Appeals court denies ATA’s bid to halt L.A. port’s concession program

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The U.S. Court of Appeals for the Ninth Circuit on Wednesday, Sept. 24, denied a request by the American Trucking Associations for an injunction to prevent the Port of Los Angeles’ Clean Truck Concession Program from going into operation on Oct. 1. The court ruled that the ATA “has failed to establish that it will be irreparably injured absent an injunction, or that the public interest lies in favor of granting an injunction.”

The L.A. port says the court’s ruling removes the last potential legal impediment to the concession program commencing as scheduled. “Los Angeles has said enough is enough,” said Los Angeles Mayor Antonio Villaraigosa. “When 1,200 lives are cut short every year by toxic emissions coming from operators at the port, we have a moral mandate to act to clean up the air, and today’s ruling allows us to do just that.”

The port says its CTP, including the requirement that trucking firms enter into a concession agreement, will take effect on Oct. 1 as previously scheduled. ATA says it will continue to have an appeal pending from District Judge Christina Snyder’s denial of a preliminary injunction.

However, the appeals court, at the same time that it denied ATA’s request for an injunction, also denied ATA’s motion to expedite its appeal. According to the L.A. port, it appears unlikely that ATA’s appeal will be decided until after completion of full briefing and argument in 2009.

ATA was appealing a federal judge’s decision earlier this month to reject a preliminary injunction against the concession agreements that the Port of Los Angeles and Port of Long Beach planned to implement this month.

Judge Snyder had agreed with the ports that the security aspects of the ports’ plans were sufficient to qualify the agreements as meeting the safety exception to federal preemption. ATA called the safety and security issue “a red herring,” but the association did win some points in Judge Snyder’s decision. For example, Judge Snyder had suggested that ATA would win on its preemption arguments on all grounds other than safety and security. And the court had rejected the ports’ contention that the ports are sovereign tidelands immune to federal preemption.

The ports are slated to begin their CTP on Oct. 1. The program will immediately bar 1988 and older trucks from the ports, and truck engines must meet 2007 federal emissions standards by 2012. Also on Oct. 1, the port will begin assessing a $35 fee per 20-foot-long cargo container to fund a truck replacement financial assistance program.

ATA didn’t oppose those elements of the Clean Trucks Plan, but rather its litigation focused on the ports’ requirement to force carriers to sign concessionaire agreements with the ports. The association argued that the concessions would impose a broad range of operational requirements that recreate a regulatory environment comparable to state intrastate economic regulation, which is federally preempted. ATA also said it is especially troubled by the Port of Los Angeles’ plan to ban independent contractor drivers within five years.