Justice Department Backs ATA in Effort to Block Ports’ Plans
By Eric Miller, Staff Reporter
This story appears in the Oct. 27 print edition of Transport Topics.
The U.S. Department of Justice last week backed American Trucking Associations’ attempt to block concession requirements included in the clean-trucks plans adopted by the Ports of Los Angeles and Long Beach, Calif.
DOJ attorneys said in an Oct. 20 friend-of-the-court filing with the 9th U.S. Circuit Court of Appeals they agreed with ATA that the ports’ plans represented an improper attempt by local officials to regulate the trucking industry. In particular, the department said it opposed Los Angeles’ ban on drayage owner-operators.
The Justice Department brief said federal law preempts state and local governments from regulating the trucking industry and called the concession agreements by the two ports “a matter of critical concern to the federal government.”
“The challenged concession agreements essentially impose licensing requirements on motor carriers seeking to provide drayage services to those customers within the ports,” the DOJ brief said. “As such, the concession agreements directly relate to motor carriers’ routes and services and therefore fall within the [Federal Aviation Administration Authorization Act’s] preemptive scope.”
The 1994 FAA Authorization Act reaffirmed the U.S. Department of Transportation’s authority to regulate interstate transportation.
Both the DOJ and ATA said that while they do not oppose the ports’ efforts to reduce diesel emissions, they don’t agree on some provisions contained in the concession requirements accompanying the clean-trucks programs.
The federal government’s interest in the ports’ concession requirements was seen as strengthening ATA’s arguments in the lawsuit, which was filed in U.S. District Court in Los Angeles on July 28.
“When the federal government comes in on your side on matters of federal transportation law, it takes it from only being an industry position,” said Rob Moseley, a longtime transportation attorney for the law firm of Smith Moore Leatherwood, Greenville, S.C. “It certainly gives a lot of weight to ATA’s position.”
Moseley said the government’s involvement in the civil case was significant because the DOJ only has enough resources to take on cases it feels represent significant issues.
Last month, the appeals court and a U.S. District judge in Los Angeles denied ATA’s motion for preliminary injunctions to stop the concession requirements before they went into effect on Oct. 1.
ATA then requested a preliminary injunction on separate legal grounds. A decision is not expected until early 2009.
Robert Digges, ATA’s deputy chief counsel, said DOJ attorneys “don’t often weigh in on cases like this, in my experience.”
“I think the 9th Circuit should give significant weight to the Justice Department’s view, since it represents the agency that Congress has authorized to implement the preemption provision,” Digges said.
Digges said ATA informed the DOJ last month about the case after the appeals court denied ATA’s request for a temporary injunction.
“We certainly brought this to their attention,” Digges said. “We thought they had a legitimate interest in it.”
“But we didn’t tell them what to write or what to do,” Digges added.
Moseley agreed that DOJ involvement in such cases is uncommon.
“But I think it’s consistent with the federal government’s need to preserve the interstate nature of the process,” Moseley said. “The federal government needs to step in and stop the states from compartmentalizing and fragmenting transportation law.”
Bill Graves, ATA chief executive officer, said in an Oct. 21 statement that he welcomed the federal government’s participation in the case. He said it underscores how important it is to ensure that the interstate motor carrier industry is free from a “patchwork of burdensome local regulations.”
“Congress understood that motor carriers cannot efficiently compete if states and localities are free to impose burdensome regulatory regimes controlling their operations,” Graves said. “And Congress also noted that when motor carriers compete efficiently, consumers benefit.”
In response, the Port of Los Angeles said Oct. 21 it “intends to respond fully to the ATA and to various parties who have submitted amicus briefs.”
“This is just another unfortunate attempt by the American Trucking Associations to stop a pioneering jobs-creation and environmental program that has broad support by both the business and environmental communities here in Los Angeles,” the port said in a statement.
