ELR Citation: 41 ELR 20301
No(s). 10-56465 (9th Cir. Sep 26, 2011)

The Ninth Circuit reversed in part a lower court decision upholding a "Clean Truck Program" adopted by a California port designed in part to reduce emissions related to port operations, including emissions from trucks. The concession agreements implementing the plan set forth a number of provisions covering, among other things, employee drivers, off-street parking, maintenance, placards, and financial capability. A trucking association argued that the Federal Aviation Administration Authorization Act (FAAA Act) preempted these provisions, but the lower court rejected its claims. The association appealed. The Ninth Circuit affirmed the lower court's holdings that the financial capability, maintenance, off-street parking, and placard provisions are not preempted by the FAAA Act. But it reversed the lower court's conclusion that the employee-driver provision is saved from preemption by the market participant doctrine. The employee-driver provision requires concessionaires to gradually transition to using 100% employee drivers in lieu of independent owner-operators over the next five years. Because this provision seeks to impact third-party behavior unrelated to the performance of the concessionaire's obligations to the port, it is "tantamount to regulation" and does not fall under the market participant exception.