ATA lawsuit to stop L.A.-area port truck plan proceeds

| Friday, January 23, 2009

Arguments between attorneys with the ATA and the ports of Los Angeles and Long Beach are scheduled to begin in early March over the twin ports’ Clean Truck Plan.

The American Trucking Association is seeking an injunction from the U.S. Court of Appeals for the 9th Circuit to stop the Clean Truck Plan from being implemented. It also seeks a reversal of a 2008 lower court ruling that affirmed the two ports’ right to implement the Clean Truck Plan.

The first oral argument is scheduled for March 4.

In a December filing, the motor carrier association argued that the district court made several errors, including:

  • Its reliance on an inapplicable safety exception to the concession plans is supported by the U.S. DOT, “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”;
  • Focusing its irreparable harm analysis on the harm suffered by motor carriers associated with complying with plans, rather than the harm visited up on motor carriers that refuse to comply with the concession agreements.

In addition, ATA asked the Court of Appeals to reverse and remand the district court’s denial of the preliminary injunction and order it to revisit its findings.

On Dec. 30, the ports responded, reasserting their authority and refuting several ATA points.

“To begin with, the Ports have independent authority to address safety and security issues,” the ports’ filing read. “The Los Angeles City Charter gives the Port of Los Angeles the power to ‘make and enforce all necessary rules and regulations governing the … operation and use of the Harbor District.”

The ports went on to disagree with the ATA’s claim that the Clean Truck Plan can be halted and a later version implemented with no harm to the ports.

“As the Chief of Operations for the Port of Los Angeles has testified, the concession contracts are critical to enhance port security concerning truck-borne threats and there is no effective alternative that the ports could implement should the concession contracts be enjoined.”

The arguments are only the latest in a flurry of legal activity concerning the twin ports’ ability to allow entry only to trucks licensed as concessionaires.

The twin ports of Los Angeles and Long Beach each have approved similar versions of a Clean Truck Plan, including bans on pre-1989 trucks that took effect on Oct. 1, and a phase-in of other older truck engine bans until all trucks are required to meet 2007 emissions standards by 2012.

Each port is requiring most drayage trucks to register and become licensed concessionaires for repeated port entry.

The Clean Truck Plan’s first provisions kicked in during October, when trucks with pre-1989 engines were banned from entering the twin ports.

The Federal Maritime Commission has launched multiple investigations into the two ports and their “Clean Truck” plans, including one asserting that the programs violate the Shipping Act.

OOIDA filed to be an intervener in the investigation that FMC has launched. A document related to the investigation is available here.

The two ports recently announced they will begin collecting clean truck fees on Feb. 18. The fee means each 20-foot cargo container will be charged $35.

– By Charlie Morasch, staff writer
charlie_morasch@landlinemag.com

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