AMERICAN TRUCKING ASSOCIATIONS v. CITY OF LOS ANGELES
AMERICAN TRUCKING ASSOCIATIONS, INC., Plaintiff-Appellant,
THE CITY OF LOS ANGELES; THE HARBOR DEPARTMENT OF THE CITY OF LOS ANGELES; THE BOARD OF HARBOR COMMISSIONERS OF THE CITY OF ANGELES, Defendants-Appellees,
NATURAL RESOURCES DEFENSE COUNCIL; SIERRA CLUB; COALITION FOR CLEAN AIR, INC., Defendants-intervenors-Appellees.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 10, 2011—Pasadena, California.
Filed September 26, 2011.
Robert Digges, Jr. (argued), Chief Counsel, American Trucking Associations, Inc. Arlington, Virginia; Stephen S. Anderson, Jr., William Stephen Cannon, Seth David Greenstein, Richard Levine, and Evan P. Schultz, Constantine, Cannon LLP, Washington, D.C.; Christopher Chad McNatt, Jr., Scopelitis, Garvin, Light, Hanson & Feary, LLP, Pasadena, California, for the petitioner-appellant.
Steven S. Rosenthal (argued), Susanna Chu, David Cousineau, and Alan Palmer, Kaye Scholer LLP, Washington, D.C.; Joy Murakami Crose and Simon Michael Kann, LA City Attorney's Office, San Pedro, California; Thomas A. Russell and Carmen A. Trutanich, City of Los Angeles, San Pedro, California, for defendants-appellants the City of Los Angeles and the Board of Harbor Commissioners.
Melissa Lin Perrella (argued) and David Richard Pettit, Natural Resources Defense Council, Inc., Santa Monica, California, for defendants-intervenors-appellees The National Resources Defense Council, Sierra Club, and Coalition for Clean Air, Inc.
Anthony T. Caso, Law Office of Anthony T. Caso, Orange, California; John C. Eastman, The Claremont Institute Center for Constitutional Jurisprudence, Orange, California, for amicus-curiae The Center for Constitutional Jurisprudence and Harbor Trucking Association.
Kamala Harris and Susan Lea Durbin, Office of the California Attorney General, Sacramento, California, for amicus curiae the State of California.
John R. Bagileo, Law Office of John R. Bagileo, Glenwood, Maryland; Mark Irving Labaton, Motley Rice LLP, Los Angeles, California, for amicus curiae the Intermodal Association of North America, Inc.
William L. Messenger, National Right to Work Legal Defense Foundation, Springfield, Virginia, for amicus curiae Raymond Porras, Pilar Orellana, and the National Right to Work Legal Defense Foundation.
Paul D. Cullen, Jr., The Cullen Law Firm, PLLC, Washington, D.C., for amicus curiae The Owner-Operator Independent Drivers Association, Inc.
Before: Betty B. Fletcher and N. Randy Smith, Circuit Judges, and Rudi M. Brewster, District Court Judge.* Opinion by Judge B. Fletcher; Dissent by Judge N. R. Smith
B. FLETCHER, Circuit Judge.
Beginning in 2008, the Port of Los Angeles (POLA, or the Port) prohibited motor carriers from operating drayage trucks1 on Port property unless the motor carriers entered into "concession agreements" with the Port. The concession agreements set forth fourteen specific requirements covering, among other things, truck driver employment, truck maintenance, parking, and Port security. The agreements were adopted as part of the Port's "Clean Truck Program" (CTP), which includes a progressive ban on older (and higher-polluting) trucks on Port property, a multi-faceted incentive program to support acquisition of clean trucks, and a system of penalties on transport of cargo by older trucks. The Port adopted the CTP in response to community opposition, including litigation, that had successfully stymied Port growth from the mid-1990s through 2007. American Trucking Associations, Inc. (ATA, a national association of motor carriers),2 challenges the concession agreements, arguing that they are preempted by the Federal Aviation Administration Authorization Act (FAAA Act), 49 U.S.C. § 14501 et seq. After obtaining a preliminary injunction against several provisions of the concession agreements, ATA challenged five specific provisions at trial. The district court held that none of the challenged provisions fell within the scope of FAAA Act preemption, first because some did not relate to motor carriers' rates, routes, and services, and second because the State adopted the entire agreement (and the challenged provisions in particular) in its capacity as a market participant, rather than a market regulator. See 49 U.S.C. § 14501(c)(1). The district court further held that the FAAA Act's exemption for regulation "genuinely responsive to motor vehicle safety" saved from preemption the provision requiring motor carriers to create and administer regular maintenance plans. See 49 U.S.C. § 14501(c)(2)(A).
ATA appeals. We have jurisdiction under 28 U.S.C. § 1291. We affirm the district court in large part, but reverse its decision that the employee-driver provision of the concession agreement falls within the market participant doctrine and is not preempted.I.A.