ATA seeks review of court’s denial of port challenge

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The American Trucking Associations announced Wednesday, Sept. 10, that it will seek immediate review of U.S. District Judge Christina Snyder’s denial earlier in the day of ATA’s request for a preliminary injunction against the Ports of Los Angeles and Long Beach to halt implementation of their concession agreements.

“The court’s decision is an important milestone in the implementation of the landmark Clean Trucks Program,” said Los Angeles Mayor Antonio Villaraigosa. “This moves us one step closer to cleaner air and a safer Port for all Los Angeles area residents. Judge Snyder recognized the legitimate environmental and public safety concerns that the Port is addressing in the Clean Truck Program.”

The decision was based on pleadings and a hearing Monday, Sept. 8, in U.S. District Court for the Central District of California, during which ATA Deputy Chief Counsel Robert Digges Jr. reiterated that ATA opposes the concession agreements but supports the ports’ Clean Truck Programs, including the phased retirement of older trucks from the port operations and their replacement with newer, cleaner vehicles. ATA says the port concession agreements that it opposes simply are not needed to meet the ports’ environmental goals.

“A concession-based trucking system is central to the sustainability of the Clean Truck Program and critical in our efforts to aggressively clean the air and operate a safe, secure port,” said Geraldine Knatz, Port of Los Angeles executive director. “This ruling, and our growing list of concession applicants, puts us in a good position for a strong program start.”

ATA says Judge Snyder’s decision was in great part favorable to its position in the case. The Court acknowledged that ATA prevailed on most of the points presented. First, the Court acknowledged that ATA likely would succeed on the argument that the ports’ Clean Truck Programs are preempted by federal law. The court noted, in agreeing with ATA and in following clear Supreme Court guidance on this topic issued earlier this year in Rowe v. New Hampshire Motor Transp. Ass’n., that on the key issue of preemption, “there is a significant likelihood that [ATA] will succeed in showing that the concession agreements fall within the preemption provisions of” Federal Aviation Administration Authorization Act of 1994 (FAAA).

The Court also determined that the ports’ argument that they are sovereign tidelands was without support. In agreeing with ATA’s position on this issue, the Court stated that it “is not convinced that the fact that the ports rest on sovereign tidelands renders them immune from preemption under the FAAA.” Similarly, with respect to the market participant argument presented by the ports, the Court — in agreement with ATA’s position — stated: “Given the problems associated with characterizing the concession agreements as ‘efficient procurement’ or ‘narrow’ in scope, there is significant likelihood that [ATA] will succeed in showing that the market participant exception to preemption does not apply in this case.”

However, the court, in an overbroad interpretation of the safety exception to FAAA preemption, sided with the ports and determined that the security aspects of the ports’ plans were sufficient to qualify the entire agreements as exempt from preemption. At the hearing, ATA vigorously contested the Court’s interpretation of the safety exception and alerted the Court to the fact that the safety exception could not be read so broadly as to swallow the rule of preemption. As noted by ATA, the security protocols mandated under the TWIC program are a key element of national port security and are supported by ATA. Further, ATA noted that such a broad definition of “safety” that includes all aspects of “security” was not in line with congressional intent on the safety exception. ATA says the ports’ efforts to support the concession agreements with the newly minted “security” exception is unsupportable and will be challenged as prompt review of the Court’s decision is pursued.

ATA says it is in full support of the ports’ environmental and security goals and supports the Oct. 1 implementation of the elements of the Clean Truck Program necessary to address those goals, including the ban of pre-1989 trucks and the clean truck fee. Unfortunately, ATA says it is clear that the ports are now in no position to put in place the systems needed to collect the ports’ clean truck fee and administer the ban on pre-1989 trucks by the Oct. 1 program startup date.

In a detailed letter to the ports, the Secretary of the Marine Terminal Operators Agreement noted that the ports’ failure to timely develop and populate the Drayage Truck Registry, which will provide the individual truck data necessary to administer the program, makes it impossible for the Marine Terminal Operators to implement the program. The terminal operators warned the ports that “attempting to implement a program of this type without adequate preparation, testing and outreach could result in long truck lines at terminal gates, decreased productivity and dissatisfaction among truckers, ocean carriers and the shipping public.” To avoid these problems, the operators suggested that collection of the clean truck fee be postponed until Jan. 1 and that the ban of pre-1989 trucks be delayed until at least Nov. 1, 2009, and begun then only if the Drayage Truck Registry was fully in place.

ATA says the inability of the ports to put in place even the uncontested elements of its Clean Truck Program underscores the current disarray at the ports, and it further shows that the ports’ focus on the unnecessary and burdensome concession plans is distracting them from their true environmental goals.