Litigation Slows Implementation of Los Angeles and Long Beach Ports’ Ambitious, Contentious Clean Trucks Program

 James Hankla
James Hankla
The San Pedro Bay Ports are economic drivers for California’s entire economy, but they are also two of the largest polluters in Southern California. The ports of Long Beach and Los Angeles recently coordinated to enact a broad program of environmental practices aimed at reducing harmful pollution around the ports. In order to detail these ongoing environmental initiatives at the two ports, VerdeXchange News presents the following remarks made by James Hankla, president of the Long Beach Board of Commissioners, and S. David Freeman, former president of the L.A. Board of Habor Commissioners. Also included is a news report from the Los Angeles Business Journal explaining the current status of litigation brought by the American Trucking Association regarding the Clean Trucks Program. 

 

James Hankla: When I started as a harbor commissioner six years ago, I knew the Port of Long Beach would have to be thinking globally about goods movement, and that’s certainly what we've been doing. I long have been aware, as a trade commissioner, of the responsibilities we have for sustaining the economy of Southern California, which is supported primarily, in my view, by our two great ports. In exercising my duties as Commissioner, I have probably devoted far more time to being an environmental commissioner, promoting green port strategies around the world.

At the Port of Long Beach we have been thinking globally about clean air, but acting locally to improve our air quality for many years. We jumped to the head of the pack in 2005 with the adoption of the Green Port Policy, making environmental protection and sustainability a top priority. We literally changed the culture of the Port of Long Beach over night. What spurred us to rev up our efforts were studies that showed that port-related diesel air pollution posed a very serious threat to public health. Indeed, the ports created a toxic footprint.

In 2006 we joined our neighbor—and sometimes competitor—the Port of Los Angeles in adopting the Clean Air Action Plan. This is a comprehensive and coordinated approach to reduce air pollution by 45 percent by 2012. We have implemented strategies to curb pollution from ships, trains, trucks, terminal equipment, and harbor craft, investing many millions of dollars.

We’ve provided incentives for the use of clean, low-sulfur fuels and for vessels to slow their speeds to improve air quality. We’ve negotiated an agreement with the railroad, working within the port to switch out all of its locomotives to cleaner locomotives. We have launched the ambitious Clean Trucks Program to replace thousands of old, polluting trucks with a new clean-truck fleet. On October 1, we banned all pre-1989 trucks. That alone reduced the pollution from diesel trucks serving the ports by 50 percent. We have signed green leases that include top environmental covenants with two of our key container terminals. We plan to sign more. We have many greenhouse gas reduction initiatives. We expect to do a lot more in the years ahead because this is just the beginning.

S. David Freeman
S. David Freeman
S. David Freeman:
I want to focus on what we haven’t gotten done and what we have got to do, which is to really zero in on greenhouse gases. We have done a reasonable job of combating local pollutants, but if we’re going to take the call of this conference seriously, to think globally and act locally, then thinking globally is thinking about global warming. That is the global issue. And I don’t know that we yet have a track record in the state of California or at the ports of actually reducing greenhouse gases in a material way. That job is ahead of us. The air hasn’t heard about all of these hearings we have held, all of the laws we have passed, or anything else. Cleaner diesel has just as much greenhouse gas emissions as dirty diesel. The more pollution control devices we put on our trucks the lower the efficiency. The fact is, we have a major job ahead of us, and I’m not in a bragging mood today.

The Port of Los Angeles matches [Long Beach] Mayor Foster’s idea of long-term thinking and ups it. We think in 100-year terms. We are at a point where we have an opportunity to make green growth something that fits the short-term needs for jobs and the long-term needs for eliminating the word “congestion” from our dictionary, forever. We are doubling our construction budget within the next year. We haven’t adopted it yet, but we’ve had two days of budget hearings. We are cutting expenses to the bone, in order to have the largest possible program for construction because we have to cover our debt in order to be able to borrow money, and we have to borrow money to have the maximum construction program. Fortunately the port has a pretty solid financial situation at the moment. We intend to keep it that way but not just to sit on it. We are going to expand our facilities and improve the waterfront to the maximum extent to which we can borrow the money and keep our expenses as low as possible.

Our vision for the future is to electrify the ports. We started with the amping under [former Los Angeles] Mayor Jim Hahn. We are proceeding. Five years from now our mission is that we will not burn anything on our docks. All of the equipment will be electric and the ships will all be powered with electricity. That electricity is going to come not from coal, but from the sun. In our board meeting this week we approved a one-megawatt plant. We are going to build ten megawatts. We are going to take the power of the sun, turn it into electricity and use it to power our ports.

Therefore, we will have green growth, and we are going to build the facilities so that the goods will truly move cleanly and quickly through our ports. 

 

Clean Truck Plan On Rocky Road?

Ports: Judge’s injunction could detour diesel program.

By Francisco Vara-Orta

Los Angeles Business Journal Staff

This much is clear: Even supporters of a $2.2 billion effort to clean up the region’s twin sea ports concede that the embattled plan could have to be redrawn.

After three years of legal skirmishes, a Los Angeles federal judge is expected next week to possibly halt or throw out key elements of the program, aimed at cleaning up the region’s biggest single source of air pollution...

...The American Trucking Association, an industry trade group, has sued the ports of Los Angeles and Long Beach contending the Clean Trucks Program violates federal law because it requires trucking companies to obtain a taxi-style concession to service the facilities.  The disagreement is far from academic.

The concession agreements vary at each port, but both require trucking companies to pay initial registration fees of $250 to $2,500 and recurrent annual registration fees of $100 per truck. If the concession agreement is killed altogether, a casualty would be the fees, which could generate about $2 million a year to help run the cleanup program. The plan aims to cut truck-related diesel pollution 80 percent over five years...

...“There will be no way for the money to flow,” Pettit said. “The ports will not be in as good a place to offer incentives to the companies.”  The L.A. port concession also requires trucking companies to hire drivers, eliminating the independent operators that served the port for decades. Trucking companies have bitterly fought the provision, supported by organized labor and L.A. Mayor Antonio Villaraigosa, as a thinly veiled way to unionize harbor truck drivers.

However, there appears to be a consensus among legal experts that the ports were on shaky ground in establishing concessions instead of simply setting clean-engine standards that truckers would have to meet to service the port.

It’s pretty obvious that the ATA has a solid argument that the concessions are a violation of federal law,” said Mark J. Andrews, an attorney who manages transportation cases for Strasburger & Price LLP in Washington, D.C...

 

...The ATA has argued the concession plans attempted to regulate the “price, route or service” of the trucking operations at the port, a violation of the federal preemption contained in the Federal Aviation Administration Authorization Act.

The appeals court agreed with the trucking association and ruled late last month that at least some elements of the concessions appeared to violate the act. It sent the case back to Snyder for review to determine whether the entire agreement or only certain “egregious” elements, such as the employee hiring provision, should be nixed.

"With the strict order by the Court of Appeals, the judge has no choice but to issue some sort of injunction, but no one knows yet how severe it could be,” Andrews said.

 

That’s what has the supporters, critics and observers of the truck program nail-biting. No one can exactly predict what Snyder will direct the ports to do, but many agree the plan will have to be changed, at least temporarily.

It’s clear that the L.A. port’s employee driver provision is most threatened, and that would be a loss for organized labor, including Teamsters President James Hoffa, who reportedly personally met with Villaraigosa to shape the plan...

...ATA spokesman Clayton Boyce stressed his association is not challenging the entire program, only elements they view as infringing on federally protected business practices.

“We support the environmental goals of the Clean Truck Program, including the container fee for financing the replacement of older trucks, the banning of older trucks and the truck registry,” Boyce said. “We have only opposed the ... concession plans.”

The ATA is specifically not opposing the banning of older trucks, the establishment of a truck database and, most critically, the ports’ Clean Truck Fee, a $35 fee per cargo container that is paid by cargo owners and not truckers. The ports are counting on the fee generating up to $1 million a day, with the money subsidizing as much as 80 percent of new truck purchases.

It appears the fee would be maintained if Snyder restricts her ruling to the concession issues, yet the fee is not completely safe...

...The issue now becomes how long the legal battle will play out. It’s likely that if Snyder issues a temporary injunction, the issue could go to trial, Pettit said. That could extend the legal battle more than a year.

And whichever side loses can appeal to the Ninth Circuit again. But the ports would likely have to appeal to the U.S. Supreme Court because the appeals court firmly opposed the concession plans, according to Mark Elliott, an environmental lawyer and partner at New York-based Pillsbury Winthrop Shaw Pittman LLP.
“The only other choice the parties will have to get their way outside of court is to lobby for Congress to change the Federal Aviation Administration Authorization Act in their favor,” Elliott said. “The ports could get the act amended but that might take a few years and by that time, the plan may be already completed anyway.” •••

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