Trucks Defeat Sign Rule to Access Los Angeles

     WASHINGTON (CN) – The Port of Los Angeles cannot force trucks to bear signs asking fellow commuters “How am I driving,” the Supreme Court ruled Thursday.
     Trying to expand with limited environmental impact, the port has required since 2008 concession agreements from all companies operating short-haul, or drayage, trucks. Local citizens and environmental groups had successfully halted the port’s expansion plans for a decade over pollution concerns. One study cited in the court record found that, compared with other Southern Californians, people living near the port had a 60 percent greater risk of developing cancer.
     The port began the initiative to “grow green” in 2006, with the goal of reducing its total emissions 45 percent by 2012. One of the port’s primary tools for achieving this goal is the Clean Truck Program.
     The 14-point program includes a progressive ban on older trucks, and provides grants to trucking companies to replace or retrofit more than 16,000 polluting old trucks. It also slaps penalties on those noncompliant outfits. Another rule, the employee-driver provision, requires port concessionaires to transition from owner-operators to 100 percent employee drivers over five years.
     Two of the requirements that went before the Supreme Court this term compel companies “to (1) affix a placard on each truck with a phone number for reporting environmental or safety concerns (You’ve seen the type: ‘How am I driving? 213-867-5309’) and (2) submit a plan listing off-street parking locations for each truck when not in service,” according to the ruling (parentheses in original.)
     In a partial reversal of the 9th Circuit’s ruling on the matter last year, the court agreed with the industry challengers in the American Trucking Association that those two provisions are pre-empted by the Federal Aviation Admin­istration Authorization Act.
     “The port here has not acted as a private party, contracting in a way that the owner of an ordinary commercial enterprise could mimic,” Justice Elena Kagan wrote for the unanimous court. “Rather, it has forced terminal operators – and through them, truck­ing companies – to alter their conduct by implementing a criminal prohibition punishable by time in prison. In some cases, the question whether governmental action has the force of law may pose difficulties; the line between regulatory and proprietary conduct has soft edges. But this case takes us nowhere near those uncertain bounda­ries. Contractual commitments resulting not from ordi­nary bargaining … but instead from the threat of criminal sanctions manifest the government qua government, performing its prototypical regulatory role.”
     Because two of the other provisions that the 9th Circuit upheld are now in effect, the trucking companies said that the court’s 1964 decision in Castle v. Hayes Freight Lines limits how the port can enforce those requirements.
     Trucking companies that violate the agreement with the port could be barred from port access, essentially partially suspending the motor carriers’ federal registration.
     “The parties agree that the port has never suspended or revoked a trucking company’s license to operate at the port for a prior violation of one of the contract provisions involved in this case,” Kagan noted.
     With this in mind, the court said it would be “a shot in the dark” to address the Castle question from the pre-enforcement posture of this case.
     The ruling notes that the trucking industry had even said in an amicus brief for Castle that a vehicle “that fails to comply with the state’s regulations may be barred from the state’s highways.”
     “And ATA reiterates that view here, as does the United States as amicus curiae,” Kagan wrote. “So the Port would not violate Castle if it barred a truck from operating at its facilities to prevent an ongoing violation of the agree­ment’s requirements.
     “And at this juncture, we have no basis for finding that the Port will ever use the agreement’s penalty provision for anything more than that. That provision, to be sure, might be read to give the port broader authority: As noted earlier, the relevant text enables the port to suspend or revoke a trucking company’s right to provide dray­age services at the facility as a ‘[r]emedy’ for a ‘major default.’ But the agreement nowhere states what counts as a ‘major default’ – and specifically, whether a company’s breach of the financial ­capacity or truck-maintenance requirements would qual­ify. And the port has in fact never used its suspension or revocation power to penalize a past violation of those requirements. Indeed, the port’s brief states that ‘it does not claim[] the authority to punish past, cured violations of the requirements chal­lenged here through suspension or revocation.’ So the kind of enforcement ATA fears, and believes incon­sistent with Castle, might never come to pass at all.”
     In a concurring opinion, Justice Clarence Thomas spoke about the tension inherent in the fact that the Constitution does not give Congress the power to regulate intrastate commerce, but the FAAAA, codified at Section 14501, regulates intrastate transportation.
     “By its terms, §14501(c) would pre-empt even a city ordinance establish­ing a uniform rate for most transportation services origi­nating and ending inside city limits, so long as the services were provided by a motor carrier,” Thomas wrote. “Such an extraordinary assertion of congressional authority cannot be reconciled with our constitutional system of enumerated powers.”
     Thomas said he doubts whether Congress has the authority to regulate the placards and parking arrangements of drayage trucks using the port, but that this argument was waived.
     “Nevertheless, because respondents did not preserve a constitutional challenge to the FAAAA and because I agree that the provisions in question have the ‘force and effect of law,’ I join the court’s opinion,” he concluded.

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