FMC Moves to Dismiss its Court Challenge of LA/LB Clean Trucks Agreement

FMC: injunctive remedy under section 6(g) of the Shipping Act has become moot due to intervening events in the ATA litigation and Port of Long Beach Board of Harbor Commissioners took action that substantially eliminated the differences between the two Ports' exemptions from its Clean Truck Fees and incentives to truckers.

The Federal Maritime Commission announced that it filed in the U.S. District Court in Washington D.C. today (June 16th) a motion requesting the court to withdraw the Commission's challenge of FMC Agreement No. 201170, the Los Angeles/Long Beach Port Infrastructure and Environmental Programs Cooperative Working Agreement. In October 2008, the Commission authorized staff to file a complaint with the U.S. District Court pursuant to section 6(h) of the Shipping Act of 1984 to enjoin aspects of Agreement No. 201170, including concession requirements that mandated exclusive use of employee-drivers in the Port of Los Angeles.

Following hearing before U.S. District Court Judge Richard Leon, the court in April 2009 denied the Commission's request for a preliminary injunction to remove certain elements of the Agreement believed to be substantially anti-competitive, while permitting the Ports to implement those elements of the CTP that produce clean air and improve public health. Thereafter, in unrelated court proceedings initiated by the American Trucking Associations, Inc. (ATA) against the Port Defendants in the United States District Court for the Central District of California, on April 28, 2009, that Court enjoined, among other things, the Port of Los Angeles employee-driver mandate. Am. Trucking Ass'ns, Inc. v. City of Los Angeles, No. CV 08-4920, (C.D. Cal. Apr. 28, 2009).

In taking this action, the Commission noted to the court that the injunctive remedy under section 6(g) of the Shipping Act has become moot due to intervening events in the ATA litigation over which the Commission had no influence or control. In addition, effective on or about May 4, 2009, the Port of Long Beach Board of Harbor Commissioners took action that substantially eliminated the differences between the two Ports' exemptions from its Clean Truck Fees and incentives to truckers. Finally, the steep economic downturn has made it unlikely that the circumstances presently exist to produce an unreasonable increase in transportation costs with respect to shipping through the San Pedro Ports. Taken together, these events substantially resolve the issues underpinning the Commission's decision to bring this action, and render unnecessary the injunctive relief sought by the Commission before Judge Leon.

Chairman Joseph E. Brennan stated: “While today's action remains subject to approval of the U.S. District Court, I am gratified that we have taken this step to clear the path for the Ports' Clean Trucks Programs.”