The American Trucking Associations on Thursday, Oct. 8, filed its opening brief with the U.S. Court of Appeals for the Ninth Circuit in an effort to secure an injunction against the enforcement of the Ports of Los Angeles and Long Beach’s concession plans that went into effect Oct. 1. ATA says it believes the concession plans unlawfully re-regulate the port trucking industry to the detriment of motor carriers, shippers, businesses and consumers that depend on the products that are handled at those ports.
The Clean Truck Program, which went into effect Oct. 1, immediately banned more than 10 percent of port trucks — or 2,000 dirty-diesel trucks — from the Ports of Los Angeles and Long Beach. The CTP immediately banned trucks built before 1989, the first year of diesel pollution control, and by 2012, bars any truck that doesn’t meet the cleanest 2007 emissions standards. When fully implemented in 2012, the CTP aims to remove more than 16,000 diesel trucks from the roads and reduce harmful emissions by 80 percent.
As of Oct. 1, 598 companies had signed up to participate in the program, using more than 21,000 clean trucks to haul goods from the ports to the rest of the region. The CTP, which had set an initial goal of at least 10,000 trucks, is the centerpiece of Los Angeles Mayor Antonio Villaraigosa’s Clean Air Action Plan, which was adopted in November 2006 to clean up the ports of Los Angeles and Long Beach, the leading air polluters for the greater L.A. region.
ATA’s litigation focuses 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 says it is especially troubled by the Port of Los Angeles’ plan to ban independent contractors within five years.
The U.S. Court of Appeals for the Ninth Circuit on Sept. 24 had denied ATA’s request for an injunction to prevent the Port of Los Angeles’ concession program from going into operation on Oct. 1. 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.
U.S. District Court Judge Christina A. Snyder had ruled that the concession plans fell within the scope of what ordinarily would be pre-empted, but an express exception to pre-emption, the safety exception, protected the plans from pre-emption despite their interference with motor carriers’ rates, routes and services.
In the newly filed opening brief, ATA explained that most of the concession plans’ requirements do not affect safety and the few elements that do repeat the requirements of federal and state laws. ATA also argued that because the concession plans essentially re-regulate interstate trucking, they must be overturned even if some minor elements relate to truck safety.
Additionally, ATA contended that the court erred in its previous finding that motor carriers could avoid irreparable harm by succumbing to the illegal concession plans and seeking damages later. ATA explained that securing individual damages would be difficult if not impossible, and that forcing motor carriers to either accept the illegal terms of the concession plans or stop doing business in the ports was itself irreparable harm.
ATA says it supports the ports’ CTP and the replacement of older trucks, but does not support the concession plans. ATA says Amici briefs supporting its position will be filed by Oct. 15, and the ports’ response briefs are due Nov. 5. A decision could be issued by the court as early as late November, according to ATA.