NASSTRAC: The Case for the Uniformity of the United States’ Transportation Law at the Port of Los Angeles

By John Cutler

If the Port of Los Angeles and various environmental groups get their way, the uniformity of the United States‘ transportation law will be jeopardized, and the main beneficiary will be the Teamsters Union.

Federal preemption is the legal doctrine, based in the Commerce and Supremacy clauses of the U.S. Constitution, that prevents states from acting where Congress has decided that federal law or policy should be controlling. Without preemption, there are many issues as to which state law could conflict with or deviate from federal law, and there is an even greater likelihood that laws will differ from state to state. These conflicts can cause headaches for any business, but they are particularly troublesome for carriers and shippers doing business across the country.

In the Federal Aviation Administration Authorization Act (FAAAA) of 1994, Congress terminated most intrastate regulation of the trucking industry, providing that states may not regulate the prices, routes or services of motor carriers. The FAAAA might seem an odd vehicle for such a step, but the impetus for it came from concerns about FedEx, with operations as an air carrier and a motor carrier.

For 15 years, the FAAAA has served carriers, shippers and the public well, preventing a patchwork of local requirements, and providing tools to combat NIMBYism by state and local governments. Recently, however, the Port of Los Angeles has sought an exemption from the general rule.

No bill has yet been introduced in Congress, but the port seeks to challenge what it sees as undue restrictions on its efforts to improve local air quality through a clean truck program. The Port of Los Angeles is trying to enlist other ports, including the ports of New York and New Jersey, in support of its effort to amend the FAAAA.

Even if considered in isolation, the port‘s effort is problematic. While older trucks used in drayage operations at the Port of Los Angeles may have had objectionable emissions levels, great strides have already been made in replacing older, dirtier trucks with newer, cleaner trucks without action by Congress that could undermine federal preemption. The port claims that it needs to have Congress legislatively overrule the decision by the liberal Ninth Circuit Court of Appeals in American Trucking Associations v. City of Los Angeles, which upheld federal preemption. However, this claim is hard to credit in light of the success of the program. The Port of Long Beach, which had been siding with the Port of Los Angeles on this issue, recently signed a settlement agreement with American Trucking Associations (ATA).

Opponents of the Port of Los Angeles, including ATA as well as major shipper organizations like NASSTRAC, the National Industrial Transportation League and the National Retail Federation, argue that what the port really wants is the ability to require drayage drivers to be employees of larger trucking companies, rather than independent owner-operators, as many are today. This requirement may help the Teamsters‘ organizing efforts, but it is not necessary to improve air quality.

Not only is the weakening of federal preemption that the Port of Los Angeles seeks unnecessary for environmental improvements in the local area, but it could lead to efforts by other ports, cities, counties or states to try to evade federal preemption for their own purposes. If the Port of Los Angeles gets relief from federal preemption because of claims that relief is needed on environmental grounds, other local jurisdictions can be expected to argue that they should be allowed to regulate trucking companies because of local environmental, safety, security, traffic congestion or other concerns.

Notably, the Ninth Circuit decision upholding federal preemption as to the clean truck program relied on an earlier decision by the U.S. Supreme Court in Rowe v. New Hampshire Motor Transport Association. In that decision, the Supreme Court rejected an effort by the State of Maine to regulate motor carriers indirectly, through a law requiring shippers of tobacco products to use carriers that would ensure delivery only to adults. Such state and local regulatory efforts are sure to proliferate if the Port of Los Angeles and its environmental allies are successful.

Regardless of how readers of LQ feel about clean air issues at ports, the threat of weaker federal preemption should be of concern to all.