apply to truck drivers at the two ports.
   “We conclude that the concession agreements of both the ports will likely be found to be preempted in whole or in part,” said the Ninth Circuit in a unanimous decision handed down Friday.
   “The Port of Los Angeles concession agreement does overreach considerably more than does the Port of Long Beach concession agreement,” the court said. “The Los Angeles port's independent contractor phase-out provision is highly likely to be found preempted and enjoined.”
   But the court added that the plans of both ports are “likely to result in at least some irreparable harm to the motor carriers and, on balance, the district court abused its discretion when it denied a preliminary injunction as to significant parts of the agreements.”
   The Ninth Circuit said it would not entertain any petition for rehearing the case, and said the district court “shall proceed as quickly as possible so that ATA will not suffer unnecessary harm from any unconstitutional provisions.
   “While we have pointed to a number of provisions which may be invalid and cause irreparable harm, we, of course, leave it to the district court to decide the validity of each of those in the first instance and to decide the separability of each from the remainder of each concession agreement,” it added.
   “We are extremely pleased with the decision,” said Robert Digges Jr., ATA vice president and chief counsel. “The judges understood that most of the elements of the plans are not about safety, but rather are a regulatory effort by the ports to create what they believe would be a more efficient drayage system.”
   ATA said as of Oct. 1, 2008, any motor carrier out of compliance with a port's concession agreement had been barred from entering that port, a situation that the ATA said caused motor carriers to suffer both short and long-term capital losses and injuries to business goodwill.
   “The court clearly understood the plight of the motor carriers and the no-win situation that the concession plans present them; refuse to comply and lose their customers and possibly their businesses or comply and bear the costs of totally restructuring their business model,” Digges said.
   ATA said it had not challenged the ports' Clean Truck Program, which bans older trucks and uses a container fee to subsidize the purchase of newer, cleaner trucks.
   Los Angeles Mayor Antonio Villaraigosa said in a statement that the city was “pleased that the centerpiece components of the Clean Truck Program that are currently in effect — i.e., the dirty truck ban and clean truck fee — remain intact for the benefit of thousands of Southern Californians who are already breathing cleaner air less than six months after the Clean Truck Program's implementation.”
   He said the Ninth Circuit “does not challenge the truck ban schedule or truck fees that are helping us successfully battle this health crisis.'
   Coalition for Clean & Safe Ports, with 40 public health, environmental, community, labor and faith-based organizations as members, vowed “to use every legal and political option” to battle the ATA, saying it was “committed to the unaccountable market ideology that has created pollution and poverty at our nation's seaports.”
   The group said people working and living in or around the port “have breathed easier since the programs went into effect last October and that shelving any component would have dire impact on public health, safety and security.”
   Colleen Callahan of the American Lung Association of California said of the Clean Truck Program: 'Not only do public health advocates support it, economists agree it will boost the regional economy and help responsible companies compete at a time when we need it the most.'
   'This decision places in jeopardy the clean-air goals at the ports, as well as every port infrastructure expansion project that relies on clean trucks,' said attorney David Pettit of the Natural Resources Defense Council.
   NRDC argued, “It is imperative for trucking companies to assume the responsibility for owning green trucks because they are in the best position to maintain the cleanest-available technology, as underpaid 'independent' drivers lack the stability or capital to assume the burden.”
   Curtis Whalen, executive director of the Intermodal Motor Carrier Conference of the ATA, said a Port of Los Angeles' ban on owner-operators “is dead.” The ATA said the Port of Long Beach concession plan did not ban owner-operators.
   The court noted that one port study estimated that 85 percent of drayage drivers are independent contractors, rather than employees, and that ATA estimates that number as closer to 98 percent.
   Digges said ATA will work “expeditiously” with the district court to structure an injunction that implements the decision and protects the interests of the motor carrier industry.
   The ports' truck plan, which was originally supposed to begin on Oct. 1, aimed to significantly cut diesel emissions from trucks shuttling containers to and from their complexes. Under the plan to modernize the truck fleet, trucks built before 1989 are banned from the ports and older trucks are progressively phased out in the coming years until the entire fleet of 17,000 trucks has 2007 or newer engines.
   In February, the two ports began collecting a $35 per TEU (or $70 per typical 40-foot container) fee on loaded containers moved by trucks with 1989-2006 engines. Trucks with engines built in 2007 or later are exempt, and older trucks have been banned. The fees are being collected by PortCheck Inc., a not-for-profit company created by marine terminal operators to collect the clean truck fee, PortCheck said last month when the program began that about 8 percent of the trucks are exempt from the clean truck fee and that about 900 trucking companies had been approved, out of 14,000 in the drayage truck registry.
   The decision can be read here. ' Chris Dupin