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April 15, 2013 1:50 AM, EDT

High Court to Hear Arguments Over L.A. ‘Clean Trucks’ Plan

By Eric Miller, Staff Reporter

This story appears in the April 15 print edition of Transport Topics.

Attorneys for American Trucking Associations and the Port of Los Angeles are scheduled to face off at the U.S. Supreme Court this week over the constitutionality of some requirements included in the port’s “clean truck” concession agreement with drayage operators.

The high court set the April 16 oral arguments to weigh evidence related to two of three major questions raised in ATA’s December 2011 appeal after the U.S. Court of Appeals for the 9th Circuit struck down a ban on independent owner-operators from servicing the Los Angeles Port.

However, the appeals court ruled that the port was allowed to require drayage operators to submit off-street parking plans, properly maintain their trucks, post placards on permitted trucks and demonstrate financial responsibility as part of its overall clean truck plan.

The high court does not plan to consider the issue of financial responsibility, meaning the requirement will likely not be eliminated, said ATA’s Deputy Chief Counsel Richard Pianka.

However, Pianka said a decision in favor of the port on the remaining requirements could put the federal exemption clause in jeopardy, allowing states and municipal jurisdictions, in effect, to regulate the trucking industry — a power now exclusively held by the federal government.

“It would create a hole you could drive a truck through,” Pianka said.

The Port of Los Angeles isn’t commenting on the details of the case outside of its court filings.

However, port spokesman Phillip Sanfield said, “An important component of the clean truck program is our concession agreement, and we’re confident that its provision upheld by the lower courts will be upheld by the Supreme Court.”

The court will allow each side 30 minutes to make its case and answer the justices’ questions, Pianka said.

ATA will allow the U.S. Solicitor General to use 10 of its 30 minutes, Pianka said.

Earlier on, the Solicitor General’s Office asked that the court not hear the case, but it will argue on ATA’s behalf because the court agreed to hear it anyway.

One question the court has agreed to consider centers on whether the appeals court erroneously ruled that, because the port was a business operation, the so-called “market participant” legal doctrine could be used to trump the federal preemption clause that forbids state and local governmental entities from imposing restrictions on motor carriers that interfere with their “prices, routes or services.”

Pianka said the market participant doctrine would give state and local governments “a back door to regulate the industry in ways that Congress clearly did not envision.”

The other ATA question the court agreed to review concerns whether the port can limit access to its property if drayage operators violate the concession agreement.

Attorneys for the port, the largest in North America in terms of shipping-container volume and cargo value, have argued that it is indeed a business and that the drayage concession requirements arise from actions taken to enable expansion of its terminals and facilities.

The Natural Resources Defense Council, an environmental nonprofit and intervener in the case, maintains the port is a business.

“The history of the clean truck program demonstrates that, while the port adopted the concession agreement knowing that it would benefit the environment, the ultimate objective of the agreement was to advance the port’s economic interests,” NRDC said in a brief filed with the high court.

In an April 5 statement to Transport Topics, NRDC said the case continues to be “a hard-fought battle against an industry clinging to its polluting practices.”

“ATA’s legal challenge threatens that program and the progress the port has made to improve its operations,” said Jessica Lass, an NRDC spokeswoman. “The port must have the authority to set business standards on its property for the benefit of its operations and the protection of local communities.”

But Pianka said the port’s own court documents indicate that port officials had a goal of reducing emissions from drayage trucks by 80%.

“They’ve done that,” Pianka said. “We agreed with them to replace older trucks in favor of new lower-emissions trucks.”

“We think reducing emissions is a good thing when it can be done reasonably,” Pianka added, “but nobody has explained how the information you display on the side of your truck has any impact on the environment.”