The American Trucking Assns.’ (ATA) challenge to the concession plans in the Ports of Los Angeles and Long Beach’s Clean Truck Program was strengthened this week when the U.S. Dept. of Justice filed an amicus brief supporting parts of ATA’s argument.

Requirements for the Clean Truck Program include committing to using 100% employee drivers by 2013; using trucks for drayage that meet EPA 2007 heavy-duty truck emission standards; ensuring drivers and trucks comply with driver training, vehicle maintenance, inspections and driver hours standards, and registering drivers with the port’s drayage truck registry database while ensuring enrollment in the federal Transportation Worker Identification Credential (TWIC) program.

Claiming sections of the program unlawfully re-regulate the trucking industry, ATA filed a motion for a preliminary injunction on July 30, 2008, which was denied by the District Court for the Central District of California on September 9. The litigation is currently before the Ninth Circuit Court, as ATA appealed the district court’s decision.

According to the district court, ATA did not establish that its members would suffer irreparable harm if a preliminary injunction was not granted, stating that most of the costs its members would incur were monetary and not irreparable while the non-monetary harms were not substantial and would not be implemented immediately.

In its brief, the Dept. of Justice claimed “the concession agreements directly relate to motor carriers’ routes and services and therefore fall within the FAAAA’s (Federal Aviation Administration Authorization Act) preemptive scope…the district court ignored the plain language of the statute and Supreme Court precedent by concluding that this exception extended beyond motor vehicle safety to more generalized public safety concerns.”

Calling the reading of the motor vehicle safety exception “unduly expansive,” the Dept. of Justice said the entire concession agreement should not be preempted, and each concession agreement requirement should be scrutinized separately, as some are “plainly unconnected with safety generally, let alone with motor vehicle safety,” noting for example the Port of Los Angeles’ ban on independent contractor drivers.

“The concessions are essentially licenses to provide motor carrier services within the Ports,” the brief said. “To enter the Ports - and thus to access any routes or provide any services to customers within the Ports - carriers must agree to comply fully with the multifarious requirements of the concession agreements. Such state or local licensing schemes are inconsistent with the FAAAA’s deregulation of motor carriers’services.”

ATA president & CEO Bill Graves said that the federal government’s participation in the case shows how important it is for the motor carrier industry to be free of “burdensome” local regulations, while reiterating that the trucking lobby has no problems with the environmental programs and goals of the program, just the economic regulation contained in the concession plans.

“Congress understood that motor carriers cannot efficiently compete if states and localities are free to impose burdensome regulatory regimes controlling their operations,” Graves said. “And Congress also noted that when motor carriers compete efficiently, consumers benefit.”

In addition to the Justice Department, ATA was also supported by amicus filings by the National Industrial Transportation League (NITL) and the National Association of Waterfront Employers (NAWE). NITL said in its statement that the concession plans “interfere with federal regulatory systems designed to enhance our nation’s international and interstate commerce by imposing artificial barriers to and reducing competition among drayage operators.”

The Ports of Los Angeles and Long Beach continue to support the program’s merits. “This is just another unfortunate attempt by the American Trucking Assns. to stop a pioneering jobs creation and environmental program that has broad support by both the business and environmental communities here in Los Angeles,” the Port of Los Angeles said in a statement.

“ATA filed its appeal brief with the U.S. Court of Appeals on October 8, 2008 and the responsive briefs from the Ports and from the intervenor environmental groups are due to be filed on November 5, 2008,” the Port continued. “In its brief, the Port intends to respond fully to the ATA and to various parties who have submitted amicus briefs. The Port is confident that the Court of Appeals will conclude that the District Court appropriately upheld the Port’s right to continue the Clean Trucks Program. A decision in the appeal is not expected before Spring, 2009.”

Contacted by FleetOwner, The Port of Los Angeles declined additional comment beyond their original statement, while The Port of Long Beach has yet to respond.

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