ATA to file suit against SoCal truck plan next week
American Trucking Association officials said the ATA plans to ask a federal judge early next week to block implementation of the Southern California ports' $2.4 billion drayage re-regulation program.
The anticipated suit, to be filed in a U.S. Central District court on either July 28 or 29, will attack the ports of Long Beach and Los Angeles drayage plan primarily on the grounds of federal preemption of the ports' local authority. The suit, primarily written by the ATA's Intermodal Motor Carrier Conference arm, will seek a federal injunction to prevent the two adjacent ports from moving forward with implementing key portions of the truck program.
At the heart of the issue, according to the ATA, is an access license component of the ports' overall truck plan and the legality of the local port authorities to restrict federally regulated interstate commerce.
'Under federal deregulation, since the 1980s, in order to enter port drayage you only had to file with the federal government and enter,' said Curtis Whalen, executive director of the ATA's IMCC. 'Now the ports want to institute a contractual policy that is a barrier to entering port drayage.'
The $2.4 billion trucking plan, adopted in slightly differing versions by the neighboring ports of Long Beach and Los Angeles, aims to cut diesel pollution through an elaborate system that by 2013 would replace or retrofit the nearly 17,000 drayage trucks servicing the ports. The plan bans certain model year trucks from servicing the ports on a progressive yearly basis beginning with more than 2,000 pre-1989 trucks on Oct. 1.
The plan also requires motor carriers to obtain an access license, referred to as concession agreements by port officials, from the ports to allow their fleets to service the ports' facilities. To obtain a license, motor carriers must agree to port-defined stipulations ranging from business practices to labor criteria. The ports have also imposed a $35-per-TEU container tax to provide a majority of the funds to replace the privately owned trucks.
Representing more than 37,000 motor carrier members, the ATA has opposed the ports' truck plan since shortly after the ports introduced it early last year. The ATA, the nation's largest trade association, believes the truck plan's licensing component, violates federal interstate commerce laws.
A major point of contention over the licensing component of the plan for the ATA has been a labor stipulation requiring motor carriers to hire only per-hour employees. Currently, more than 80 percent of the ports-servicing drayage fleet is made up of per-load independent owner-operators.
The employee-only requirement, heavily promoted by Los Angeles Mayor and former union organizer Antonio Villaraigosa and the International Brotherhood of Teamsters, was adopted by Los Angeles port commissioners but not by the Long Beach port board. Instead, Long Beach port commissioners decided to adopt language that would allow trucking firms to hire employees, independent owner-operators, or any combination of the two.
However, Long Beach port officials did approve the access licensing model, and the ATA suit will name both ports as defendants.
'We are not challenging the ports' tariffs to ban trucks, nor are we challenging the ports' funding methods,' said the IMCC's Whalen. 'The problem is, and what we are suing over, is the concession agreements.'
The two ports have been anticipating the lawsuit for nearly a year and have already spent several million dollars retaining several prominent law firms to help defend against the possible ATA action.
'We are just anxious to see (the suit), get it in front of a judge, and we think we will pass the test,' James Hankla, president of the Port of Long Beach Harbor Commission, said Monday. 'Our lawyers think our plan is very defensible and hopefully we will come out of it with the plan intact.'
Hankla, who said he had hoped the ATA would have filed the suit by now, even took time during his recent trip to Stockholm, Sweden to call ATA officials and ask the group to file the suit as quickly as possible.
'I think (the ATA) would have been happy to accommodate us except they wanted to see the concession (criteria) and have their lawyers go over it with a fine toothcomb,' Hankla said.
While the ATA has had the majority of the actual suit prepared for some time, Whalen said his group was waiting for a 'triggering event' before actually filing.
Last week, both ports issued their official access license applications, which Whalen acknowledged met the requirement to trigger the filing.
Once filed, according to Whalen, the ports will have up to 30 days to respond to the charges in the suit. The ATA will then have a similar period to answer the ports' response. The court will then decide if an injunction against the portions of the truck plan detailed in the suit should be issued.
If the court decides to enjoin the plan's implementation, the truck plan's Oct. 1 start date would most likely have to be delayed by both ports.
Hankla, while confident the ports' position is sound, acknowledged such risks.
'We are staking a lot on the idea that as a property owner we have the right to control our property,' he said. 'Yes, we believe that (the truck plan) is contrary to one legal theory. But, I think there are other legal theories that find us very comfortable within the four corners of the law.'
The most serious concern for the ports from the lawsuit is timing.
Whalen estimates that a full-blown legal battle over the truck plan could last up to three years.
However, California state air quality regulators are set to move forward with their own diesel truck replacement program by the start of 2010. If the ports' truck plan is delayed beyond the start of the state program, the state truck plan could essentially render the ports' efforts moot. ' Keith Higginbotham