While the two ports' plans differ somewhat, both will limit access to the ports to only those trucking companies that have entered into concession contracts approved by the port program administrator. The ports will now be able to hold those companies accountable for maintaining trucks and employing properly credentialed drivers. That, in turn, will ensure a sufficient supply of drivers, improve truck safety and maintenance while lowering emissions, enhance port security and reduce the negative impacts that drayage services have on communities near the port, according to port officials.
(See "Port of Long Beach Adopts Clean Truck Regs," 2/25/2008, and "LA Port to Ban Owner-Operators," 5/19/2008.)
ATA alleges that the concession plans impose a broad range of operational requirements that create a regulatory environment very similar to state intrastate economic regulation. The association says the plans will result in far fewer trucking companies being able to service the ports, reducing competition.
"We firmly believe that these concession programs unlawfully re-regulate the port trucking industry to the detriment of motor carriers, shippers, and the businesses and consumers that depend on the products that are handled at those ports," said ATA President and CEO Bill Graves. "We are particularly concerned with the Port of Los Angeles' concession requirement that will lead to a complete ban of the use of independent contractor/owner operator drivers in servicing that port's operations within five years. That requirement, which has nothing to do with the clean air goals of the ports' Clean Truck Program, threatens a well-established trucking industry operational practice that provides efficiencies and the flexibility needed for the trucking industry to effectively serve our customers."
Graves emphasized that the litigation is not aimed at and should not interfere with the ports' clean air efforts. "Despite the additional costs that our industry will incur, we strongly support the ports' efforts to reduce truck emissions and our lawsuit does not challenge any aspect of those efforts," he said.
The Coalition for Clean & Safe Ports doesn't see it that way. In a statement released in response to the ATA's action, Reverend Mary Jo Bradshaw blasted that association, saying, "The American Trucking Association's action today proves that their claim to share the goal of port clean-up has always been disingenuous, empty rhetoric. Southern Californians are literally dying for clean air - not for a pair of sneakers that cost a nickel less.... How dare the nation's largest trucking lobby bully its way in our backyard. For too long the companies have been making a killing off of goods movement, while we live with the consequences of the poisonous air they create.
"The ports, as property owners, have every right to establish rules for doing business, and it's about time they did - real people do in fact die from port pollution," Bradshaw said. "Diesel from old, dirty rigs causes soaring rates of asthma, cancer, cardiac arrest and respiratory illness, and it needlessly kills two residents of my community each and every week."
In its filing, ATA specifically asserts that the ports' actions violate the federal statutory provision (49 U.S.C. § 14501) which prohibits states or their political subdivisions from enacting or enforcing a legal requirement that is "related to a price, route, or service of any motor carrier." The filing points to a host of regulatory requirements (e.g. submission of truck-maintenance, safety and parking plans; equipment marking and tracking; financial oversight; routing mandates; and periodic reviews and audits) that will dramatically affect a motor carrier's operations at the ports in terms of price, routes, and services.
The filing also relies heavily on the United States Supreme Court's recent unanimous ruling interpreting that federal preemption provision. Rowe v. New Hampshire Motor Transport Ass'n, 128 S.Ct. 989, 995 (2008). Citing language in that case, the trucking industry papers argue that laws like the Concession Plans that substitute "governmental commands for 'competitive market forces' in determining the services that a motor carrier will provide" are preempted.