Logistics Quarterly Magazine - Volume 16, Issue 1, 2010

Port Drayage, Clean Air and the FAAAA

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 firms because of local environmental or other concerns.

By John Cutler

IF THE PORT OF LOS ANGELES and various environmental groups get their way, the uniformity of U.S. 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 enterprise, 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. An act dealing with the FAA might seem an odd vehicle for such a step, but the impetus for the FAAAA came from concerns regarding FedEx, seen primarily as an air carrier though it also operated trucks.

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, environmental groups and the Teamsters have argued for an exemption from the general rule.

No bill has yet been introduced in Congress, but the port and its allies seek to challenge what they see as undue restrictions on 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 and limit federal preemption.

Even considered in isolation, the port's effort is problematic. While older trucks used in drayage operations at the ports of Los Angeles and Long Beach may have had objectionable emissions levels, great strides have already been made in replacing some 8,000 older, dirtier trucks with newer, cleaner trucks without action by Congress that could undermine the national uniformity of transportation laws. 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 ATA.

Opponents of the Port of Los Angeles include ATA as well as major shipper organizations like NASSTRAC, NITL, the National Retail Federation, TIA, RILA and other groups, which have joined forces in the Clean and Sustainable Transportation Coalition.

These groups argue that the crux of the dispute is not clean air or security but a demand that drayage drivers must become employees of larger trucking companies, rather than independent owner-operators, as many are today. This "concession" requirement appears intended to help the Teamsters' organ- izing 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 envi- ronmental 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 pre- emption 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 compa- nies 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 prod- ucts to use carriers that would ensure delivery only to adults. Such state and local regulatory efforts are sure to pro- liferate if the Port of Los Angeles and its environmental allies are successful.

Fortunately, joint efforts by shipper and port user groups and the trucking industry appear to be paying off. The American Association of Port Authori- ties recently adopted a policy that amending the FAAAA is not needed at this time because many ports have managed to arrange for newer and cleaner drayage truck service without a change in federal law.

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.