Judge Blocks Calif. Owner-Operator Ban

This story appears in the May 4 print edition of Transport Topics.

A federal judge last week issued a preliminary injunction blocking many of the provisions in the clean trucks plans of the Ports of Los Angeles and Long Beach, including the controversial ban on independent drayage owner-operators at Los Angeles.

While the injunction, which is effective immediately, blocks the ban on owner-operators at least until a hearing on a permanent injunction, it leaves intact the plans’ emissions-related features, a ban on older trucks and a container fee designed to help fund replacement vehicles.

In a case that a federal appeals court sent back to her for reconsideration in March, District Court Judge Christina Snyder ruled

April 28 that some of the plans’ concession provisions probably are unconstitutional because federal law pre-empts local jurisdictions from enacting laws or regulations that affect the “price, route, or service” of motor carriers.

“The court finds that the provisions of the concession agreements likely relate to ‘price, route, or service’ of a motor carrier,” Snyder said in her ruling. She said the Federal Aviation Authorization Act of 1994 supersedes local laws.

Snyder granted a preliminary injunction against seven of the concession requirements. She said those provisions have no relation to motor carrier safety or port security and “place an undue burden on and against the right of plaintiff motor carriers to engage in interstate commerce.”

In addition to enjoining the Los Angeles port’s plan to allow only company drivers to work drayage, Snyder also enjoined the ports from “implementing and enforcing” requirements that drayage operators file detailed financial statements, give hiring preference to experienced port drivers and not park on public streets.

Snyder also enjoined both ports’ requirements that carriers pay application fees and annual per-truck fees to be listed in the ports’ drayage truck registry, and a driver health insurance mandate contained in the Long Beach plan.

However, the judge let stand concession requirements that drayage operators maintain and present records regarding driver qualifications, driver training, vehicle maintenance, safety inspections, controlled substances and alcohol testing, and hours-of-service because they “provide a mechanism by which the ports can ensure that only qualified drivers and safe vehicles are operating drayage trucks at the ports.”

“With Judge Snyder’s ruling, the central, most important elements of the Port of Long Beach clean trucks program are intact,” said Richard Steinke, executive director of the Port of Long Beach. “We are still banning older trucks and collecting the clean truck fee to fund replacement trucks.”

The preliminary injunction stems from a lawsuit filed last year by American Trucking Associations that argued that the concession requirements of the ports’ diesel emissions plans “unlawfully re-regulated the federally deregulated trucking industry.”

Curtis Whalen, executive director of ATA’s Intermodal Motor Carrier Conference, said ATA was pleased with Snyder’s decision.

The appeals court “reversed and remanded” Snyder’s September 2008 denial of a temporary injunction and ordered her to reconsider using appeals court guidelines.

“She sort of went down the same list that the court of appeals agreed she’d made a mistake on — and told her to fix it,” Whalen said.

“We have always argued that the environmental aspects of this are not impacted by our lawsuit — and indeed they are not,” Whalen said. “We’re on our way to stopping all of the things that are certainly most egregious until we can argue this on the merits.”

Snyder has scheduled the case for trial on Dec. 15.

“We are pleased that the heart of the clean truck program is in place, and we’re moving full steam ahead with removing dirty diesel trucks from our communities and harmful pollutants from our air,” said Los Angeles Mayor Antonio Villaraigosa. “We look forward to our day in court where we will show the overwhelmingly success of the entire program and why it is needed to ensure long-term success.”

Whalen said that because the Port of Los Angeles employee-only driver provision was to be phased-in, carriers probably have not yet changed their business operations to comply.

“No one that we know is lining up to hire employees at this stage,” Whalen said. “They may be hiring some, but the requirement under the concession agreement is that by the end of 2009, 20% of all your moves had to be with employee drivers. But an injunction obviously stops that in its tracks.”

Chuck Mack, director of the Teamsters Union Port Division, said the ruling revealed that the courts are “completely out of touch.”

The employee-driver mandate, which would allow drivers to join a union, has been supported by the Teamsters union.

The preliminary injunction is the latest development in attempts by the ports to implement an unprecedented emissions-reduction plan that in October began with a ban on all pre-1989 trucks. The plan by 2012 will require all trucks to at least meet 2007 standards in an attempt to reduce pollution by 80%.