The Ninth Circuit Court of Appeals, in a 2-1 decision, has ruled that a Port of Los Angeles clean trucks-program element, which requires that trucking companies only use drivers who are company employees, is preempted by the Federal Aviation Administrative Authorization Act (Act). Am. Trucking Ass’ns, Inc. v. The City of Los Angeles, No. 10-56465 (9th Cir. 9/26/11). So ruling, the appeals court reversed just part of a district court decision and otherwise upheld the port’s program barring high-emitting diesel trucks from its facilities.

The Port of Los Angeles sought to phase out the use of independent owneroperators over five years; because it controls port operations, it is a market participant and subject to the Act’s motor carrier exception provision. According to the court’s majority, however, the employee-driver mandate “seeks to impact third-party behavior unrelated to the performance of the concessionaire’s obligations,” and “is tantamount to regulation, and thus does not fall under the marketing participant exception.” The dissent argued that the employee-driver mandate falls within the market participant exception to preemption, and therefore preemption does not apply.