Post by truckerusa on Nov 4, 2008 10:52:00 GMT -5
PACIFIC SHIPPER
Clean-trucks program under way — and so is litigation
November 3, 2008
Stephanie Nall and Bill Mongelluzzo
For the last month, trucks that entered container terminal gates at the ports of Los Angeles and Long Beach have had to prove they belong to a not-so-elite club. Trucks allowed in to drop off or pick containers had to have stickers affixed to the windshield that proved they were operated by trucking companies holding a franchise with the port, and they had to prove the truck being operated was manufactured after Jan. 1, 1989.
Despite some fears earlier this year, the program hasn’t stopped port operations in its tracks. Partly because of the lower levels of import traffic, the clean-trucks programs haven’t caused chaos on the docks.
But implementation of the program hasn’t stopped legal questions and uncertainty, either. Legal battles are being waged on two fronts: at the 9th U.S. Circuit Court of Appeals in San Francisco and at the Federal Maritime Commission in Washington. More combatants have entered the fray at both fronts as federal agencies, environmental groups and industry groups file comments at the FMC or friend-of-the-court briefs with the courts.
In both instances, the cases being considered have been brought against the ports by the American Trucking Associations.
It’s no mystery why the issue has attracted such attention: The stakes are huge. What the courts and the FMC decide could set a precedent for other ports seeking to achieve cleaner air by regulating trucking operations. “The FMC has to deal with this law so other port authorities know what is and isn’t legal,” said Charles T. Carroll, executive director of the National Association of Waterfront Employers.
No one is challenging the anti-pollution measures, which are part of a clean-air program that the ports need in order to clear a backlog of stalled environmental permits for more than a dozen construction projects. No one objected to the ports’ Oct. 1 ban of trucks built before 1989. Motor carriers already have added dozens of new, clean-burning trucks to their fleets. Within five years, all trucks serving the harbor will be 2007-model or newer.
There’s sharp disagreement, however, over the ports’ requirements that truckers obtain operating licenses, or concessions. The ports’ clean-trucks plans require motor carriers to sign concession agreements, pay fees and abide by port regulations covering hiring practices, proof of financial capability, off-street parking requirements, and truck safety and security.
While the same programs are being scrutinized, the focus is a bit different. The court is addressing whether the ports’ concession requirements are an illegal effort to regulate interstate commerce. The FMC, meanwhile, is considering the concessions’ impact on truck capacity and freight rates, and whether the concessions discriminate against motor carriers and constitute a refusal by the ports to deal with certain types of trucking companies.
While the filings are voluminous and involve multiple issues, the controversy is crystallized in two main arguments:
• The American Trucking Associations charges that the Federal Aviation Administration Authorization Act prevents state or local regulation of motor carriers engaged in regulating interstate commerce. The ports insist they are exempt from that act because they operate on state-granted sovereign tidelands and because they are market participants attempting to protect their investments.
• The FMC has expressed concern that the concession requirements could improperly reduce competition and capacity, increase rates, and discriminate against some motor carriers. The National Association of Waterfront Employers has asked the 9th U.S. Circuit Court of Appeals to order the court case sent to the FMC for action under the Shipping Act. The FMC could seek a court injunction against the concession requirements.
Round One of the court battle has already taken place. The ATA last summer asked a federal district court in Los Angeles to block the ports from implementing the concession requirements on Oct. 1. The court denied the trucking organization’s request for emergency action.
The district court acknowledged that the ATA’s argument on federal pre-emption is sound. But in refusing to grant the emergency injunction, the court said the truck safety and port security could be compromised if the concessions didn’t take effect, and that the ATA hadn’t shown that allowing the concessions to take effect on schedule would cause irreparable harm to its members.
Last week, the two ports asked the court to give them an additional 21 days past the Nov. 5 deadline to file their response to the ATA. The ATA responded that they have had sufficient time to address the issue.
One new wrinkle in the filings: The Natural Resources Defense Council has warned the FMC that if it proceeds with the probe without first doing extensive environmental impact reviews, the agency will be in violation of federal laws. The NRDC promised litigation if the FMC continues.
Clean-trucks program under way — and so is litigation
November 3, 2008
Stephanie Nall and Bill Mongelluzzo
For the last month, trucks that entered container terminal gates at the ports of Los Angeles and Long Beach have had to prove they belong to a not-so-elite club. Trucks allowed in to drop off or pick containers had to have stickers affixed to the windshield that proved they were operated by trucking companies holding a franchise with the port, and they had to prove the truck being operated was manufactured after Jan. 1, 1989.
Despite some fears earlier this year, the program hasn’t stopped port operations in its tracks. Partly because of the lower levels of import traffic, the clean-trucks programs haven’t caused chaos on the docks.
But implementation of the program hasn’t stopped legal questions and uncertainty, either. Legal battles are being waged on two fronts: at the 9th U.S. Circuit Court of Appeals in San Francisco and at the Federal Maritime Commission in Washington. More combatants have entered the fray at both fronts as federal agencies, environmental groups and industry groups file comments at the FMC or friend-of-the-court briefs with the courts.
In both instances, the cases being considered have been brought against the ports by the American Trucking Associations.
It’s no mystery why the issue has attracted such attention: The stakes are huge. What the courts and the FMC decide could set a precedent for other ports seeking to achieve cleaner air by regulating trucking operations. “The FMC has to deal with this law so other port authorities know what is and isn’t legal,” said Charles T. Carroll, executive director of the National Association of Waterfront Employers.
No one is challenging the anti-pollution measures, which are part of a clean-air program that the ports need in order to clear a backlog of stalled environmental permits for more than a dozen construction projects. No one objected to the ports’ Oct. 1 ban of trucks built before 1989. Motor carriers already have added dozens of new, clean-burning trucks to their fleets. Within five years, all trucks serving the harbor will be 2007-model or newer.
There’s sharp disagreement, however, over the ports’ requirements that truckers obtain operating licenses, or concessions. The ports’ clean-trucks plans require motor carriers to sign concession agreements, pay fees and abide by port regulations covering hiring practices, proof of financial capability, off-street parking requirements, and truck safety and security.
While the same programs are being scrutinized, the focus is a bit different. The court is addressing whether the ports’ concession requirements are an illegal effort to regulate interstate commerce. The FMC, meanwhile, is considering the concessions’ impact on truck capacity and freight rates, and whether the concessions discriminate against motor carriers and constitute a refusal by the ports to deal with certain types of trucking companies.
While the filings are voluminous and involve multiple issues, the controversy is crystallized in two main arguments:
• The American Trucking Associations charges that the Federal Aviation Administration Authorization Act prevents state or local regulation of motor carriers engaged in regulating interstate commerce. The ports insist they are exempt from that act because they operate on state-granted sovereign tidelands and because they are market participants attempting to protect their investments.
• The FMC has expressed concern that the concession requirements could improperly reduce competition and capacity, increase rates, and discriminate against some motor carriers. The National Association of Waterfront Employers has asked the 9th U.S. Circuit Court of Appeals to order the court case sent to the FMC for action under the Shipping Act. The FMC could seek a court injunction against the concession requirements.
Round One of the court battle has already taken place. The ATA last summer asked a federal district court in Los Angeles to block the ports from implementing the concession requirements on Oct. 1. The court denied the trucking organization’s request for emergency action.
The district court acknowledged that the ATA’s argument on federal pre-emption is sound. But in refusing to grant the emergency injunction, the court said the truck safety and port security could be compromised if the concessions didn’t take effect, and that the ATA hadn’t shown that allowing the concessions to take effect on schedule would cause irreparable harm to its members.
Last week, the two ports asked the court to give them an additional 21 days past the Nov. 5 deadline to file their response to the ATA. The ATA responded that they have had sufficient time to address the issue.
One new wrinkle in the filings: The Natural Resources Defense Council has warned the FMC that if it proceeds with the probe without first doing extensive environmental impact reviews, the agency will be in violation of federal laws. The NRDC promised litigation if the FMC continues.