9th Circuit throws out Clean Trucks Plan's contentious driver provision

Trucks drive near City Hall to protest shipping container fees being assessed against independent truckers as part of the ports' Clean Truck Program to allow only newer, less-polluting trucks at the ports, on November 13, 2009 in Los Angeles.
Trucks drive near City Hall to protest shipping container fees being assessed against independent truckers as part of the ports' Clean Truck Program to allow only newer, less-polluting trucks at the ports, on November 13, 2009 in Los Angeles. David McNew/Getty Images

Judges on the federal 9th Circuit Court of Appeals have found that the Port of LA lacks the authority to require trucking companies to hire their drivers as employees, a key provision of the port's Clean Trucks Plan.

Labor activists have criticized market pay and working conditions for drivers at the port, and the ruling deals a blow to Mayor Antonio Villaraigosa's high-profile effort to blend labor and environment interests.

But the opinion leaves in place four other key requirements the port imposes (through the Clean Trucks Plan) on companies that serve cargo terminals at the harbor. Those companies still must replace older, dirtier trucks with cleaner ones. Rules that require companies to show they're financially solvent are OK, parking limits can still apply and truck owners must prove they're maintaining their rigs.

Patricia Castellanos of the Coalition for Clean and Safe Ports argues that independent truckers don't take home enough money to pay for pollution reduction. "When you have a driver earning an average of $28,000, not to mention insurance on the cargo, not to mention fuel, a fundamental element of the success of this program is that the burden be shifted away from drivers and internalized by industry," she said.

In a written statement, Villaraigosa said, "Today’s ruling hurts the long-term sustainability of the Clean Truck Program." The Natural Resources Defense Council has backed the Port of L.A.'s program in court, and NRDC lawyer David Pettit said the rules left standing will continue to help cut air pollution. But Pettit said he's worried that eliminating the employee requirement will undermine those rules. "My concern at this point is that the trucking companies will use this as an excuse to slough this off the maintenance costs on the drivers," he said, "and then we'll be right back where we started."

"[Environmentalists are] worried about everything, quite frankly," said the American Trucking Association's Curtis Whalen, who said the Ninth Circuit was right to toss the employee driver rule, by far the most contentious within the trucking lobby.

Judge Betty Fletcher wrote the majority opinion, in which she concluded, "the employee driver provision seeks to impact third party behavior unrelated to the performance of the concessionaire’s obligations to the Port." Judges ruled that the provision illegally aimed to influence the relationship between companies and their drivers. "The Port has an interest in continued provision of drayage services, but it may not obtain that stability by unilaterally inserting itself into the contractual relationship between motor carriers and driver," Fletcher wrote.

Besides, said Whalen, the program's working without it. "If you look at the L.A. and Long Beach programs they've got something like 8- to 9,000 2007 or better trucks," Whalen said. "Those are new and clean burning trucks, they'll be maintained by the companies or the drivers that own them."

Port officials and environmental groups have promoted the program's success in cutting diesel emissions from trucks by 80 percent — ahead of schedule. Those parties say they're still weighing whether to appeal the decision. No matter what they do, the trucking industry and L.A. city officials have said a good sign of the program's success is how much diesel soot trucks deposit in the air people breathe at the harbor.

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