FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMERICAN TRUCKING ASSOCIATIONS,
INC.,
Plaintiff-Appellant,
v.
THE CITY OF LOS ANGELES; THE
HARBOR DEPARTMENT OF THE
CITY OF LOS ANGELES; THE
BOARD OF HARBOR No. 08-56503
COMMISSIONERS OF THE CITY OF LOS D.C. No.
ANGELES; THE CITY OF LONG
BEACH; THE HARBOR
2:08-CV-04920-
CAS-CT
DEPARTMENT OF THE CITY OF LONG
BEACH; THE BOARD OF HARBOR OPINION
COMMISSIONERS OF THE CITY OF
LONG BEACH,
Defendants-Appellees,
NATURAL RESOURCES DEFENSE
COUNCIL; SIERRA CLUB;
COALITION FOR CLEAN AIR, INC.,
Defendant-intervenors-Appellees.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
March 4, 2009—Pasadena, California
Filed March 20, 2009
Before: Robert R. Beezer, Ferdinand F. Fernandez, and
Richard A. Paez, Circuit Judges.
3567
3568 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
Opinion by Judge Fernandez
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3571
COUNSEL
Christopher C. McNatt Jr., Scopelitis, Garvin, Light, Hanson
& Feary, LLP, Pasadena, California; Robert Digges, Ameri-
can Trucking Associations, Inc., Arlington, Virginia, for the
plaintiff-appellant.
C.Jonathan Benner, Troutman Sanders, LLP, Washington,
DC; Steven S. Rosenthal, Kaye Scholer LLP, Washington,
DC, for the defendants-appellees.
David Pettit, Natural Resources Defense Council, Santa Mon-
ica, California, for the intervenors-appellees.
Karyn A. Booth, Thompson Hine LLP, Washington, DC, for
the amicus, The National Industrial Transportation League.
Melissa N. Patterson, Department of Justice, Appellate Staff
Civil Division, Washington, DC, for the amicus, the United
States of America.
Timothy R. Patterson, Office of the Attorney General of Cali-
fornia, Oakland, California, for the amicus, the State of Cali-
fornia.
Jeffrey Bossert Clark, Kirkland & Ellis, LLP, Washington,
DC, for the amicus, National Association of Waterfront
Employers.
3572 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
OPINION
FERNANDEZ, Circuit Judge:
INTRODUCTION
American Trucking Associations, Inc. (“ATA”), a non-
profit national trade association for the trucking industry,
appeals from the district court’s refusal to preliminarily enjoin
the implementation of mandatory concession agreements for
drayage trucking services at the Port of Los Angeles1 and the
Port of Long Beach2 (together the “Ports”). ATA sought to
enjoin the programs as preempted by the Federal Aviation
Administration Authorization Act, 49 U.S.C. § 14501(c) (the
“FAAA Act”), because they improperly attempted to regulate
the “price, route, or service of any motor carrier.” 49 U.S.C.
§ 14501(c)(1). The district court concluded that the agree-
ments likely fell within a statutory exception preserving the
“safety regulatory authority of a State with respect to motor
vehicles.” Id. § 14501(c)(2)(A). It also concluded that ATA
failed to demonstrate irreparable harm absent an injunction
and that the balance of hardships and public interest weighed
against imposing an injunction.3 We reverse and remand.
BACKGROUND
The Ports of Los Angeles and Long Beach are contiguous
and effectively form a single port on San Pedro Bay bisected
by the Los Angeles-Long Beach city boundary. They occupy
1
The Port of Los Angeles is owned and operated by the City of Los
Angeles, and management is vested in the Board of Harbor Commission-
ers of the City (the Los Angeles Board).
2
The Port of Long Beach is owned and operated by the City of Long
Beach, and management is vested in the Board of Harbor Commissioners
of the City (the Long Beach Board).
3
Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 577 F. Supp. 2d 1110
(C.D. Cal. 2008) (Am. Trucking I).
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3573
land that was granted by the State of California to the Cities
of Los Angeles and Long Beach via the California Tidelands
Act, and the Ports hold the land in trust for the benefit of the
people of California. Each Port is managed by its respective
Board of Harbor Commissioners. The Ports act as “landlords”
by developing terminal facilities that are then leased to ship-
ping lines and stevedoring companies. The Ports’ revenue
comes from fees those operators pay to occupy port space.
The Port of Los Angeles handles more containerized cargo
than any other domestic port and the two ports combined han-
dle over 40% of the containerized goods in United States for-
eign commerce. Motor carriers,4 like the constituents of ATA
(which has tens of thousands of affiliated members), dray this
cargo from ships to customers, to off-dock terminals, or to
railheads for further transport. Motor carriers do not contract
with the Ports; instead, they contract directly with end-users,
ocean carriers, railroads, or others in the transport chain. ATA
members rely largely on independent truck owner-operators
as subcontractors to provide drayage at the Ports. One Port
study estimated that 85% of drayage drivers are independent
contractors, rather than employees, and ATA estimates that
number as closer to 98%.
Each Port’s respective Drayage Services Concession
Agreement (“Concession agreement”) requirements went into
effect on October 1, 2008, as part of the Ports’ Clean Trucks
Program. The Program is composed of three main parts: (1)
a progressive truck ban that prohibits pre-1989 trucks; (2) the
Concession agreements; and (3) a container fee to finance the
billions of dollars necessary to subsidize modernizing the
truck fleet. The Los Angeles Board’s tariff Order No. 6956,
4
A “motor carrier” is an individual, a partnership, or a corporation
engaged in the transportation of goods; those engaged in interstate com-
merce are subject to, inter alia: Department of Transportation regulations;
the Motor Carrier Acts, see, e.g., 49 U.S.C. § 13902; and the Motor Car-
rier Safety Acts, see, e.g., 49 U.S.C. §§ 31136, 31142.
3574 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
adopted at the same time as the resolution approving the Los
Angeles Port Concession agreement, states that the Conces-
sion agreement was designed to:
(a) further the improvement of air quality at the Port,
(b) create an efficient, reliable supply of drayage ser-
vices to the Port for the sustainable future, (c) estab-
lish performance criteria for providers of drayage
services that promote the Port’s business objectives,
(d) ensure sufficient supply of drayage drivers, by
improvement of wages, benefits, and working condi-
tions, (e) enhance Port security and safety, and (f)
reduce negative impacts on the local community.
The Ports admit that environmental concerns were the “princi-
pal motivating factor” of the Clean Trucks Program.5
Though similar, the Concession agreements differ in some
respects. The Port of Los Angeles Concession agreement
requires that motor carriers: (1) remain licensed and in good
standing while operating at the Port; (2) enter, verify, and
update identifying information for each truck and driver; (3)
ensure that permitted trucks are equipped with a Radio Fre-
quency Identification Device to be read when a truck enters
a terminal; (4) transition over the course of five years from
independent-contractor drivers to employees of each licensed
motor carrier;6 (5) provide off-street parking outside the Port;
and (6) submit a maintenance and parking plan for each truck.
Each permitted motor carrier must also comply with federal
and state law, must obtain automobile liability insurance and
worker’s compensation insurance, and must agree to safety
and security inspections and audits and file numerous reports.
5
Intervenor-Appellee Natural Resources Defense Council, Inc.
(“NRDC”) chronicles at length the environmental purposes of the Conces-
sion agreements, i.e., to protect the “public health.”
6
The City of Los Angeles Concession agreement requires at least a 20%
transition by the end of the fourth quarter of 2009.
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3575
Each carrier must pay an initial $2,500 concession fee and a
$100 annual administration fee per truck.
The Concession agreement for the Port of Long Beach
requires that permitted motor carriers: (1) comply with state
and federal law; (2) enter and update information for trucks
and drivers; (3) ensure that permitted trucks are equipped with
a Radio Frequency Identification Device; (4) provide proof
that it informs drivers of available health insurance; (5) ensure
that drivers properly maintain trucks and comply with laws
regulating on-street parking and truck routes; (6) maintain
general liability and automobile liability insurance; (7) permit
safety and security inspections; (8) must agree to audits and
file numerous reports; and (9) pay an initial $250 fee and
$100 annual fee per truck. The Concession agreement for the
Port of Long Beach does not include the provision requiring
transition from independent contractors to employee-drivers.
Nor does it require off-street parking of trucks.
Both agreements require motor carriers to give hiring pref-
erences to drivers with port service histories and post open-
ings with the Ports’ Workforce Development Office. Both
agreements require financial disclosures: They compel pub-
licly held companies to disclose annual reports, SEC filings,
and pending legal actions, and privately held companies to
disclose balance sheets, income tax statements, and pending
legal actions.
The Ports claim that the Concession agreements address
security concerns. For example, the Ports say that they have
little good information on trucks and drivers, and the driver
and truck tracking measures address that gap. In the promul-
gation history of the Clean Trucks Program, the Los Angeles
Board stated that the Concession agreement requirement was
“designed to assure ongoing safety [and] security” and would
yield “increased safety and security [through] accountability
and control of the Concessionaires as employers of their
employee drivers to a degree not possible with casual or inde-
3576 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
pendent drivers . . . .” Los Angeles Board Resolution 6522.
The Port of Los Angeles’s Deputy Executive Director stated:
[T]he drayage concession contracts provide the Port
with the tools to better secure itself from threats
involving the use of heavy-duty trucks as a means to
transport illicit or dangerous materials into or out of
the Port. The concession contracts enhance Port
security by contractually allowing [the Port of Los
Angeles] to: (1) collect identifying information for
the driver, the truck, the cargo, and the responsible
company for each truck entering [the Port’s] termi-
nals; (2) correlate each piece of information with the
other pieces for a given truck visit; and (3) make one
entity, the [motor carrier], which is the entity coordi-
nating drayage truck movements, wholly responsible
for providing the information and verifying its accu-
racy.
The Los Angeles Board included the independent contrac-
tor phase-out based on stated concerns that “[s]erious and
long-standing safety problems also exist as a consequence of
unsafe, negligent or reckless driving of trucks on the Port or
on public roads and highways accessing the Port,” and seeks
to shift the access and identity tracking to motor carriers
because it is “more practical and effective to require that
motor carriers enforce such requirements against their own
drivers.” Los Angeles Board Resolution 6522. The Board jus-
tified the parking restrictions on residential streets because
“truck traffic through the nearby neighborhoods has subjected
neighborhood residents to adverse impacts from high levels of
air pollution, noise, and safety hazards,” which would alleg-
edly be “substantially reduced” if drayage trucks “were
required to park in designated truck parking areas that are
physically separated from residential areas.” Id.
ATA points out that the actual alleged “safety” features of
the Concession agreements are duplicative of requirements
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3577
already imposed by federal and state law, such as tracking
driver information in the Drayage Truck Registry, ensuring
compliance with state and federal safety standards, keeping
driver records in the federal Transportation Worker Identifica-
tion Credential (“TWIC”) program, and ensuring compliance
with state and federal security requirements. ATA does not
object to the purport of those elements. ATA’s objection lies
with the additional components of the Concession agree-
ments, which the Los Angeles Board at one point described
as creating a “market characterized by the presence of fewer,
generally larger and more stable” licensed motor carriers. Los
Angeles Board Resolution 6522.
ATA filed this action on July 28, 2008, claiming that the
FAAA Act preempted the Concession agreements7 and that
the agreements unduly burdened interstate commerce in viola-
tion of the Commerce Clause.8 Soon thereafter, ATA filed a
motion for a preliminary injunction to stop the Ports’ enforce-
ment of the Concession agreement programs (due to take
effect on October 1, 2008). ATA asserted the ground of pre-
emption. The district court declined to issue a preliminary
injunction. First, in a ruling left unchallenged in this appeal,
the district court held that ATA could likely demonstrate that
the Concession agreements “related to a price, route, or ser-
vice” of motor carriers and thus, unless saved by an excep-
tion, were preempted by the FAAA Act. See 49 U.S.C.
§ 14501(c)(1). However, without addressing each specific
provision of the Concession agreements, the district court
7
As relevant here, the FAAA Act provides:
[A] State, political subdivision of a State, or political authority of
2 or more States may not enact or enforce a law, regulation, or
other provision having the force and effect of law related to a
price, route, or service of any motor carrier . . . or any motor pri-
vate carrier, broker, or freight forwarder with respect to the trans-
portation of property.
49 U.S.C. § 14501(c)(1).
8
U.S. Const. art. I, § 8, cl. 3.
3578 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
held that ATA would not likely show that the agreements
were unrelated to regulating the safety of motor carriers, so
the agreements were saved by § 14501(c)(2)(A).9 The district
court did find that ATA would likely demonstrate that the
Ports were not acting as market participants by implementing
the Concession agreements. However, it also concluded that
ATA could not demonstrate irreparable harm and that the bal-
ance of hardships and the public interest weighed against issu-
ing an injunction.
As of October 1, 2008, any motor carrier out of compliance
with a Port’s Concession agreement has been barred from
entering that Port. ATA claims its members will suffer short-
term and long-term capital losses and injuries to business
goodwill. Still, some motor carriers have, in fact, entered into
Concession agreements.
JURISDICTION AND STANDARDS OF REVIEW
The district court had jurisdiction pursuant to 28 U.S.C.
§ 1331. We have jurisdiction pursuant to 28 U.S.C.
§ 1292(a)(1).
We review the grant or denial of a preliminary injunction
for abuse of discretion. Lands Council v. Martin, 479 F.3d
636, 639 (9th Cir. 2007). Our review is “ ‘limited and defer-
ential,’ and ‘[w]e do not review the underlying merits of the
case.’ ” Id. Nevertheless, a district court “ ‘necessarily abuses
9
That subsection provides that the preemption provision
shall not restrict the safety regulatory authority of a State with
respect to motor vehicles, the authority of a State to impose high-
way route controls or limitations based on the size or weight of
the motor vehicle or the hazardous nature of the cargo, or the
authority of a State to regulate motor carriers with regard to mini-
mum amounts of financial responsibility relating to insurance
requirements and self-insurance authorization.
49 U.S.C. § 14501(c)(2)(A).
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3579
its discretion when it bases its decision on an erroneous legal
standard or on clearly erroneous findings of fact.’ ” Id. Stated
differently, “ ‘[a]s long as the district court got the law right,
it will not be reversed simply because the appellate court
would have arrived at a different result if it had applied the
law to the facts of the case.’ ” Wildwest Inst. v. Bull, 472 F.3d
587, 590 (9th Cir. 2006).
We review the district court’s decision regarding preemp-
tion and its interpretation and construction of a federal statute
de novo. Californians for Safe & Competitive Dump Truck
Transp. v. Mendonca, 152 F.3d 1184, 1186 (9th Cir. 1998);
Tocher v. City of Santa Ana, 219 F.3d 1040, 1045 (9th Cir.
2000), abrogated on other grounds by City of Columbus v.
Ours Garage & Wrecker Serv., Inc., 536 U.S. 424, 431-32,
122 S. Ct. 2226, 2232, 153 L. Ed. 2d 430 (2002).
DISCUSSION
[1] As we have already noted, the question before us is
whether we should overturn the district court’s denial of a
preliminary injunction to ATA. In so doing, we must follow
the Supreme Court’s recent expatiation on the proper standard
for granting or denying that form of relief. See Winter v. Nat-
ural Res. Def. Council, Inc., ___ U.S. ___, 129 S. Ct. 365,
172 L. Ed. 2d 249 (2008). In Winter, the Court reversed one
of our decisions, which, it determined, upheld a grant of a pre-
liminary injunction by use of a standard that was much too
lenient. Id. at ___, 129 S. Ct. at 370. As the Court explained,
an injunction cannot issue merely because it is possible that
there will be an irreparable injury to the plaintiff; it must be
likely that there will be. Id. at ___, 129 S. Ct. at 375. It drove
that point home when it said: “Issuing a preliminary injunc-
tion based only on a possibility of irreparable harm is incon-
sistent with our characterization of injunctive relief as an
extraordinary remedy that may only be awarded upon a clear
showing that the plaintiff is entitled to such relief.” Id. at ___,
3580 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
129 S. Ct. at 375-76. The Court succinctly stated the rule to
be as follows:
A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits,
that he is likely to suffer irreparable harm in the
absence of preliminary relief, that the balance of
equities tips in his favor, and that an injunction is in
the public interest.
Id. at ___, 129 S. Ct. at 374.
[2] To the extent that our cases have suggested a lesser stan-
dard,10 they are no longer controlling, or even viable. The dis-
trict court applied our pre-Winter approach, but because it
denied relief that, itself, does not require reversal.
That said, we will now consider the question of whether the
Ports’ decisions to force motor carriers into the Concession
agreements will likely fall before the demands of federal pre-
emption as set forth in the FAAA Act. 49 U.S.C. § 14501(c)(1).11
I. Likelihood of Success on the Merits.
The Supremacy Clause provides that: “This Constitution,
and the Laws of the United States which shall be made in Pur-
suance thereof . . . shall be the supreme Law of the Land
. . . .” U.S. Const. art. VI, cl. 2. State laws that “interfere with,
or are contrary to, federal law” are, therefore, invalidated.
Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 498
F.3d 1031, 1039 (9th Cir. 2007) (internal quotation marks
omitted).
10
See, e.g., Lands Council, 479 F.3d at 639.
11
We decline to consider the amicus brief of National Association of
Waterfront Employers, which seeks to raise issues not raised or briefed by
the parties, see Day v. Apoliona, 496 F.3d 1027, 1035 n.11 (9th Cir. 2007),
and order it stricken.
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3581
[3] There can be no doubt that when Congress adopted the
FAAA Act, it intended to broadly preempt state laws that
were “related to a price, route or service” of a motor carrier.
49 U.S.C. § 14501(c)(1). In so doing, Congress intended to
avoid the spectacle of state and local laws reregulating what
Congress had sought to deregulate. See Rowe v. N.H. Motor
Transp. Ass’n, ___ U.S. ___, ____, 128 S. Ct. 989, 996, 169
L. Ed. 2d 933 (2008). And, as we have said, “A state or local
regulation is related to the price, route, or service of a motor
carrier if the regulation has more than an indirect, remote, or
tenuous effect on the motor carrier’s prices, routes or ser-
vices.” Tocher, 219 F.3d at 1047. That the Concession agree-
ments relate to prices, routes or services of motor carriers can
hardly be doubted. Thus, we fully agree with the district court
that it is likely that ATA will establish that proposition. See
Am. Trucking I, 577 F. Supp. 2d at 1116-18. In fact, the Ports
do not actually dispute that on appeal.
[4] As the district court recognized, that demonstrates a
likelihood that ATA will succeed on the merits unless some
exception to preemption applies here. We are satisfied that it
is likely that no exception applies.
A. The Non-Statutory Claims.
The Ports claim that their far-reaching Concession agree-
ments are not preempted because the Ports own the port land;
or because they are acting as market participants, even though
they are not buyers or sellers of drayage services; or because
it is a matter of efficient procurement, even though they do
not procure drayage services; or because, despite the breadth
of the regulations they seek to impose on the industry, the
Concession agreements are narrow in scope.
We agree with the district court that it is likely that ATA
will prevail on those points, and we commend the district
court’s cogent explanation to the reader of this opinion. See
id. at 1118-1123.
3582 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
B. The Statutory Exception.
[5] As we noted previously, there is a statutory exception
to preemption in this area, that is the preemption provision
“shall not restrict the safety regulatory authority of a State
with respect to motor vehicles . . . .” 49 U.S.C.
§ 14501(c)(2)(A). That leaves room for some state regulation,
but any regulation must be “genuinely responsive to safety
concerns.” City of Columbus v. Ours Garage & Wrecker
Serv., Inc., 536 U.S. 424, 442, 122 S. Ct. 2226, 2237, 153 L.
Ed. 2d 430 (2002); see also Tillison v. City of San Diego, 406
F.3d 1126, 1129 (9th Cir. 2005). This standard requires that
we consider intent. We must ask if the regulator “was acting
out of safety concerns.” Tillison, 406 F.3d at 1129. That is, we
must consider whether the purpose and intent was “truly safe-
ty.” Id. But that does not mean that we are required to take the
regulator at its word; we need to go further with the analysis.
See Tillison v. Gregoire, 424 F.3d 1093, 1104 (9th Cir. 2005).
We must still decide whether the regulation is genuinely
responsive to safety concerns. See Loyal Tire & Auto Ctr.,
Inc. v. Town of Woodbury, 445 F.3d 136, 145-47 (2d Cir.
2006).
Moreover, even if some kind of general public health con-
cerns are (or may be) involved in a statute or regulation — for
example control of cigarette usage — that alone does not
bring the regulation within the ambit of the motor vehicle
safety exception. See Rowe, ___ U.S. at ___, 128 S. Ct. at
996-97. Indeed, if too broad a scope were given to the concept
of motor vehicle safety, the exception would swallow the pre-
emption section itself or, at the very least, cut a very wide
swath through it.
While there is no bright line test for what is related to vehi-
cle safety, cases to date do give some guidance in that regard.
As we have already noted, the Supreme Court has declared
that a law which required carriers to meet a number of
requirements regarding cigarette delivery had a direct effect
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3583
on prices and services and was not a regulation of safety. It
was preempted. See id. at ___, 128 S. Ct. at 995.
Similarly, when Puerto Rico sought to enforce statutes that
imposed a number of controls upon motor carriers associated
with air carriers, the First Circuit Court of Appeals deter-
mined that they were preempted despite a claim that the con-
trols came within a safety exception similar to (actually the
same as)12 the one at hand. See United Parcel Serv., Inc. v.
Flores-Galarza, 385 F.3d 9, 13 (1st Cir. 2004). The court
said:
He [the Secretary of the Department of Treasury of
the Commonwealth of Puerto Rico] urges us to con-
clude that statutes that had required carriers to, inter
alia, keep documents and records required by the
Treasury Department, pay license fees, submit cop-
ies of their corporate officers’ criminal records, and
post a bond to secure payment of penalties imposed
by the Treasury Department, fall within this savings
clause because they are “directed at precluding carri-
ers from engaging or assisting in illegal conduct.”
This interpretation does not square with the plain
language of [the exception], which addresses the reg-
ulation of motor vehicles, and the Secretary cites no
authority that persuades us otherwise.
Id. at 13-14. We note that some of the provisions referred to
in United Parcel Service are hauntingly similar to some of the
requirements that the Ports sought to impose here.
On the other hand, regulation of tow truck services has
been found to be within the safety exception on the basis that
the statutory provisions were “designed to make the towing
and removal of vehicles safer.” Tocher, 219 F.3d at 1051; see
also Tillison, 424 F.3d at 1104-05 (same). But an ordinance
12
See 49 U.S.C. § 41713(b)(4)(B)(i).
3584 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
that required tow yards to be within a one-mile radius of the
police department was not genuinely responsive to motor
vehicle safety concerns. Loyal Tire, 445 F.3d at 148. On the
contrary, despite its stated safety purpose, the provision in
question was designed to exclude out of town businesses from
a rotating tow list. Id. at 146.
[6] Thus, when preemption is claimed, a court must pay
careful attention to the particular provisions that a state or
local entity seeks to impose upon motor carriers. Moreover,
the mere fact that one part of a regulation or group of regula-
tions might come within an exception to preemption does not
mean that all other parts of that regulation or group are also
excepted. See Tocher, 219 F.3d at 1050 (holding that although
part of the local law was saved under the municipal-proprietor
exception to preemption, the remainder of it was preempted).
Were it otherwise, a single valid excepted provision would
allow a vast amount of nonexcepted provisions to stand. That
is not the law. Unfortunately, the district court seemed to
believe it was. That led the district court into error, as we will
now explain.
We have already set out the list of purposes alleged to sup-
port the requirements of the Concession agreements, and have
also synopsized the gallimaufry of individual covenants
required of the motor carriers. When a court, as it must,
assesses each of those provisions, it must ask whether the
“ ‘purported safety justifications’ ” will withstand scrutiny.
Auto. Club of N.Y., Inc. v. Dykstra, 520 F.3d 210, 215 (2d Cir.
2008) (per curiam). It is not enough to say that the provision
might enhance efficiency, or reduce some kind of negative
health effects. The narrow question, again, is whether the pro-
vision is intended to be, and is, genuinely responsive to motor
vehicle safety. It is rather clear that some, indeed many, of the
provisions of the Concession agreements are not likely to live
in the light cast by that strobe.
[7] A mere reading of some of the stated purposes of the
Los Angeles Board, for example, underscores an extensive
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3585
attempt to reshape and control the economics of the drayage
industry in one of the largest ports in the nation. One of its
goals was to create a market of “fewer, generally larger, and
more stable [motor carriers] operating trucks” that may, by
adhering to the Ports’ emissions requirements, “enjoy compet-
itive advantages if they can earn solid reputations for main-
taining green operations.” Los Angeles Board Resolution No.
6522. Most notably:
Maintaining the existing market structure would
allow smaller [motor carriers] and [independent
contractor-drivers] to maintain unnecessarily dirty
operations under the cover of anonymity provided by
their large numbers and small size. Requiring that all
drivers be employees will also diminish the incen-
tives that smaller [motor carriers] might otherwise
have to avoid the true economic costs of their activi-
ties, in an effort to compensate for the greater effi-
ciency of larger, more responsible [motor carriers].
Id.
The record also demonstrates that another significant pur-
pose behind the Concession agreements was purely environ-
mental. Some trucks entering the Ports are old and polluting,
it was said, and the Ports and surrounding areas suffer from
serious air pollution. Thus, the Concession agreements sought
to ameliorate those adverse environmental effects by forcing
a direct contractual relationship upon the motor carriers, by
mandating vehicle maintenance requirements, and by enhanc-
ing motor carrier efficiency while creating incentives for con-
cessionaires to use clean and efficient trucks.
In pursuit of these objectives, the Port of Los Angeles Con-
cession agreement mandates the phasing out of thousands of
independent contractors (many or most of them small busi-
nessmen who own their own trucks). In an attempt to justify
this, the Port argues that there are “[s]erious and longstanding
3586 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
safety problems” because of “unsafe, negligent or reckless
driving” that has subjected the Port to “a risk of financial lia-
bility and moral culpability for failure to act to control actions
by third parties.” Those concerns would allegedly be amelio-
rated because requiring employee drivers will provide “con-
trol [to] the concessionaires as employers of their employee
drivers to a degree not possible with casual or independent
drivers.” We see little safety-related merit in those thread-
paper arguments, which denigrate small businesses and insist
that individuals should work for large employers or not at all.
[8] As it is, the record demonstrates that the Ports’ primary
concern was increasing efficiency and regulating the drayage
market. For example, the employee model “is the easiest
model to administer” because of the “administrative cost of
maintaining up-to-date records” for tens of thousands of inde-
pendent contractors. Moreover, one of the Port’s stated goals
was to “ensure sufficient supply of drayage drivers by
improvement of wages, benefits, and working conditions.”
Furthermore, the Port felt that its insistence on that particular
employment structure would ensure that the Ports’ “invest-
ments” in retrofitted trucks “will be better protected” because
“Concession motor carriers use only their own employee[s] to
drive Port-funded trucks.” The Los Angeles Board also
sought to alter the allocation of costs. It said that for indepen-
dent contractors, the costs are externalized, but if they were
employees, the costs would be borne by their motor carrier
employers. In short, far from regulating motor vehicle safety,
“requiring concession motor carriers to use only their own
employees for truck drayage at the Port will contribute to the
administrative efficiency and reduce the cost of the Clean
Truck Program.”
[9] Thus, as we see it, the independent contractor phase-out
provision is one highly likely to be shown to be preempted.
But there are other provisions that are likely to be preempted
as well. For example, the job posting and experienced-drivers-
first requirement in both Ports’ Concession agreements have
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3587
little or nothing to do with vehicle safety. Although those pro-
visions might have some slight tendency to ensure that drivers
have a proven safety record and can be trusted to conduct
business at the Ports, it is likely that the Ports are imposing
the requirements in order to force drayage carriers to hire cer-
tain preferred workers over others, on the theory that new
drivers are not as reliable as old drivers. It is a rather blatant
attempt to decide who can use whom for drayage services,
and is a palpable interference with prices and services. Nei-
ther motor carriers nor their customers (the enormous inter-
state and foreign shipping industry) would be able to select
those with whom they would choose to contract. Port desires
for alleged efficiency, not the marketplace, would decide
those questions.
Moreover, it is not likely that the financial disclosure
requirements in both Ports’ agreements could be justified
under any conceivable safety rationale. Those provisions
require disclosures of annual reports, SEC filings, balance
sheets, income tax statements, and pending legal actions. The
Ports make no effort to explain how a motor carrier’s finan-
cial viability touches at all on the safety of the motor vehicle.
Similarly, the Port of Long Beach agreement requires motor
carriers to notify drivers of available health insurance. Again,
this has no discernable safety purpose.
Finally, it is likely that the on-street parking ban in the Port
of Los Angeles Concession Agreement is not genuinely
responsive to safety. While restrictions on parking could be
responsive to the safety of drivers and individuals in the sur-
rounding neighborhoods in some sense (though it is not clear
how), the Port of Los Angeles bans trucks from parking
legally on streets where other trucks are free to park. Thus,
any potential safety rationale for restricting on-street parking
is seriously undermined, and it is likely that this provision
would not withstand scrutiny. Similarly, just how the Port of
Long Beach can set out to regulate compliance with parking
3588 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
and truck routes which are not on Port property is a bit of a
mystery.
[10] In short, the district court legally erred in not examin-
ing the specific provisions of the Concession agreements, and
it is likely that many of those provisions are preempted. The
total denial of relief cannot be based on the theory that it is
unlikely that ATA will succeed on the merits in those respects
at least.13
II. Likelihood of Irreparable Harm.
Although we are of the opinion that ATA has shown the
likelihood that it will prevail on the merits, at least as to some
of the provisions of the Concession agreements, it is not enti-
tled to relief unless it can also show the likelihood of irrepara-
ble harm. The district court determined that ATA could not do
so; we disagree.
The district court correctly noted that the motor carriers had
two choices: Sign the Concession agreements, or refuse to
sign them. If they sign, said the court, the harm will merely
be monetary,14 and that will not usually support injunctive
relief.15 On the other hand, said the court, if they do not sign,
13
ATA also argues that to the extent the Ports are attempting to regulate
motor vehicle safety, that is preempted by California law, which gives the
California Highway Patrol exclusive jurisdiction over “the regulation of
safety of operation of motor carriers of property.” Cal. Veh. Code
§ 34623(a); see also Cal. Veh. Code § 21. There is precious little Califor-
nia authority on the subject. See 47 Op. Att’y Gen. Cal. 191, 192 (1966);
see also United States v. Kiliz, 694 F.2d 628, 630-32 (9th Cir. 1982).
Moreover, the Attorney General of the State of California has filed an
amicus brief in which he suggests the contrary. We, therefore, are unable
to declare at this stage of the proceeding that ATA will likely prevail on
that argument. Nor need we.
14
Am. Trucking I, 577 F. Supp. 2d at 1126.
15
See L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d
1197, 1202 (9th Cir. 1980).
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3589
any harm is merely speculative,16 and that, also, will not sup-
port injunctive relief, although a loss of goodwill and reputa-
tion can do so.17 We disagree on both counts because it
appears that the motor carriers are being put to a kind of Hob-
son’s choice, not entirely unlike that which faced the airlines
in Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112
S. Ct. 2031, 119 L. Ed. 2d 157 (1992). There, after deregula-
tion of the airlines, the attorneys general of several states set
out to regulate airline advertising and the compensation of
passengers who gave up their seats on overbooked flights. Id.
at 379, 112 S. Ct. at 2034. The Court pointed to the availabil-
ity of injunctive relief where there was a threat of imminent
proceedings by a state of a criminal or civil enforcement
nature against parties who were affected by an unconstitu-
tional act. Id. at 380-81, 112 S. Ct. at 2035. The Court opined
as follows:
As we have described, the attorneys general of seven
States, including petitioner’s predecessor, had made
clear that they would seek to enforce the challenged
portions of the guidelines (those concerning fare
advertising) through suits under their respective state
laws. And Texas law, at least, imposes additional lia-
bility (by way of civil penalties and consumer treble-
damages actions) for multiple violations. . . .
[R]espondents were faced with a Hobson’s choice:
continually violate the Texas law and expose them-
selves to potentially huge liability; or violate the law
once as a test case and suffer the injury of obeying
the law during the pendency of the proceedings and
any further review.
Id. at 381, 112 S. Ct. at 2035-36 (citations omitted).
16
Am. Trucking I, 577 F. Supp. 2d at 1126-27.
17
See Rent-A-Center, Inc. v. Canyon Tele. & Appliance Rental, Inc., 944
F.2d 597, 603 (9th Cir. 1991).
3590 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
While the case at hand lacks the precise penalty issues
involved in Morales, a very real penalty attaches to the motor
carriers regardless of how they proceed. That is an imminent
harm.
[11] A motor carrier can refuse to sign the likely unconsti-
tutional Concession agreements, and what will ensue, accord-
ing to the record, is at the very least a loss of customer
goodwill — or, indeed, of the carrier’s whole drayage busi-
ness. It is apparent that a carrier could not pick up a custom-
er’s goods at the Ports, if it could not even get to those goods.
That goodwill would evaporate does not appear speculative at
all. In fact, it is likely that all of that part of the carrier’s busi-
ness will evaporate, even if it does other things elsewhere. As
to smaller companies that cannot afford the vast increase in
capital requirements for the purchase of equipment and per-
sonnel expenditures needed to turn independent contractors
into employees, the result would likely be fatal. And that
means that those smaller carriers, and their employees, and
even independent contractors who depend upon them, will be
out of work. One wonders why it should be thought that they
should just put up with the loss any more than employees of
a company should be forced to abide their wrongful termina-
tion and the resulting emotional damages and stress that ter-
mination causes. See Nelson v. NASA, 530 F.3d 865, 882 (9th
Cir. 2008).
If a motor carrier, however, signs a Concession agreement,
or both Concession agreements, its plight is not much better.
First, it will have been forced to sign an agreement to condi-
tions which are likely unconstitutional because they are pre-
empted. Second, especially as to the Los Angeles Port
Concession agreement, the carrier will be forced to incur large
costs which, if it manages to survive those, will disrupt and
change the whole nature of its business in ways that most
likely cannot be compensated with damages alone. If the Con-
cession agreements were then held to be unconstitutional, it
would be faced with either continuing in that form, or, to the
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3591
extent it could, unwinding that and returning to the old form.
Nor is the fact that the Los Angeles Port Concession Agree-
ment employment provision is scheduled to phase in over a
five-year period of any help. Even then, employment must
equal twenty percent by the end of 2009, but, as ATA points
out, that does not mean that a motor carrier can simply flip a
switch at the end of 2009 and have employees rather than
independent contractors. It will, instead, be forced into mak-
ing substantial changes commencing immediately. The same
is true of requirements for obtaining parking space, and pro-
viding reports and information and the like.
[12] As the above underscores, the Los Angeles Port Con-
cession agreement is the most disruptive and is likely to cause
the most harm regardless of which choice a motor carrier
makes. The Long Beach Port Concession agreement is less so.
Still and all, if rejected by a motor carrier, the carrier will face
the problems already noted. If accepted, the agreement will
likely force the motor carrier to adhere to unconstitutional
conditions and will cause a good deal of economic harm in
the interim. But, although there is less disruption, the constitu-
tional violation alone, coupled with the damages incurred, can
suffice to show irreparable harm. The Supreme Court has
implied as much. See Morales, 504 U.S. at 381, 112 S. Ct. at
2035-36 (referring to the injury from obeying an unconstitu-
tional law); see also Nelson, 530 F.3d at 882 (holding that
“constitutional violations cannot be adequately remedied
through damages”). In short, motor carriers should not be
required to adhere to the various unconstitutional provisions
in the Ports’ agreements, and are likely to suffer irrevocably
if forced to do that or give up their businesses.
[13] We end this part of the discussion essentially where
we began, but here with a quotation (or with all of the
changes we have wrought, really a paraphrase) of what we
said in Nelson, 530 F.3d at 881-82 (citations omitted):
Appellants . . . face a stark choice — either violation
of their constitutional rights or loss of their [busi-
3592 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
nesses]. The district court erroneously concluded
that Appellants will not suffer any irreparable harm
because they could be retroactively compensated for
any temporary [loss or expenses]. It is true that
“monetary injury is not normally considered irrepa-
rable,” and the [motor carriers] who choose to give
up their [businesses] may later be made whole finan-
cially if the policy is struck down. However, in the
meantime, there is a substantial risk that a number of
[motor carriers] will not be able to finance such a
principled position and so will be coerced into sub-
mitting to the allegedly unconstitutional [Concession
agreements]. Unlike monetary injuries, constitutional
violations cannot be adequately remedied through
damages and therefore generally constitute irrepara-
ble harm. Moreover, the loss of one’s [business]
does not carry merely monetary consequences; it
carries emotional damages and stress, which cannot
be compensated by mere back payment of [losses].
Therefore, there is a likelihood of irreparable damages in this
case.
III. Balance of Equities; The Public Interest.
In Part II we have outlined the hardships that motor carriers
will suffer if, as is likely, many provisions of the Concession
agreements are preempted and are, thus, being imposed in
violation of the Constitution.
On the other side, it must be admitted that the Ports do have
significant concerns, which cannot be ignored. Still and all,
with or without the Concession agreements, many other pro-
grams and laws designed to alleviate those problems are in
existence and are not challenged. For example: The Drayage
Truck Registry program, the Transportation Worker Identifi-
cation Credential program,18 the remainder of the Clean
18
33 C.F.R. § 101.514.
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3593
Trucks Program, the Port Check program and the PierPass
program would not be affected. Nor, of course, would any
other general laws regarding anti-terrorism considerations,
driving, parking, and the environment be affected. Of course,
that does not necessarily mean that the Ports could not seek
even more protection in a constitutional manner, but it does
mean that the hardship to the Ports will be reduced between
now and the final resolution of this litigation.
[14] Based on the above, we are constrained to say that the
district court abused its discretion when it determined that the
balance of hardships weighed in favor of the Port of Los
Angeles and the Port of Long Beach.
[15] Similarly, while we do not denigrate the public interest
represented by the Ports, that must be balanced against the
public interest represented in Congress’ decision to deregulate
the motor carrier industry, and the Constitution’s declaration
that federal law is to be supreme. Again, in light of all we
have written above, we determine that the district court did
abuse its discretion when it declared that issuing a preliminary
injunction as to the Concession agreements would not be in
the public interest.
[16] Therefore, at this time and on this record we are satis-
fied that the balance of equities and the public interest do
weigh in favor of a preliminary injunction in this case as to
at least portions of the Concession agreements.
IV. Severance.
While we think it likely that many of the provisions of the
Concession agreements will be preempted and should be sub-
ject to the strictures of a preliminary injunction, we are not
prepared to hold that every provision must be preempted.
As it is, the agreements contain severance provisions19 and,
19
Each provision appears as Part VIII and reads as follows: “Should any
part of this Concession be determined by court or agency of competent
3594 AMERICAN TRUCKING ASSOC. v. LOS ANGELES
in general, those kinds of provisions are respected. See, e.g.,
Davies v. Grossmont Union High Sch. Dist., 930 F.2d 1390,
1400 (9th Cir. 1991). Thus, we will not direct that the Conces-
sion agreements be enjoined in their entirety at this time.
However, we are aware of the fact that if major portions of
the agreements are enjoined, it may not be practicable to leave
the remaining portions standing. See United States v. Man-
ning, 527 F.3d 828, 840 (9th Cir. 2008) (statute had a savings
clause, but because the “most significant” parts were excised,
the whole was preempted); see also Nat’l Adver. Co. v. City
of Orange, 861 F.2d 246, 250 (9th Cir. 1988) (partial invali-
dation of ordinance was appropriate based on the intent of the
City and the fact that the remainder of the ordinance could
still “function effectively”).
[17] We, therefore, leave it to the district court on remand
to determine whether a preliminary injunction should run
against all or only a portion of each Concession agreement.
CONCLUSION
We conclude that the Concession agreements of both the
Ports will likely be found to be preempted in whole or in part.
The Port of Los Angeles Concession agreement does over-
reach considerably more than does the Port of Long Beach
Concession agreement. However, each is likely to result in at
least some irreparable harm to the motor carriers, and, on bal-
ance, the district court abused its discretion when it denied a
preliminary injunction as to significant parts of the agree-
ments. While we have pointed to a number of provisions
which may be invalid and cause irreparable harm, we, of
jurisdiction to be unenforceable, unlawful, invalid, or subject to an order
of temporary or permanent injunction from enforcement, such determina-
tion shall only apply to the specific provision and the remainder of this
Concession shall continue in full force and effect.”
AMERICAN TRUCKING ASSOC. v. LOS ANGELES 3595
course, leave it to the district court to decide the validity of
each of those in the first instance and to decide the separabil-
ity of each from the remainder of each Concession agreement.
However, we do note that the Los Angeles Port’s independent
contractor phase-out provision is highly likely to be found
preempted and enjoined.
We reverse the district court’s decision as to the Conces-
sion agreements, and remand for further consideration of the
specific terms of each agreement and for the issuance of an
appropriate preliminary injunction. The district court shall
proceed as quickly as possible so that ATA will not suffer
unnecessary harm from any unconstitutional provisions.
REVERSED and REMANDED. No petition for rehearing
will be entertained and the mandate shall issue forthwith.