ATA (American Trucking Association) goes to appeals court to stop SoCal ports’ truck plans
September 15, 2008 by SwizStick
Filed under Seafreight
Via American Shipper. Fresh on the heels of their rejection by the District Court last Tuesday, the ATA is seeking an “emergency injunction” against the LA and Long Beach ports’ truck plans:
The association, which represents more than 37,000 trucking firms nationwide, cited the impending Oct. 1 start of the ports’ truck plan in making the filing.
“As detailed in this emergency motion, ATA’s members will face immediate irreparable harm arising from forced changes to their business structure and unrecoverable loss of income if the order denying (ATA’s lower court injunction request) is not reversed prior to Oct. 1,” said the trade group in its brief filed late Friday.
The ATA, in the 24-page emergency motion, requests that the Ninth Circuit Court either issue an injunction pending a determination by an appeals panel or “an emergency briefing and hearing schedule that enables this Court to issue its determination on the merits no later than Sept. 30.”
Last Tuesday, District Court Judge Christina Snyder ruled that the ports of Long Beach and Los Angeles successfully proved that an access license, or concession agreement, portion of their trucking plan is exempt from the federal preemption argument made by the ATA in its lower court request.
“However, the court, in an overbroad interpretation of the safety exception to Federal Aviation Administration Authorization Act of 1994 (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,” said ATA attorneys Thursday in their filing to appeal the lower court decision.
Under the Ninth Circuit Court’s schedule presented to both sides after the filing Thursday, the ATA was given until Oct. 8 to submit its arguments and the ports were required to respond no later than 28 days later.
“Given that the concession plan requirements take effect Oct. 1, ATA members require emergency relief in the form of either an injunction or an accelerated schedule and decision,” said the ATA in its emergency motion filing on Friday.
Here’s the details on the District Court’s rejection of the ATA’s lawsuit against LA/Long Beach, also via American Shipper:
Snyder, while finding in favor of ATA’s argument that federal interstate commerce laws preempt the truck plan, based her finding on a so-called “safety exclusion” provision within the Federal Aviation Administration Authorization Act of 1984 (FAAA).
The Supremacy Clause of the U.S. Constitution provides that federal laws “shall be the supreme law of the land.” Thus, when state and federal law conflicts, federal law trumps, or preempts, the state law. Federal preemption occurs in three situations: when Congress enacts a statute that explicitly preempts state law; when a state law actually conflicts with federal law; or when Congress, in enacting a federal law, left no room for state regulation in that field.
In its request for an injunction and its full suit against the ports, ATA argued that portions of the ports’ truck plan violated the FAAA. The act includes a federal statue regarding preemption that states, “A state, political subdivision of a state, or political authority of two or more states may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier.”
Because the Long Beach and Los Angeles port authorities derive their trustee powers from the state of California, the law considers them political subdivisions of the state.
ATA argued in its injunction request that the ports’ truck plan component requiring motor carriers to obtain ports-issued access licenses, called concession agreements, violate the “price, route and services” portion of the FAAA preemption statue.
Snyder agreed: “There is a significant likelihood that (ATA) will succeed in (the full suit) showing that the concession agreements fall within the preemption provision of the FAAA. Indeed, (the ports) do not seem to dispute this, but instead argue … that they are exempted from preemption.”
Case law has provided for several potential exemptions to federal preemption. The ports argued against the injunction claiming they met the standard for three such exemptions.
Snyder wrote, “Although the court finds that the concession agreements likely fall outside of the first two exceptions, (ATA) is not likely to succeed in showing that the concession agreements are not exempted from preemption under the safety exception.”
The FAAA, while providing a broad preemption statute, also contains an express exception to preemption based on safety issues. This exception provides that the FAAA preemption provision “shall not restrict the safety regulatory authority of a state with respect to motor vehicles … ”
Snyder pointed out that although there is little case law interpreting the limits of the safety exemption of federal preemption, the U.S. Supreme Court has ruled that the safety exception only applies if a statue, regulation or provision is genuinely responsive to public safety concerns.
“A regulation does not fall under the safety exception if it is an economic regulation under the guise of a public safety regulation,” Snyder wrote.
The judge, citing a previous precedent, also said criterion for applying the safety exception is “whether the purpose and intent of the body passing the law at issue, whether state or municipality, was truly safety.”
The ports argued that the access licenses requirement of the truck plan was “intended in some substantial measure to achieve enhanced port safety and to address gaps in port security.”
No, the “access licenses requirement” (concession agreements) are intended in substantial measure to kill the current owner-operator industry and allow possible future unionization of drivers forced to be employees of trucking companies.
In the meantime, some of the largest shippers in the U.S. aren’t waiting for the ATA to come and save the day. Companies like Target, Home Depot, Lowe’s, Dunavant, and others have banded together to form what they call the “Coalition for Responsible Transportation“. In essence, it’s a voluntary effort aimed at supporting the owner-operator drayage model by members agreeing to pay more for local drayage moves to fund the replacement of older equipment in line with the ports’ Clean Truck Programs. Their hope, it seems, is that by proving that the private sector can accomplish the same goals as government legislation that some kind of middle ground or acceptance of the owner-operator model will be reached, Time will tell if it works. Meanwhile, we’ll see if the ATA is successful in their appeal.
Breaking News: Court rules against LA/Long Beach Clean Truck Program | Third Party Logistics News - 3PLwire on Fri, 20th Mar 2009 4:58 pm
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