When a federal appeals court last week threw out the most controversial part of the Port of Los Angeles’ Clean Truck Program, it looked like a clear win for the trucking industry.

But the American Trucking Associations, the group that sued the port, isn’t happy with the ruling that eliminated a requirement for employee drivers and might appeal to the Supreme Court.

“In an ideal world, we can’t have this stand,” said Curtis Whalen, executive director of the ATA’s Intermodal Motor Carriers Conference, which represents port trucking firms.

The 9th Circuit Court of Appeals ruled that most provisions of the Clean Truck Program could stand, but said the port could not require trucking companies to hire drivers as employees. The ruling let stand a decades-old practice of having independent owner-operators haul cargo under contract with trucking companies.

The port said that requiring employee drivers will make it easier to enforce the program by allowing it to deal with a limited number of companies, instead of thousands of independent truckers. But the mandate was backed by labor and was seen by the industry as a provision largely inserted to assist Teamsters organize port truckers.

Whalen said the mandate was the worst part of the clean truck program from the industry’s perspective, but it certainly is not the only part trucking companies dislike.

Other provisions upheld by the appeals court allow the port to force trucking companies to maintain their trucks and ban trucking companies that don’t follow the rules. Those provisions stem from a broader concession rubric that the industry feels gives too much power to public port authorities.

However, two of three judges on the circuit panel said the port was not acting as a regulator, but instead was acting as a “market participant” with a financial interest in making sure the port runs smoothly.

Whalen said that sets a dangerous precedent that could open the door for other ports to enact similar requirements.

David Pettit, a senior attorney with the L.A. office of the Natural Resources Defense Council, agreed, saying he wouldn’t be surprised to see the ATA appeal the ruling.

“The ATA is going to have some problems with this in places other than L.A.,” Pettit said. “Assuming this ruling stands, I think a lot of ports are going to be energized to try to take care of their own truck problems.”

However, Whalen acknowledged that there are some advantages to putting an end to the case. If the ruling isn’t challenged, it would give ports and the trucking industry a clear idea of what’s allowed and what’s not as they negotiate clean truck policies nationwide.

“If both of us were to say that’s enough, then those discussions could proceed,” he said. “The sooner we get the groundwork laid and start moving forward, the better.”

The port and the ATA will go back to federal court in Los Angeles in the next few weeks. Either side could ask for a rehearing at the circuit court or even appeal to the Supreme Court, which grants very few appeal petitions.

Pier S Movement

There’s only so much you can do to make a clean, “green” shipping terminal.

That’s one takeaway from the draft environmental impact report on the Port of Long Beach’s plan to build its first shipping terminal in more than a decade.

The report, released last month, shows that even with new trucks, electric equipment and ships burning cleaner fuel, the terminal would create a significant amount of emissions, as defined by state and federal laws.

That’s no surprise: The $650 million project, called Pier S, would be built on top of what is an empty lot on the north side of Terminal Island. The facility, which could open as soon as 2013, would be able to dock three large container vessels at once and handle as many as 1 million cargo containers a year.

The draft environmental report says the port is doing everything it can to minimize emissions, including requiring ships that would dock at Pier S to shut off their engines and plug into the local electrical grid.

Port officials have said they hope that will mean a warm reception from environmental groups. They should find out this week if that hope will be fulfilled.

A public hearing on the project is scheduled for 6:30 p.m. Wednesday at Long Beach City Hall. Another meeting, a chance for local residents to weigh in on the project, will be held at 6:30 p.m. Oct. 13 at Cabrillo High School in Long Beach.

Staff reporter James Rufus Koren can be reached at jrkoren@labusinessjournal.com or at (323) 549-5225, ext. 225.

For reprint and licensing requests for this article, CLICK HERE.