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.