Ocean cargo: Ports of LA/Long Beach still facing legal challenges

Patrick Burnson, Executive Editor -- Logistics Management, 10/10/2008

WASHINGTON—Many of the nation’s leading trucking companies and shipper associations are still not willing to make “concessions” to the Ports of Los Angeles and Long Beach over their newly-imposed rules banning independent owner-operators.

“It is social engineering at its worst,” said Clayton Boyce, a spokesman for the The American Trucking Associations (ATA). “The issue is not about clean air…it’s about changing the business model from free enterprise to one that union-based.”

In filing its opening brief earlier this week with the United States Court of Appeals for the Ninth Circuit, the ATA is seeking in to secure an injunction against the enforcement of the port’s “Concession Plans” that became effective Oct. 1.  ATA – along with the National Retail Federation, (NRF), believes the concession plans unlawfully re-regulate the port trucking industry to the detriment of motor carriers, shippers, businesses and consumers that depend on the products that are handled at those gateways.

Boyce added that a similar move is expected to be made at the Port of Oakland soon.

United States District Court Judge Christina A. Snyder earlier ruled that the concession plans fell within the scope of what would ordinarily be pre-empted, but an express exception to pre-emption, the safety exception, protected the plans from pre-emption despite their interference with motor carriers’ rates, routes and services.

In this opening brief, ATA explained that most of the concession plans’ requirements do not affect safety and the few elements that do repeat the requirements of federal and state laws.  ATA also argued that because the concession plans essentially re-regulate interstate trucking, they must be overturned even if some minor elements relate to truck safety.

Additionally, ATA contended that the court erred in its previous finding that motor carriers could avoid irreparable harm by succumbing to the illegal concession plans and seeking damages later.  ATA explained that securing individual damages would be difficult if not impossible, and that forcing motor carriers to either accept the illegal terms of the concession plans or stop doing business in the ports was itself irreparable harm.

“It’s important to remember that ATA supports the ports’ clean truck program,” added Boyce. “We endorse and support the replacement of older trucks, but we object to the concession plans’ illegal re-regulation of the trucking industry.”

ATA’s filing is available on its website. Amici briefs supporting ATA will be filed by Oct. 15, and the ports’ response briefs are due Nov. 5.  A decision could be issued by the court at early as late November.