A Setback for Clean Ports
Hot off the presses, the Ninth Circuit has partially reversed Judge Christina Snyder’s order in American Trucking Ass’n v. City of Los Angeles, an important environment-labor-pre-emption case that I blogged about a little more than one year ago.
The case concerns the Port of Los Angeles’ “Clean Ports” program, which, among other things mandates a series of quite specific environmental standards for truck operators at the Port. The ATA argued that the Program was pre-empted by the Federal Aviation Administration Authorization Act (FAAA), 49 USC sec. 14501 et seq., which pre-empts state and local governments from taking actions that “relate to motor carriers’ rates, routes, and services.” The Ninth Circuit said that the program did not relate to these things because there are lots of ways in which the carriers can maintain the status quo, so any relation is purely tangential and voluntary. Moreover, said the panel, the FAAA contains an implicit exemption for when the City operates as a market participant: the federal statute was supposed to regulate governments, not business, but here, the City was acting as a business.
So far, so good. But the panel reversed Judge Snyder’s upholding of the Clean Ports Program’s requirements that the truckers be employees of trucking companies, not independent contractors. This was not acting like a private business, because what private business operates to try to unionize its suppliers? I was worried about this provision when Judge Snyder issued her opinion, and at least upon an initial viewing of the summary, it seems as if my concerns have been borne out.
Advocates for the Clean Ports Program say that they wanted the unionization provisions to reduce idling on port property: because there was no order about which trucks got which cargoes, truckers would compete to see who got them, and that required idling, and that meant more exhaust. Having them all work for trucking companies would regularize the process and thus reduce idling exhaust. The Ninth Circuit didn’t buy it, suspecting instead that it was the City attempt to foster unionization, which might be legitimate, but would also pre-empt the action.
Even here, the decision was 2-1, as Judge N. Randy Smith argued that in fact the City was acting as a regulator of “drayage services”, i.e. it was regulating which trucks could haul which cargo to other places. It was not acting as a market participant in the “port services market.”
I wouldn’t be surprised to see this one go higher — the Roberts Court would love to try to prevent cities and states from protecting the environment. But even if it doesn’t, it is a real setback for the unions: perhaps they might take a risk with a 9th Circuit en banc panel, but if they win there, the Supremes will be in the background anxious to bust unions and thereby enhance economic inequality.
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Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…
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“Advocates for the Clean Ports Program say that they wanted the unionization provisions to reduce idling on port property: because there was no order about which trucks got which cargoes, truckers would compete to see who got them, and that required idling, and that meant more exhaust.”
Actually, they claimed that larger companies stood a better chance of paying back the loans for clean trucks given by the Port. I don’t know that idling had anything to do with it. But that’s the problem with trying to shoehorn the labor and environmental movement together. Apart from being convenient political bedfellows, the environmental side of things largely got what they wanted out of this exercise. At what point does it cease to keep pushing this rock up the hill on behalf of labor? I assume at the point at which both sides realize that they’d sell each other out at the drop of the hat once this is over. Look at the labor support on the CEQA bills this year. It was nice while it lasted, but this marriage of convenience is over.
Well, I was repeating what a commenter from the local environmental justice group said concerning my last post. This might have been their initial position. Note that the financial capability provisions of the Port Concession Agreement were upheld by the 9th Circuit, so perhaps we will wind up with larger companies anyway, assuming that the case does not go en banc or to the Supremes.
Inherent in the idea of a coalition is a commitment to stick with the other parties even if your own short-term interest is satisfied. Given that the ATA will probably try to get this case taken up en banc or higher, it’s in both labor’s and the environmental groups’ interests to argue for the employee provisions. That’s a tougher road to hoe from a pre-emption standpoint, though.