Post by HardTimeTrucker on Mar 24, 2009 7:25:58 GMT -5
Court Ruling Deals Setback to California Clean Trucks Scheme
Rajesh Joshi - Monday 23 March 2009
AN APPELLATE court verdict in California has dealt a significant setback to the clean-trucks programme introduced by the Ports of Los Angeles and Long Beach.
The US Court of Appeals for the Ninth Circuit ruled that the lower district court, in a decision handed down last year, made an error in not allowing the American Trucking Associations’ request for an injunction, which would have prevented the implementation of concession requirements included in the programme.
Granting the main argument in the ATA’s subsequent appeal, the appellate court has reversed the district court’s decision and remanded the case back to the district court, asking that the latter to issue an “appropriate preliminary injunction”.
A main fall-out of the ruling is that the trucking companies that serve terminals in Los Angeles will not now have to replace 20% of their independent-operator drivers with employees by the end of this year.
Intending to clean up the environment around the crowded and polluted metropolitan area in Southern California, the clean trucks programme went into effect on October 1 last year.
It has three components: a progressive ban on pre-1989 model trucks, a $35 per teu fee that finally took effect last month and which would go towards subsidising the newer environmentally friendly trucks, and the concession agreements involving truckers.
ATA members rely largely on independent truck owner-operators as subcontractors to provide drayage at the ports. ATA estimates that 98% of truckers are such independents. Other port studies have put the figure around 85%.
Of the two ports, the concession agreement at Long Beach does not have a provision on the transition from independent drivers to employees. Los Angeles, however, has this requirement.
In order to remain licensed and authorised for port business, trucking companies would also have to adhere to other clauses in the concession agreements, such as equipping their trucks with radio frequency identification devices, and provide off-street parking outside the ports.
In sending the case back to the district court, the appellate court ruled that “ATA and its members would suffer irreparable harm absent the injunction, and that the balance of equities favoured issuance of the injunction”.
Agreeing with a different issue raised during the course the appeal, the Circuit Court held that the concession agreements improperly attempted to regulate the price, route, and service of a motor carrier in violation of federal law.
The appellate judges said they would not entertain requests for a re-hearing.
However, the Circuit Court has left it up to the district court to decide whether the concession agreements are to be enjoined, that is, prevented entirely or only in portions that are pre-empted by federal law and are illegal.