Appeals Court Remands Port Concession Injunction

The U.S. Court of Appeals for the Ninth Circuit ruled in favor of the American Trucking Associations (ATA) on March 20 in its lawsuit seeking an injunction against the Ports of Los Angeles and Long Beach Concession Plans.

The three-judge panel remanded the case to the U.S. District Court and indicated that the judge should grant the ATA an injunction against all or part of the Concession Plans.

"In short, motor carriers should not be required to adhere to the various unconstitutional provisions in the Ports' (concession) agreements, and are likely to suffer irrevocably if forced to do that or give up their businesses," the court's opinion said. ATA had not challenged the ports' Clean Truck Program, which bans older trucks and uses a container fee to subsidize the purchase of newer, cleaner trucks.

"We are extremely pleased with the decision," says Robert Digges Jr., ATA vice president and chief counsel. "The judges understood that most of the elements of the plans are not about safety, but rather are a regulatory effort by the Ports to create what they believe would be a more efficient drayage system."

As of Oct. 1, 2008, any motor carrier out of compliance with a port's concession agreement had been barred from entering that port, a situation that caused motor carriers to suffer both short- and long-term capital losses and injuries to business goodwill.

In response to the decision, the Port of Long Beach issued this statement: "The decision does not change the legal status of our Clean Trucks Program or any other requirements currently in effect at the Port," said Richard D. Steinke, executive director of the Port of Long Beach. "The Port will continue to study the decision and appropriate next steps of the Court of Appeals and anticipates that further proceedings will be held promptly before the District Court."

The Court of Appeal's instructions to the District Court made clear that many elements of the Concession Plans must be enjoined but leaves it to the District Court as to whether the entire Concession Plans should be halted. The Court of Appeals indicated one aspect that must be enjoined is the Port of Los Angeles' ban on owner-operators. "That requirement is dead," said Curtis Whalen, executive director of the Intermodal Motor Carrier Conference (IMCC) of the ATA. The Port of Long Beach Concession Plan did not ban owner-operators.

Los Angeles Mayor Antonio Villaraigosa said "The City of Los Angeles is pleased that the centerpiece components of the Clean Truck Program that are currently in effect — i.e., the dirty truck ban and clean truck fee — remain intact for the benefit of thousands of Southern Californians who are already breathing cleaner air less than six months after the Clean Truck Program’s implementation.

The Clean Truck Program is a comprehensive environmental, safety, and security initiative. On its October 1, 2008, launch date, the program banned trucks built before 1989 from hauling cargo in and out of port terminals.

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