ATA seeks review of judge's denial for injunction to stop port plan

The Ports of Los Angeles and Long Beach are seeking to ban trucks that might pollute the air.

The Trucker News Services

9/11/2008

ARLINGTON, Va. — The American Trucking Associations (ATA) will seek immediate review of U.S. District Judge Christina Snyder’s denial Wednesday of ATA’s request for a preliminary injunction against the Ports of Los Angeles and Long Beach to halt implementation of their concession agreements.

The decision was based on pleadings and a Sept. 8 hearing in United States District Court for the Central District of California, during which ATA Deputy Chief Counsel Robert Digges Jr. reiterated that ATA opposes the concession agreements but supports the ports’ Clean Truck Programs, including the phased retirement of older trucks from the port operations and their replacement with newer, cleaner vehicles. The Port concession agreements that ATA opposes are simply not needed to meet the Ports environmental goals.

Snyder’s decision was in great part favorable to ATA’s position in the case.

The court acknowledged that the ATA prevailed on most of the points presented.

First, the court acknowledged that the ATA would likely succeed on the argument that the Ports’ Clean Truck Programs are preempted by federal law.

The court noted, in agreeing with ATA and in following clear Supreme Court guidance on this topic issued earlier this year in Rowe v. New Hampshire Motor Transportation. Association., that on the key issue of preemption “there is a significant likelihood that [ATA] will succeed in showing that the concession agreements fall within the preemption provisions of” Federal Aviation Administration Authorization Act of 1994 (FAAA).

The court also determined that the ports’ argument that they are sovereign tidelands was without support.

In agreeing with ATA’s position on this issue the court stated that it “is not convinced that the fact that the Ports rest on sovereign tidelands renders them immune from preemption under the FAAA.” Similarly, with respect to the market participant argument presented by the ports, the court, in agreement with the ATA’s position, stated: “Given the problems associated with characterizing the concession agreements as ‘efficient procurement’ or ‘narrow’ in scope, there is significant likelihood that [ATA] will succeed in showing that the market participant exception to preemption does not apply in this case.”

However, the court, in an overbroad interpretation of the safety exception to FAAA preemption, sided with the ports and determined that the security aspects of the ports’ plans were sufficient to qualify the entire agreements as exempt from preemption.