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U.S. Court of Appeals Rules in Favor of ATA in Lawsuit Against Ports

March 21, 2009

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The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the American Trucking Associations Friday in its lawsuit seeking an injunction against the Ports of Los Angeles and Long Beach Concession Plans.
Trucks entering the Port of Los Angeles.
Trucks entering the Port of Los Angeles.


The three-judge panel ruled unanimously to remand the case to the U.S. District Court and indicated that the judge should grant the ATA an injunction against all or part of the Concession Plans, according to the association.

"In short, motor carriers should not be required to adhere to the various unconstitutional provisions in the Ports' (concession) agreements, and are likely to suffer irrevocably if forced to do that or give up their businesses," the court's opinion said.

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ATA had not challenged the ports' Clean Truck Program, which bans older trucks and uses a container fee to subsidize the purchase of newer, cleaner trucks.

"We are extremely pleased with the decision," says Robert Digges Jr., ATA Vice President and Chief Counsel. "The judges understood that most of the elements of the Plans are not about safety, but rather are a regulatory effort by the Ports to create what they believe would be a more efficient drayage system."

As of Oct. 1, 2008, any motor carrier out of compliance with a Port's Concession agreement had been barred from entering that Port, a situation that caused motor carriers to suffer both short and long-term capital losses and injuries to business goodwill, ATA alleged.

The Court of Appeal's instructions to the District Court made clear that many elements of the Concession Plans must be enjoined, but leaves it to the District Court as to whether the entire Concession Plans should be halted, according to ATA.

The Court of Appeals indicated one aspect that must be enjoined is the Port of Los Angeles' ban on owner-operators. "That requirement is dead," said Curtis Whalen, executive director of the Intermodal Motor Carrier Conference of the ATA. The Port of Long Beach Concession Plan did not ban owner-operators.

The Court of Appeals decision said it would not entertain any petition for rehearing, although the Ports could appeal to the Supreme Court.

"Our Clean Truck Program is reducing toxic port truck pollution at an accelerated pace, and today's ruling by the Ninth Circuit Court of Appeals does not challenge the truck ban schedule or truck fees that are helping us successfully battle this health crisis," said Los Angeles Mayor Antonio Villaraigosa in a statement "We are committed to fighting this case because our Clean Truck Program is the most sustainable plan for ensuring a clean, safe and secure trucking system for the long-haul at the Port of Los Angeles."

The Coalition for Clean and Safe Ports, a group of 40 public health environmental, community, labor and faith-based organizations, issued a statement expressing outrage at the decision, and anger at the ATA for fighting the plans. "This is more dirty tricks from a shameless industry that has bullied its way around our backyard for too long," said Alicia Carrera, a Long Beach mother of three asthmatic children, in the coalition's statement.

"This decision places in jeopardy the clean-air goals at the ports, as well as every port infrastructure expansion project that relies on clean trucks," said attorney David Pettit of the Natural Resources Defense Council, which successfully sued the Port of Los Angeles in 2001 alongside community groups, forcing the harbor commissions of the San Pedro Bay to get serious about clean-up. "We are going to vigorously fight to protect these truck plans in court."

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