David Pettit's Blog
This, You Call a Slam Dunk?
July 28, 2008
Posted by David Pettit in Health and the Environment
After months of chest-thumping, the trucking industry has finally filed its lawsuit against the Clean Trucks Programs of the Ports of Los Angeles and Long Beach.
A month or so ago, an industry representative told the Journal of Commerce that their lawsuit would be a “slam dunk.” The industry complaint reminds me of a play by the little-known John Q. Trapp, a Los Angeles Laker benchwarmer from the early 1970’s (No. 31, seated between Wilt and Elgin in this team photo). One night, Trapp, who was no gazelle out there (as Chick Hearn used to say), went out on a breakaway and went up for the dunk, all alone. He slammed the ball off the heel of the basket, watching in helpless embarrassment as the ball took a long, high rebound out to midcourt.
Industry’s legal arguments will fare no better. First, they rely heavily on the recent Rowe vs. New Hampshire Motor Transport Association case from the U.S. Supreme Court for the argument that the ports can’t admit some trucks (i.e. clean trucks) and deny admittance to others (dirty trucks). The Rowe decision struck down a Maine law that required delivery truck drivers to check the ages of the recipients of cigarettes, on the theory that the Maine law was preempted by the Federal Aviation Administration Authorization Act. The ATA says that Rowe means that the Ports can’t keep dirty trucks off their property. But ATA’s argument is wrong because even if a court finds the programs preempted, under the “market participant” doctrine, the ports, as landlords, can choose who they do or don’t want to do business with, and who can or can’t come onto their property.
Second, industry argues that the Commerce Clause of the U.S. Constitution bars the ports from telling dirty trucks in interstate commerce that they can’t work at the ports. This is wrong also because the Commerce Clause (actually, the “dormant Commerce Clause,” for constitutional nitpickers) does not draw a bright line between permitted and illegal in a case like this, but rather requires a balancing test that looks at the local interests and the degree of impairment of interstate commerce. Here, the local public health interest is huge. Moreover, even if ATA can establish any harmful effects on interstate trucking, these impacts will be very small, in part because most interstate cargo leaves the ports by rail. The Ports’ emissions inventory data does not lie and the filthy trucks that serve the ports are aiding and abetting a wholesale health crisis in port adjacent communities.
So, when this particular litigation game is over, the trucking industry will need to settle down, practice their chest passes and lay-ups, and get on the clean air team. It’s about time. The shot clock is about to run out for the health of many children and residents in the harbor area.
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- David Pettit
- Director, Southern California Air Program
- Santa Monica, CA
- I grew up in the L.A. area and am a die-hard Dodgers and UCLA Bruins...
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Comments
Paul Dodge — Jul 30 2008 09:22 PM
David, Your goal is comendable. I hope your goal of cleaning up the air around the port works. But you must know that you've entered into an agreement with the Devil by joining forces with the Teamsters. I'm an Owner-Operator in Boston and have had many dealings with the Teamsters while trying to organize the O/O's. I've dealt with Chuck Mack and just six months ago he assured me this was just going to happen in the LA ports. Now they have made plans to pursue all the ports. They have lied to everyone along the way, I've been lied to for over 10 years now. The O/O's can afford newer trucks if the rates were only increased. I have a 2000 truck and have upgraded constantly over my 29 years in the ports. The IRS, NLRB and Social Security Admin. have all determined the O/O's to be mis-classified workers. We are employees! Just like that mechanic that works for the auto dealership. He brings his huge toolbox with him when he changes jobs. When we do a job we use our tool, our truck! I hope you try to understand that over 50,000 O/O's work the ports of this country and we want to continue. Many of us take great pride in the job we do and the trucks we own. And you may be surprised at how many of us are against what you are allowing the Teamsters to do. Please don't be another pawn to the Teamsters. I have been and it's terrible!
Thank You, Paul Dodge
David Pettit — Jul 31 2008 12:40 AM
Paul: thanks for your comments. Your remark that "if the rates were only increased" is absolutely right -- but I'm sure you have seen the race to the bottom for port trucking fees since trucking was deregulated. Our local ports have designed a system where 80% or more of the cost of new trucks will be paid for by fees imposed on containers that the trucks will carry. The American Trucking Association filed a lawsuit two days ago to try to kill the ports' truck plans -- including the Port of Long Beach plan that does not have the employee component that the Port of LA plan does. NRDC will ask the judge to be let into the lawsuit so that we can defend both ports' plans, including the Long Beach plan that the Teamsters don't like. We absolutely need to do this: our ports are the biggest polluters in the worst air basin in the US.
Paul Dodge — Jul 31 2008 09:50 PM
David, Most, no all Owner-Operators would have the best trucks out there and support the cleanest ports possible, with a rate system that made sense. Yes, dergulation is why many O/O's got into this business arrangement. The Gov't could change all of this by allowing us to organize in some fashion that would allow us to raise the standards of our industry. The companies are afraid to raise the rates and risk losing business to another carrier who is $5 cheaper. If you raised the rate on a container load of shoes by $250.00, that would translate into $.0523 per pair of shoes. This has gone on and on forever. I'm sure just like your cause has! Beating our heads against the wall isn't fun. And then to be taken advantage of by someone like the Teamsters only adds insult to injury. They're not in this to clean up the ports, there in this to line their pockets with more dues money. And when some politician or some other person of knowledge, comes along and shoots down your plan over dollars or such.... they'll say sorry and laugh all the way to the bank. The Teamsters will not come into my port now! We don't need them, nor do you! Good luck with your program and the lawsuits. I hope you clean up the ports, but lose the lawsuits.
David Pettit — Aug 1 2008 12:58 PM
Paul: We're not house counsel to the Teamsters -- our job at NRDC is to clean up the air in So. Cal. any way we can. If the ports' clean trucks plans don't work, we'll try something else. And BTW the ATA has asked the federal court to issue an injunction putting those plans on ice until the lawsuit is over; that request is scheduled to be heard on August 25. I'll post something about that here, one way or the other.