Preemptive Strike: Law in the Campaign for Clean Trucks

4 UC Irvine Law Review 939 (2015)

UCLA School of Law Research Paper No. 15-01

229 Pages Posted: 30 Jan 2015

See all articles by Scott L. Cummings

Scott L. Cummings

University of California, Los Angeles (UCLA) - School of Law

Date Written: January 14, 2015

Abstract

This article examines how social movements mobilize law in struggles to extend labor rights to low-wage workers formally outside their scope. It does so by documenting and analyzing the epic campaign to raise labor standards in the trucking industry at the nation’s largest port complex in Los Angeles and Long Beach. This campaign emerged as a fight over air quality but ultimately advanced as a local policy struggle over working conditions for roughly 16,000 port truckers — a group of primarily low-income, immigrant drivers operating as independent contractors. The campaign culminated in passage of the landmark 2008 Clean Truck Program, which committed trucking companies seeking to enter the Los Angeles port to a double conversion: of dirty to clean fuel trucks (thus reducing pollution) and of independent contractor to employee drivers (thus enabling unionization). Yet the victory was never fully realized. The program’s labor centerpiece — employee conversion — was invalidated by an industry preemption challenge under trucking deregulation law. As a result, the policy gains from a blue-green campaign built on mutual interest were split apart and reallocated, resulting in environmental victory but labor setback.

The article offers a comprehensive account of the campaign — built from original interviews, public records review, and campaign archive research — to explore how law operates both as a powerful tool and formidable barrier in local labor movement challenges to low-wage work. It begins by mapping the legal box within which port truckers operated: transformed by deregulation into independent contractors whom labor and antitrust law barred from union organizing. Getting out of that box — restoring truckers to the baseline of being organizable as employees — was labor’s central goal. The article then analyzes why and how this goal was pursued at the city level, and how it was shaped in response to the threat of federal preemption. As a municipal entity, the port raised the political possibility of labor lawmaking, but also the legal problem of nonlabor preemption. The legal solution came from outside of the labor field, in a seminal environmental lawsuit against port expansion, which presented a moment of labor-environmental interest convergence and provided the Clean Truck Program’s central legal rationale: because independent truckers could not afford to acquire and maintain clean fuel trucks, the port had a market-based interest in making trucking companies internalize their labor costs to promote sustainable emission reductions. The blue-green coalition that emerged wove environmental compliance into a tapestry of labor reform: leveraging the power of environmental litigation to create space for policy negotiation, linking clean trucks to employee conversion, and nesting conversion in a local ordinance built on the port’s concession power. Movement lawyering facilitated the local policy making process by supporting a reading of federal preemption doctrine that located reform squarely within the market participation exception.

That this reading was ultimately rejected in court frames outcome evaluation against the backdrop of the campaign’s calculation of risk and reward. For labor, the Clean Truck Program represented a most coveted prize: the power to contract around the independent-contractor problem that had stymied union efforts for more than three decades — and raising the tantalizing possibility of organizing the logistics supply chain. The political risks, however, were unevenly distributed, with port truckers themselves in a most precarious position. With the stakes so high, labor’s strategic gambit was to join labor and environmental claims to build local political power and hedge legal risk. While this move strengthened the program in the policy arena, it exposed legal fractures in court. Although these fractures were anticipated by movement lawyers, they were accentuated by industry litigation strategy. Countermobilization clawed local policy back into federal court, where industry was able to control the legal frame to divide and conquer: foregoing challenge to the program’s green provision (clean truck conversion) in order to preempt the blue (employee conversion). This final outcome reflected initial legal strength: because environmental law was the most potent weapon in resisting port growth, mitigating environmental harm was viewed as most central to the port’s legal authority to enact reform. In the end, labor lawmaking was thus doubly disadvantaged by its relationship to federalism: pushed by weak federal law down to the local level, where labor interests were deemed too insignificant to count toward legitimate city market participation. As a result — and despite labor’s innovative strategy, bold execution, and ongoing struggle — while the ports have embraced green growth, it is still at the expense of port truckers, now saddled with the economic burden of acquiring clean trucks without the economic benefit promised by employee status and unionization.

Keywords: local environmental regulations, enivronmental standards, air quality, independent contractors, Port of Los Angeles

Suggested Citation

Cummings, Scott L., Preemptive Strike: Law in the Campaign for Clean Trucks (January 14, 2015). 4 UC Irvine Law Review 939 (2015), UCLA School of Law Research Paper No. 15-01, Available at SSRN: https://ssrn.com/abstract=2549949

Scott L. Cummings (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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