Trucking industry challenges to the Port of Los Angeles’ pollution rules for trucks carrying cargo to and from the Port (“Clean Truck Program”) have hit the United States Supreme Court.  The Court has agreed to accept certiorari to decide whether the rules that require, among other things, that trucking firms enter into agreements with the Port Authority of Los Angeles (“Port Authority”) to govern regular maintenance of trucks, off-street parking, and posting of identifying information are an unconstitutional interference with interstate commerce.  Perhaps most contentious is the requirement that, ultimately, all truck operators must become employees of trucking companies, rather than acting as independent contractors. 

The American Trucking Association originally challenged the Clean Truck Program on the grounds of a Federal law deregulating and preempting local authority “related to a price, route, or service of any motor carrier.”  49 U.S.C. § 14501(c)(1).  Although the Port Authority has had surprising success in the lower courts thus far, the preemption provision relied upon by the trucking industry bears a substantial similarity, even identity, with the provisions in the Airline Deregulation Act, 49 U.S.C. § 40101, et seq. (“ADA”), which has rarely been successfully challenged.

Like the provision of Federal law deregulating motor carriers, the ADA prohibits local airport proprietors from promulgating regulations governing or restricting the “price, route, or service of an air carrier.”  49 U.S.C. § 41713(b)(1).  The basis of the preemption provision of the ADA, like that in the Motor Carrier Act of 1980, lies in Article 1, Section 8 of the United States Constitution, the Commerce Clause.  The Commerce Clause grants Congress the power to “regulate commerce . . . among the several states. . .”  Preemption can occur in any one of three ways: (1) express preemption; (2) field preemption; or (3) conflict preemption.  The definition of express preemption, as is fairly obvious, is where Congress makes an affirmative statement totally occupying a specific field of endeavor.  Field preemption, on the other hand, is less specific.  It “exists where federal regulations are so pervasive as to make reasonable the inference that Congress left no room of the states to supplement it.”  City of Oceanside v. AELD, LLC, 740 F.Supp.2d 1183, 1189 (2010).  Conflict preemption is where a state or local law conflicts with Federal law addressing the same subject matter. 

Ignoring the strong analogy between the two statutory provisions, the District Court and Ninth Circuit Court of Appeals found that rules promulgated by the Port Authority were not of the same type as laws generally governing motor carriers in Los Angeles, but were special rules limited to the Port Authority alone.  Ironically, it is precisely these “special rules” that are the type of regulation the two preemption provisions of Federal law were meant to forestall. 

The United States Justice Department agrees.  In a brief filed in November 2012, the United States Solicitor General analogized the Port Authority “to a publicly managed transportation infrastructure, like a highway or bridge.”  It’s a short step to the publicly managed transportation infrastructure which characterizes airports, and which are governed by an identical preemptive provision.  Based on that precedent, it would not be surprising to see the United States Supreme Court take the position the Federal Courts have almost unanimously taken in the past, and overturn the local air pollution regulation that has a cognizable impact on the trucking industry, as well as the state’s goals of reducing pollution, far outside the narrow boundaries of the Port Authority.