The American Trucking Associations on Friday, Dec. 19, filed its reply brief in the Ninth Circuit Court of Appeals in its effort to secure an injunction against the enforcement of the ports’ concession plans. ATA says the filing completes the briefing process and positions the case for oral argument and/or a final decision by the court on the injunction request.
ATA’s litigation focuses on the ports’ requirement to force carriers to sign concessionaire agreements with the ports. The association argues 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.
In its reply brief, ATA asserts that:
The District Court committed reversible error by extending the narrow motor vehicle safety exception to the Federal Aviation Administration Authorization Act rates, routes and services preemption to generalized port safety and security measures, and that such a broad application of the exception is directly contrary to the U.S. Supreme Court’s holding in Rowe v. New Hampshire Motor Transport Ass’n, 128 S.Ct. 989 (2008);
The inapplicability of the safety exception to the concession plans is strongly supported by the brief of the U.S. Department of Transportation, whose view is entitled to great deference because it is the federal agency entrusted with the primary authority to apply and enforce the preemption provision;
The District Court committed legal error by focusing its irreparable harm analysis on the harm suffered by motor carriers associated with complying with plans, rather than harm (complete loss of business) visited upon motor carriers that refuse to comply with the unlawful concession agreements;
The District Court also erred when it found that an injunction would harm the ports’ environmental and security efforts because those elements of the Clean Trucks Program would not be impacted by an injunction of the concession plans: and
ATA asked the Appeals Court to reverse and remand to the District Court’s denial of the preliminary injunction and order it to revisit its findings in light of the correct legal standards and further factual developments since the September District Court hearing.
ATA isn’t challenging other elements of the CTP that went into effect Oct. 1. The program immediately banned trucks built before 1989 – more than 10 percent of port trucks as of Oct. 1 – and requires that all trucks meet 2007 emissions standards by 2012. With the courts refusing to block the concession agreements initially, 598 companies had signed up as of Oct. 1 to participate in the concession program.
