Court decision: Ports can clean up trucks; drivers get left out

The port's 2008 clean truck program required motor carriers moving containers to and from the port to enter into concession agreements which set forth 14 requirements, including one that said within five years port drayage drivers must be employees of licensed motor carriers.

The American Trucking Associations (ATA) had challenged five provisions of the concession agreements that had been upheld by a district court, but the 9th Circuit, while affirming other parts of the lower court's decision, said it did not agree the employee driver requirement was legal.

It said the employee-driver provision was preempted by the Federal Aviation Administration Authorization Act (FAAA Act), which says a state or political subdivision of a state such as a port "may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier."

ATA hailed the decision. There was no immediate reaction from the port.

"By striking down the port’s unjustified ban on owner-operators, the court has upheld the rights of trucking companies to structure their businesses to maximize efficiency and productivity,” said Bill Graves, ATA president and chief executive officer. “By throwing out the ban, the court has ensured that competition, not government regulation, will establish motor carrier’s rates, routes, and services.

“This is a win for all involved; trucking companies; small business owner-operators; freight shippers; and ultimately average American consumers,” he added. “The historic gains in air quality at the port clearly show that the interests of clean air have been served without running independent contractors out of the port.”

Graves complained that the plan "was never about clean air, it was about promoting special interests of a few well-connected labor groups. Successful clean trucks plans in Long Beach, Seattle and the Ports of New York and New Jersey have shown you can improve air quality without forcing owner-operators out of your port.”

Patricia Castellanos, chair of the Coalition for Clean & Safe Ports, said "We are exploring options and will continue to vigorously pursue our efforts to ensure that port trucking companies nationwide are held to account for disguising their truck drivers as independent contractors. The L.A. Clean Truck Program must be able to proceed in its entirety in Southern California and as an environmental model for the nation.”

She said ATA "will stop at nothing to put profit before people and public health. While we are pleased by the court’s refusal to allow the ATA to completely shut down our port’s pioneering L.A. Clean Truck Program, cutting out a core component, if upheld, will have devastating consequences for working families and port communities plagued by dirty air and dead-end jobs. Furthermore, removing the employee provision destroys the opportunity for hundreds of small and large local businesses alike to grow and compete responsibly in the green economy."

Martin Schlageter, campaign director for the Coalition for Clean Air, added the decision "affirmed the authority of the ports to set standards on trucks and trucking companies. The inevitable transition to cleaner technology is underway."

He said his group, however, believes "the conditions of drivers are intertwined with the sustainability of the program and reliability of the trucks. The broken trucking system won’t be fully fixed until workforce conditions are stabilized and improved."

Schlageter noted "ports around the country should feel empowered by today’s decision to take control of their entrance gates and demand cleaner trucks and cleaner air."

While overturning the owner-operator ban, the court upheld other requirements that concessionaires:

• Demonstrate financial capability to perform their obligations.

• Are responsible for vehicle condition and safety and must ensure that "maintenance of all permitted trucks... is conducted in accordance with manufacturer’s instructions.”

• Submit plans for parking locations for all permitted trucks and ensure these trucks are “in compliance with parking restrictions by local municipalities."

• Post placards in permitted trucks when entering and leaving and on port property. The placards would include phone numbers for the public to report concerns regarding emissions, safety and compliance.

ATA said these were "comparatively minor regulatory port requirements," but ATA Chief Counsel Robert Digges said the group was evaluating the decision to decide "whether a further appeal is warranted. We firmly believe the other challenged provisions of the concession agreement should have been preempted as explained in a strong dissent" by Judge N.R. Smith.

Digges said "should we appeal, that dissent will be very helpful to our effort.”

The debate over the owner-operator ban has been charged.

Castellanos, for example, complained the ATA was a "backwards-looking Beltway lobby will stop at nothing to put profit before people and public health."

But in an article posted on the LA Weekly Web site yesterday, columnist Jill Stewart described the owner operator ban as L.A. Mayor Antonio Villaraigosa's "favor to the Teamsters -- a green-washing plan he sold as merely a wholesome effort to reduce emissions from old trucks" and complained Natural Resources Defense Council support was a "fig leaf for all this."

The entire decision can be read here [PDF].