David Pettit's Blog: Curbing Pollution

Your Witness -- At Last!

2010-04-15T03:25:38Z

After two trips to the appellate court, the American Trucking Association’s lawsuit against the Port of Los Angeles over the Port’s Clean Trucks Plan will finally go to trial on Tuesday, April 20, 2010 before United States District Judge Christina Snyder in Los Angeles. Here is an update on what to expect.

The central issue in the case from the environmental standpoint has come down to this: can the Port require that trucking companies shoulder the cost of maintaining the Port truck fleet rather than leaving the burden on the underpaid drivers. Plaintiff American Trucking Association says no; the Port of Los Angeles and the Intervenors – Sierra Club, Coalition for Clean Air, and NRDC – say yes.

By way of background, the Port, under pressure from NRDC and others to grow green or not grow at all, enacted a Clean Air Action Plan in 2006 that aimed to clean up diesel pollution from Port-serving trucks, ships, trains, tugs and other equipment. This was needed for the trucking fleet because the “independent owner-operator” trucking system that had evolved after trucking was deregulated in the 1980’s had resulted in a fleet of 16,000 or so old, dirty trucks serving the Port. The principal reason for this was (and is) that the drivers net an average of $12 per hour and all too often could not afford to spend money on proper maintenance of their trucks. For good reason, there was a saying: Ports are where old trucks go to die.

To fix this problem, the Port enacted a regulation that made the trucking companies (“licensed motor carriers”) responsible for truck maintenance. The Port also went out of pocket over $24 million to subsidize private industry to bring new, clean trucks to the Port. Trucking companies snapped up the Port’s money, but the American Trucking Association filed suit, claiming that the regulation violates federal law.

The Trucking Association tried, but failed, to have the Port regulations thrown out on legal grounds. So, next week, they will bring witnesses to the witness stand to try to convince Judge Snyder that the Port regulations violate a federal statute that restricts, in some circumstances, local governments from regulating the prices, routes or services of trucking companies.

The American Trucking Association witnesses will testify first, then the Port’s witnesses, then Intervenors’. The trial is scheduled to last eight court days. Judge Snyder may rule from the bench at trial’s end, or take the case under submission. If you want to see the American system of justice in action, c’mon down.

Climate Change Adaptation Debate At Santee Education Complex

2010-04-10T00:34:05Z

Last year, the Santee Education Complex in Los Angeles held a debate at about climate change. On April 16, 2010, Santee students will participate in another debate under the auspices of the United Nations Foundation Global Debates program, this time focusing on the adaptations necessary to combat climate change. The specific resolution under discussion is: “Annex I Countries of the UN Framework Convention on Climate Change should provide significantly increased aid to developing countries for the specific purpose of climate change adaptation.” This, as readers may recall, was a tough issue at the recent Copenhagen conference on climate change.

The debate will be held on April 16, 2010 at 10:00 AM and 1:45 PM in the school auditorium. The debates will be videotaped and submitted to the United Nations Foundation. These students are good: they have won this event two years in a row.

The Santee Education Complex is at 1921 S. Maple Street in Los Angeles. Stop by if you can. You may also be interested in an Environmental Expo being held at Santee on April 28, 2010.

Cars, Trucks and Climate Change

2010-02-25T00:10:04Z

A recent study led by climatologist Nadine Unger of NASA’s Goddard Institute for Space Studies has concluded that motor vehicles, as a sector in the economy, are “the greatest contributor to atmospheric warming now and in the near term.” The second greatest contributor, by sector, is the burning of household biofuels such as wood and animal dung. Third is raising livestock, particularly cattle.

So, how should we knock the transportation sector off the podium? One way that California is pioneering is a low carbon fuel standard. The basic idea is to reduce the carbon intensity of motor vehicle fuel per unit of energy. My colleague Roland Hwang has blogged about this here.

Another tactic that California is pursuing is restricting tailpipe emissions of CO2. After a politically-driven and unscientific decision by the Bush Administration EPA blocking California rulemaking was reversed, California’s AB 1493 (the “Pavley Act”) is on its way to reducing global warming emissions from cars in California, and in other states that have adopted similar laws.

A third way to reduce global warming from the transportation sector is to improve our public transit system so that fewer people need to drive personal vehicles. My colleague Lizzeth Henao blogged here about recent progress in funding public transit projects in Southern California.

Not surprisingly, the auto manufacturers fought AB 1493 in court (and lost) and various industries are fighting the low carbon fuel standard in court. And we can expect the highway lobby to try to suck up all the transportation dollars it can.

I hope that these fights can be won. If not, we’ll be driving our cars into a very dangerous future.

Industry Tries to Derail Progress in California, Again

2010-02-05T03:33:47Z

In a familiar attack on California’s plans to fight climate change, a coalition of industry groups has filed a lawsuit in federal court in Fresno, California challenging California’s low-carbon fuel standard (LCFS). The low carbon fuel standard is designed to reduce CO2 emissions by cutting down on the carbon content in motor vehicle fuel. My colleague Roland Hwang has blogged about this here.

The industry plaintiffs, including the American Trucking Associations, which is trying to kill the concession agreements that are the heart of the diesel pollution-reducing Port of Los Angeles Clean Trucks Plan, are making two arguments: that the LCFS violates the Commerce Clause of the United States Constitution and that it is preempted by federal law, specifically the federal Energy Independence and Security Act of 2005. These are the same legal theories that the auto industry used, unsuccessfully, in legal challenges to California’s Pavley Act, which is designed to reduce tailpipe emissions of CO2.

In the Commerce Clause claim, the plaintiffs allege that the LCFS discriminates against non-California producers of corn ethanol, a product that can be blended with gasoline to reduce the carbon content of the combined fuel. Plaintiffs also make the interesting claim that the LCFS will not provide any benefit to California that could outweigh the alleged harm to out-of-state interests, in summary because they claim the LCFS benefits won’t put a dent in global climate change. Were that theory to prevail, which I think unlikely, a very big dent would be put in many state and regional level climate change initiatives because the same argument could be made there: climate change is a world-wide problem and nothing we do locally can do any good. So I guess we should just quit trying and get used to living here in California with more smog that kills more people every year, more fires, more agricultural pests, more ocean erosion, fewer native species and no water.

The preemption claim asserts that the federal government has occupied this area of regulation of motor vehicle fuels and so California can’t have its own laws regulating the carbon content of fuels. As I mentioned above, that same argument was made in the Pavley Act cases and went down to defeat. There is no reason to expect a different result here.

Why are these industry groups throwing money at lawyers rather than working with California to stop global climate change – with retread legal arguments that are proven losers? It’s hard to say. Their public messaging trots out the “job killer” page from the industry playbook, but there’s nothing behind that: the clean fuels industry will be creating jobs, not eliminating them. After industry loses this next round, maybe they will clean up their act like the auto industry did after losing the Pavley cases. It’s disappointing, but not surprising industry has chosen to litigate rather than innovate despite the fact that California requires them to start offering clean fuels. Instead of moving their industry into the 21st Century it appears they’d rather keep selling the same dirty old oil that sickens people and destroys our environment.

EPA Ozone Rule Reconsidered: Science, Not Politics This Time.

2010-02-03T22:53:38Z

In August 2007, I testified at an EPA hearing in Los Angeles on EPA’s proposal to set a new national limit for ozone, which we here in L.A. think of as smog. My testimony, the testimony of nearly all the speakers, and the unanimous conclusions of EPA’s own panel of scientific experts were ignored by the Bush Administration which intervened on literally the last day to make the rule more business-friendly – at the cost of public health. My colleague John Walke blogged about this outrage here. Not surprisingly, litigation followed.

Obama Administration EPA head Lisa Jackson recently decided, quite correctly, to take another look at the ozone rule. New public hearings have been set to discuss her proposal to substantially reduce the ozone limit from the bogus Bush Administration number and base it on science instead of politics.

Here is how this is supposed to work. The Clean Air Act requires that EPA set limits for pollutants like ozone that are “requisite to protect the public health” and that allow for “an adequate margin of safety.” The limit must protect the health of sensitive groups as well as healthy people.

As EPA itself recently wrote, “[i]n selecting primary standards that include an adequate margin of safety, the Administrator is seeking not only to prevent pollution levels that have been demonstrated to be harmful but also to prevent lower pollutant levels that may pose an unacceptable risk of harm, even if the risk is not precisely identified as to nature or degree.”

The bottom line, as I understand it, among the many scientific studies of ozone impacts that EPA has reviewed, is that there are credible studies showing detrimental effects on healthy people at levels of 0.060 parts per million ozone. EPA’s panel of scientific experts recommended that the limited be set in the range of 0.060 to 0.070 parts per million. The Bush EPA brushed off these studies when it set the limit at 0.075 parts per million in 2008. But what those studies mean is that a limit set above 0.060 parts per million will not be protective of sensitive populations because it will not even protect healthy people.

I’m going to testify at the EPA hearing on the new ozone rule on February 4, 2010 in Sacramento and this will be my message to EPA: any limit over 0.060 parts per million would be illegal as well as unwise. EPA may disagree, but this time I don’t think that the views of the many people who agree with me will be ignored.

Dr. Geraldine Knatz, Port of LA, on the LA Clean Trucks Plan

2009-11-23T21:47:03Z

Just a quick note encouraging people to take a look at Dr. Knatz' Op-Ed on the Clean Trucks Program in the November 19, 2009 Long Beach Press-Telegram. You can find it at: http://www.presstelegram.com/opinions/ci_13827753.

Long Beach Harbor Commissioner Mario Cordero Speaks About The ATA Settlement

2009-11-18T00:28:00Z

Last night, there was a hearing at the Port of Long Beach about the Port's decision to settle the American Trucking Association case on terms that I think are so weak that they are a setback to clean air and public health.

Before the hearing, there was a demonstration outside the Port building by community members, truck drivers, clergy and others. Here is some video of the demonstration. Below is a photo taken at the demonstration by NRDC lawyer Morgan Wyenn.

Harbor Commissioner Mario Cordero spoke against the Port staff recommendation to change the Port's governing law (the "tariff") to make it consistent with the settlement agreement. You can watch the entire hearing here (click on the November 16 video link). But let me ask you to pay special attention to what Commissioner Cordero says beginning at about 2:32 on the video. I found it very moving. I'll conclude here with a rough transcript of what he said - his words are more powerful than anything I could say about them.

"Because my prediction is that in 10-15 years, it may well be that people who sit at this table and around this staff may believe that having all electric tugs, trucks will be a must in this city and in this region. So the question I have to counsel here preliminarily, the agreement essentially for us to do that, we need to have the ATA consent to that agreement or to that change? And that's another question again, however you argue on this, ultimately again the question is not just for the port of Long Beach, New York, New Jersey, Oakland, Los Angeles, you can go on and on, it's time that port authorities make that decision, not subject to consultation with an agency or public interest group like the ATA, who in my opinion could, did not care one bit what this freeway looked like back in 2003 and 2004. . . . .

"For me personally, I have another observation. You don't have to be a harbor commissioner, a staff director, a truck driver or LMC. Look who's driving the trucks. Ultimately that is a social issue here. Not to say that we're here to address environmental justice programs or issues. There may be an argument regarding the aspect of all this. But let us not lose sight, who's driving the trucks. I cannot lose sight of that because that's where I came from. I came from an immigrant family. And I came from a hard working labor father, a father who was a laborer. And all of us sit around here, especially on this side of the podium and around the desk, I suggest that we've all done better than our parents. These truck drivers remind me of the strife of the immigrant. And how that relates to the environment? Again, I'll ask you, look at the emissions back in 2003 and 2001. The average truck year, according to John Husing, was 1986. We had as many 1973 trucks as we did 2003 trucks in 2005 and ultimately you cannot, per this agreement, hold that driver responsible because that driver does not have, does not capitalize and does not have the means to address this. So it's fine and dandy to say we're going to prohibit a truck, which is another name for prohibiting a driver, because he's not leasing a truck, he or she. Yes, you could do that, and then the LMC or the broker will just find another driver to take his or her shoes. And I think we need to step back and look at what the real issue is. It's not what this country is about. And I'm certainly a product of a family that fought, fought hard, worked there and the opportunity was there. And I want that same opportunity to be given to people who are in the truck industry, the kind of industry that we had before, in the 1980s."

Problems With Port Of Long Beach Settlement With ATA

2009-11-09T20:37:41Z

My blog posts of October 19 and 28 about the Port of Long Beach's settlement of the trucking industry's lawsuit against it generated two canned responses and a number of real ones. I also received a "Dear David" letter from Nick Sramek, President of the Long Beach Board of Harbor Commissioners. Below is the response to Nick's letter that I sent out today; I believe that it responds to all of the criticisms that my earlier posts engendered.

Dear Nick:

This is in response to your letter dated November 3, 2009.

First, I would like to explain what is, and is not, in the settlement agreement that the Port of Long Beach ("POLB") entered into with the American Trucking Association ("ATA"). Second, I want to remind you of the history of the Clean Air Action Plan and describe why the settlement is offensive to it. Third, I will outline why the settlement is illegal under California law. Last, I have a suggestion about how to get the Clean Trucks Program back on track.

The Settlement

From the standpoint of air quality, the two worst things about the settlement are that the registration agreement created in the settlement forbids POLB from barring a licensed motor carrier ("LMC") from its property for dispatching one, a hundred, or a thousand dirty trucks to the Port, and that the unelected POLB Harbor Commissioners have contracted away the City of Long Beach's police power forever concerning any changes to the registration agreement. Let me explain these in turn.

No Power To Exclude LMCs For Dispatching Dirty Trucks.

Under the POLB settlement agreement, LMCs are required to "register" with POLB prior to conducting port drayage services and enter into a "registration agreement." The only grounds available to suspend a registration agreement is if the LMC's state and federal operating authority is suspended or if the port finds that an LMC knowingly provided false information to the Port's Drayage Truck Registry. This means that the settlement agreement does not allow an LMC to be suspended even if it repeatedly dispatches trucks that violate environmental, safety or security laws or regulations, except in the exceedingly rare case in which the federal or state government, after long delay, suspends an LMC's operating authority.

The effect of this is that the registration agreement fails to provide a true deterrent or remedy for conduct that can cause a complete breakdown of the Port's environmental, safety and security programs. Long Beach's inability to hold LMCs accountable coupled with the fact that under the registration agreement, LMCs are not required to report accidents to OSHA or workers compensation offices for contractors (since drivers do not have to be employees), results in LMCs having little business incentive to assist independent drivers in achieving optimum safety or environmental standards. Under POLB's settlement, the port is left enforcing its environmental standards against thousands of individual trucks, and is unable to directly remedy the problem at its source.

Let me summarize: POLB has no independent authority under the registration agreement to suspend an LMC for dispatching dirty or unsafe trucks to the Port. If you disagree with this, I urge you to re-read Section X of the registration agreement.

Port and City Police Power Contracted Away.

In its settlement, POLB Harbor Commissioners-not the elected members of the Long Beach City Council-contracted away the Port's and City's police power and discretion to manage the Long Beach Tidelands by constraining the Port's and City's ability to enforce future environmental, safety and security guidelines for drayage services. Specifically, under the settlement agreement, any attempt by the Port or City to require LMCs to meet more stringent environmental, safety or security requirements than those set out in the registration agreement would be a breach of the settlement agreement and authorize ATA to reinstate its lawsuit against Long Beach. For instance, if the current commission or a future commission required LMCs to create vehicle maintenance plans to ensure sophisticated diesel particulate filters are well-maintained and functioning properly, POLB would likely be in breach of the settlement. If you disagree with this, I urge you to re-read paragraphs 4 and 5 of the Stipulation And Settlement that the Port entered into. To repeat: what the Port has done ties Long Beach's hands to address future needs of the port and surrounding communities-forever.

Additional Issues With The Settlement.

Failure To Include Maintenance and Financial Capability Requirements. Unlike the POLB concession agreement, the registration agreement does not require LMCs to prepare maintenance plans or allow the port to inspect any LMC maintenance records. It is well-known that port trucks often go into disrepair because drivers cannot afford to properly maintain their trucks, let alone purchase new, cleaner models. Given that Long Beach's registration agreement provides no incentive for LMCs to financially support or assist drivers with maintenance or provide any requirements that proper maintenance occurs, there is great concern that the environmental benefits achieved by the ports' truck bans will be short lived.

Further, unlike the concession agreement, the registration agreement does not require LMCs to meet minimum financial capability requirements. Any LMC that certifies that it will comply with the registration agreement and pay a one-time $250 registration fee and $100 per truck annual fee can perform port drayage operations at Long Beach. Absent financial requirements, there is no guarantee that trucks will be well-maintained or that those performing port drayage will have the capital to purchase newer, cleaner trucks as they become commercially available. As a result, the drayage market will have to rely on perpetual government subsidies and taxpayer dollars to clean up future fleets. Relying on underpaid drivers to meet port environmental, safety, and security programs has been a failure in the past and there is no reason to expect that this situation will change.

Failure to Protect Local Neighborhoods From Safety Hazards Created by Trucking Operations. The registration agreement does not require motor carriers to comply with any truck routes or parking restrictions as a condition of obtaining port entry. As a result, POLB has removed an important mechanism to ensure trucking operations comply with local ordinances. In fact, POLB is precluded under the registration agreement from taking any corrective action against motor carriers who fail to comply with, e.g., local and state truck routes. Port trucks create not only public health impacts but safety concerns for local residential neighborhoods where trucks regularly park and traverse local roads. Such trucks could be extra-wide, over-height, and/or carrying hazardous materials-but POLB has contracted away its ability to do anything about this that is not authorized in the current registration agreement.

The Clean Air Action Plan

The Clean Air Action Plan was meant to be a coordinated attack on the recognized problem of air pollution at POLB and the Port of Los Angeles. Although the Ports wound up differing over the POLA employee phase-in and certain minor details, both Ports enacted plans that had at their core the idea that the Ports would have control over the environmental performance of the LMCs through a concession agreement between the Port and the LMC.

Indeed, in the ATA lawsuit POLB Executive Director Richard Steinke told the court that "a key component of the CAAP is the Clean Trucks Program" and specifically references the "Drayage Truck Concession Requirements" which he attached as an exhibit to his August 19, 2008 Declaration. POLB's Dr. Kanter told the federal court that: "without the mitigation measures provided by the CAAP and the CTP, the Port cannot approve urgently needed renovation projects to accommodate expanding trade volumes."*** POLB vigorously defended the wisdom, necessity and legality of its concession plan in its August 20, 2008 brief in opposition to ATA's motion for a preliminary injunction, and again at every stage of this litigation, in the District Court and in the Ninth Circuit, until the very day that it abandoned its concession plan in favor of the so-called "registration agreement." In fact, in its November 2008 brief filed in the Ninth Circuit, POLB vigorously defended the environmental benefits of its concession agreement and explained the detriment that would occur to the environment if its agreement were enjoined:

If this Court were to enjoin the concession contracts now, the environmental benefits achieved thus far would be undermined, and any future environmental benefits would be placed on hold. As the Ports have shown, the concession contracts play a key enforcement role in the scheme of the CTP. Without the concession contracts, the safety and environmental goals of the CTP will be compromised, and the public interest will be significantly undermined.

As I have discussed above, POLB has contracted away its right to bar an LMC from the Port for environmental and safety reasons, short of the state or federal government doing it for them. This is a 180 degree turn from the position that POLB had maintained from the day it enacted the CAAP up to the day it settled with ATA.

On a related note, much has been made of the fact that the air near the ports is cleaner because of the new trucks now serving both ports; people have argued that this shows that the concession plans are somehow not needed. Let's look at the numbers: as of this writing, POLA has funded 2,200 new trucks, and POLB 171. POLA's numbers reflect the fact that POLA will only subsidize trucks owned by LMCs which have signed a concession agreement. What this shows is that POLA's concession agreement has been critical to cleaning up the air at both ports.

The Legality of the Settlement Agreement

There are a number of legal problems with the settlement which we will be urging the Long Beach City Council to consider. Among these are:

Invalid Delegation Of Police Powers.

POLB cannot legally contract away its or the City of Long Beach's police powers to a non-governmental entity. The police power is broadly defined in California to include "the protection of peace, safety, health and morals," Mott v. Cline, 200 Cal. 434, 446 (1927), and includes actions taken to protect the environment. See, e.g., Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach, 86 Cal.App.4th 534 (2001). "It is settled that a government entity may not contract away its right to exercise the police power in the future. (See, e.g., Avco Community Developers, Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 800, 132 Cal.Rptr. 386, 553 P.2d 546 (Avco); County Mobilehome Positive Action Com., Inc. v. County of San Diego (1998) 62 Cal.App.4th 727, 736-739, 73 Cal.Rptr.2d 409 (County Mobilehome); Alameda County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th 1716, 1724, 45 Cal.Rptr.2d 752 (Alameda County).) A contract that purports to do so is invalid as against public policy. (County Mobilehome, supra, 62 Cal.App.4th at p. 736, 73 Cal.Rptr.2d 409.)." Cotta v. City and County of San Francisco, 157 Cal.App.4th 1550, 1556-7 (2007).

Here, POLB has given ATA veto power over any changes in the so-called registration agreement, whether for environmental, safety or other reasons. For instance, if the port required LMCs to create vehicle maintenance plans for the trucks they dispatch, or conditioned port access on LMC's dispatching that met certain environmental standards, ATA would have grounds to argue that the settlement was breached. Without these types of environmental safeguards, however, we believe that benefits of POLB's Clean Trucks Program will be short-lived. Structuring the settlement in this way is plainly an unlawful delegation of Long Beach's police powers to a trade association.

Violation of the California Environmental Quality Act (CEQA).

POLB's statements to the public and to the federal courts recognize that air quality in Southern California is likely to suffer without the Port's concession plan in place. POLB's own briefs and declarations in the federal court action are evidence of the environmental benefits that the now-revoked program were expected to bring. Nevertheless, POLB did not conduct any CEQA review prior to entering its settlement agreement with ATA.

Under CEQA, a full environmental impact report is required where substantial evidence supports a "fair argument" that significant impacts "may" occur-even if other substantial evidence supports the opposite conclusion. No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75; Friends of "B" Street v. City of Hayward (1980) 106 Cal.App.3d 988, 1000-03. The "'fair argument' "standard imposes a "'low threshold'" for requiring the preparation of an EIR. Citizen Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 754. Such a standard "reflect[s] a preference for requiring an EIR to be prepared." Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 332. Under the "fair argument" standard, deference to the agency's determination is not appropriate, and its decision not to require an EIR may be upheld only if there is no credible evidence to the contrary. Sierra Club v. County of Sonoma (1992) 6 Cal.App.4th 1307, 1317-18.

Here, it does not appear that POLB has considered whether CEQA applies to the settlement agreement itself-specifically, whether POLB's abandonment of the environmental provisions in its concession agreement triggers a CEQA analysis. POLB did make CEQA findings in its November 2, 2009 Resolution purporting to conform POLB Tariff No. 4 to the settlement agreement, claiming statutory exemptions on these bases: rates, tolls, fares, and charges (Cal. Public Resources Code Section 21084); restoration or rehabilitation of mechanical equipment (Section 15301(d)); and "no possibility of significant adverse effect on the environment" (Section 15061(b)(3)). In my view, the first two claimed exemptions are frivolous and the last cannot overcome the "fair argument" rule discussed above because the settlement will hamstring POLB's ability to prevent LMCs from sending dirty trucks to service the port.

Violation of the California Tidelands Trust.

The Port of Long Beach is built on tidelands that are subject to the California Tidelands Trust. The land is owned by the State of California and was granted in trust to the City of Long Beach. According to the California State Lands Commission, which regulates uses of California tidelands: "All uses, including those specifically authorized by the Legislature, must take into account the overarching principle of the public trust doctrine that trust lands belong to the public and are to be used to promote public rather than exclusively private purposes. The Legislature cannot commit trust lands irretrievably to private development because it would be abdicating the public trust." POLB's website states that it is obligated under the Tidelands Trust to "manage and develop the Harbor District for the sole purposes of commerce, navigation, fisheries and recreation."

In State ex rel. California State Lands Com'n v. City of Long Beach, 125 Cal.App.4th 767, 779 (2005), the California Court of Appeal stated: "The public interest in the Long Beach tidelands-which the City holds in trust for the people of the State of California-necessarily includes their protection and preservation." By entering into the settlement agreement and by amending its tariffs, POLB will physically damage Port property, the Port environment and the workers and residents at or near the Port, and has impaired its own ability to manage and expand Port commerce-the very values that Mr. Steinke and Dr. Kanter told the federal court are so important.

How To Resolve The Problems Created By The Settlement

This is simple: revoke it. POLB signed it; POLB can tear it up, get back in the ATA lawsuit and defend the concession plans that POLB defended for years as prudent, necessary, wise and legal.

Thank you for your consideration of this letter.

Yours truly,

David Pettit

Senior Attorney

Natural Resources Defense Council

*** Declaration of Dr. Robert Kanter, August 19, 2008, para. 11.

A Breach Of Trust

2009-10-28T23:58:29Z

To follow up my blog post of October 19, 2009, here is the text of a letter that was sent today by the following organizations to the Port of Long Beach:

California School Employees Association, Long Beach Chapter; Coalition for Clean Air; Coalition for a Safe Environment; Communities for a Better Environment; Communities for Clean Ports; East Yard Communities for Environmental Justice; Greater Long Beach Interfaith Community Organization; LAANE; Long Beach Coalition For A Safe Environment; Natural Resources Defense Council; San Pedro Democratic Club; Sierra Club Angeles Chapter, Harbor Vision Task Force; Students United for Justice, CSU Long Beach; and Teachers Association of Long Beach.

Re: Unlawful Settlement with the American Trucking Association

Dear Commissioner Sramek and Members of the Commission:

On behalf of the undersigned organizations, we write to protest the unlawful and unwise back room deal that the non-elected members of the Long Beach Harbor Commission struck with the Virginia-based American Trucking Association (ATA) without any hearing or ratification by the Long Beach City Council. We request that the Port withdraw itself and the City of Long Beach from this agreement because of the harm it will bring to the residents of Long Beach and the entire region.

At the outset, we are exceptionally disappointed that the Port bound itself and the City of Long Beach into such a dangerous deal. To make matters worse, the public had no opportunity to review this agreement before it was filed with the court. Even elected representatives from the City of Long Beach did not formally approve the arrangement struck with the trucking lobby before these City Council members were bound by its terms.

Beyond the disregard for public process exhibited by the Port in entering into this agreement, the agreement itself is flawed in many ways.

This ATA-approved trucking plan erodes the Port's ability to enforce environmental, security, and safety measures in the harbor area. The Port's surrender of its traditional police powers and its ability to protect residents of Long Beach from harmful truck impacts leaves us little confidence in the Port's ability to ensure a sustainable trucking system-a system which is a foundation for Port expansion.

The agreement unacceptably delegates the City Council's and the Port's decision-making power to address impacts from harbor trucking to industry lobbyists. The veto power that ATA now has under this arrangement will seriously undermine current and future efforts to control harmful impacts from port trucking.

Approaches to problems devised in back room deals with industry groups have a negative history in the harbor and are likely to engender more litigation rather than resolve conflicts. The jointly developed Pacific Merchant Shipping Association-Port of Long Beach fuel incentive program was a flop; lackluster participation rates allowed this industry to burn its filthy fuels to the detriment of the community. Now, with little assurance that trucking companies will be held accountable, there is reason to question the Port's assumption of future pollution reductions.

The Port's execution of the settlement agreement raises serious legal issues under the California Environmental Quality Act, the State Tidelands Trust, and the Long Beach City Charter. At a minimum, we do not believe these issues have been vetted in a legitimate public process. The agreement also calls into question the viability of the mitigation monitoring plan for the Middle Harbor development as well as the air quality assumptions for upcoming Port and regional projects. It is a shame that the Port was willing to potentially jeopardize port growth to cater to a single industry association.

When the Port of Long Beach entered into the Clean Air Action Plan (CAAP), it entered into a contract with Long Beach residents that the Port would stand up to industry's opposition to cleaning up the harbor, and that it would do all it could to clean up one of the unhealthiest parts of California. Based on these promises, we supported the CAAP; many of us participate in the Joint-Mayors CAAP task force. We thought we were part of the decision-making process, but the Port tossed the community to the side in entering into this settlement.

The public statements issued by the Port of Long Beach and the trucking lobby that this agreement is a "boon for clean air" are Orwellian. It is an unsavory giveaway to a trucking advocacy group that has long fought against air pollution clean up efforts. The Port's public health, environmental, and economic impacts impart tremendous responsibility on the City and the Port to protect the surrounding community, and it is clear to us that the Port's settlement violates this duty.

For these reasons, we urge the Port to rescind its approval of the settlement agreement and remain true to the promises it made in the CAAP.

Sincerely,

David Pettit

Director, Southern California Air Program

Natural Resources Defense Council

Mary Brown

President, Long Beach Chapter

California School Employees Association

Martin Schlageter

Campaign Director

Coalition for Clean Air

Jesse Marquez

Executive Director

Coalition for a Safe Environment

Bill Gallegos

Executive Director

Communities for a Better Environment

Ryan Wiggins

Campaign Associate

Communities for Clean Ports

Angelo Logan

Executive Director

East Yard Communities for Environmental Justice

Patrick Kennedy

Greater Long Beach Interfaith Community Organization

Patricia Castellanos

Director, Clean and Safe Ports Project

LAANE

Gabrielle Weeks

Executive Director

Long Beach Coalition For A Safe Environment

David Greene

President

San Pedro Democratic Club

Tom Politeo

Sierra Club Angeles Chapter, Harbor Vision Task Force

Hailee Didio

Chair

Students United for Justice, California State University Long Beach

Michael Day

President

Teachers Association of Long Beach

Run, Run Away

2009-10-20T04:32:03Z

Today the Port of Long Beach violated the public trust and sold out the citizens of Long Beach by approving a worthless settlement agreement with the American Trucking Association ("ATA") in ATA's lawsuit against the Los Angeles ports' clean trucks programs. Rather than clean up the trucks that serve its port, Long Beach ran away from a fight with ATA - an organization that has opposed clean air regulation locally and nationally - and is content to sit on the sidelines while the Port of Los Angeles pays to clean up the trucks that serve both ports.

It is unheard of, and illegal, for a governmental entity to give away its police powers - its basic powers to protect its residents against harm - but that is just what Long Beach has done when it comes to the port-serving trucks that drive through the streets of the city. The settlement agreement allows licensed motor carriers ("LMCs") to sign a piece of paper saying that their trucks are safe and sound; the trucks can then enter the Port. If there is a dispute about whether what the LMC told the Port is correct, the dispute is resolved by a Port bureaucrat who is employed by the same Harbor Commission that signed the settlement agreement. That staffer can only suspend an LMC if a misstatement is "knowing," and even then only for a maximum of 30 days, or one year for "a pattern of repeated knowing and intentional conduct."

Contrast this laughable disciplinary system with the severe health effects that port trucking has caused in the nearby communities: greatly elevated risks of cancer, asthma and other cardio-respiratory diseases, over 1,000 premature deaths per year, and untold millions of dollars lost to medical visits that could easily be avoided.

Contrast it also with the strong stance taken today by Mayor Bloomberg of New York City and Mayor Booker of Newark, who urged Congress to increase the ability of their ports, and all ports in the country, to protect their residents from the dangers of air pollution. Long Beach Mayor Foster should be ashamed to be in the same room with these public officials - or with Los Angeles Mayor Villaraigosa, whose vision and courage have led the Port of Los Angeles to be the most advanced in the world in making itself green.

NRDC looks forward to fighting for clean air in a city with the worst air pollution problems in the country. Fights to clean up air pollution cannot be won overnight, but require long-term, sustainable solutions, solutions that the Port of Los Angeles has embraced. Long Beach has failed to take this lesson to heart and continues to disappoint its community and the lungs of those living in the LA region, today and for years to come.

A Stadium Full Of Excuses

2009-09-09T16:38:11Z

The Los Angeles Rams used to play in the Los Angeles Memorial Coliseum, a stadium that was built in 1923, used in the 1932 Olympics and used again in the 1984 Olympics. I used to go see them play when I was a kid, but lost interest when they moved to Anaheim in 1980.

Yes, it's been nearly 30 years since we had pro football in Los Angeles, and many of us would like it back. But a new proposal to build a stadium in the City of Industry carries too high a price.

The man behind the project, billionaire Ed Roski, is asking the California Legislature for a free pass to get out of complying with two provisions of California law: one calling for environmental review of major projects, and one requiring that projects in a City be consistent with the City's General Plan, which is like a local Constitution that governs how the City is to be built out. These are common, garden-variety land use laws that apply to most major development projects in California. The argument being made is that these laws will lead to extortionate litigation by neighboring cities and that enforcement of the laws will kill jobs.

We hear these claims often. And yet, development projects are completed all the time in California. The CEQA process is not just a paperpushing waste of time: it can improve projects, as we have seen repeatedly at the ports of Los Angeles and Long Beach.

Nearly every law carries with it the possibility of meritless litigation. Should the civil rights laws be abolished because some losing cases are filed?

Equally troubling is that the request for special treatment for the City of Industry stadium is being pushed in the last week of the California legislative session, with a joke of a public "hearing" that only Capitol insiders will be able to attend. Why the sudden rush?

NRDC and eleven other major environmental groups have written to the California Legislature in protest. Let me quote some of the text here:

"Regarding the proposal for a CEQA exemption, for example, we understand that one reason for the proposal is that it will create jobs. We agree with you that the state's high unemployment rate is devastating families and is unacceptable. Like you, we support the creation of good jobs in California. We are vigorously supporting legislation to establish a renewable electricity requirement (AB 64 and SB 14) that will create thousands of high-paying green jobs in new, clean technologies. And environmental groups and the State Building and Construction Trades Council are co-sponsoring legislation (AB 1404) to ensure that AB 32 offsets will stay in California and create green jobs for the state's economy.

"Nor do we oppose large construction projects like a football stadium. What we oppose are eleventh-hour amendments to exempt a massive construction project in the midst of a heavily urbanized area from the state's most basic environmental protection and public right-to-know law. By definition, with one week to go in the session, there simply will not be time for adequate public hearings, and the staging of perfunctory and rushed hearings will not change that fact.

"Perhaps most fundamentally, we oppose the suggestion that the construction of a football stadium must be a choice between jobs and the environment. You have both rejected this simplistic either/or logic in the past, and we are disappointed that you appear to be engaging in it now. Obviously, the building of Mr. Roski's football stadium will create jobs whether or not it is subjected to CEQA review. The only question is whether the jobs will come at the expense of the public's right to participate in the review of the project and the environmental impacts that will be overlooked by exempting the project from CEQA.

"These proposals are bad public policy. The timing of these proposals is bad legislative governance. At a time when the Legislature is already held in low regard, their passage will bring further discredit to the Legislature and will undermine your admirable efforts on other fronts to show that the Legislature can solve important public policy problems in a thoughtful and deliberative manner. We would like nothing more than to work with you to achieve those solutions. But we will work strenuously to make sure the eleventh-hour gutting of environmental laws is not a part of the legacy of the 2009 legislative session."

The Los Angeles County Board of Supervisors also went on record yesterday, on a motion by Supervisor Molina, to oppose these end runs around California law. The Los Angeles Times quotes Sup. Molina as writing: "While there are many reasons to support the development of a new NFL Football stadium in Los Angeles County, there are just as many reasons to ensure that the project complies with the same environmental regulations that govern virtually all projects in California. Hospitals, police stations, freeways and all sorts of valuable projects manage to be built without the necessity of CEQA exemptions."

The clock is running on this session of the California Legislature. We don't need the two minute drill -- there will be plenty of time in the next session to work on bringing pro football back to Los Angeles in a fully public process and without doing violence to long-settled land use laws that exist to serve the public interest.

Not Good For You

2009-08-18T16:05:51Z

Southern California, a semi-arid region in the best of times, is getting drier. Our wildfire season used to be September and October; now it's year-round. Another life-threatening year-round problem in California is air pollution. Two recent studies yet again confirm the link between air pollution and our personal and environmental health.

Many people attribute this increasing aridity and fire danger to global climate change. An additional factor that may be overlooked is the effect of old-fashioned air pollution.

For example, a recent study in China concluded that "the number of days of light rainfall in eastern China decreased by 23% from 1956 to 2005 because of air pollution." The causative agent may be the formation of aerosols, small particles that can be created by burning fossil fuels, that may interfere with the formation of rain clouds. Burning fossil fuel is also the main cause of smog-causing ozone in our area.

Worried yet? OK, here's some more troubling news. A recent study published in the journal Toxicology found that: "Sperm counts are lower in mice whose mothers were exposed during pregnancy to a mixture of particles found in diesel exhaust." The report of the study that I read in Environmental Health News stated that the nature and amount of the pollutants used in the experiment "corresponds to about 10 years worth of exposure to air pollution in humans."

Here in Southern California, we see very high levels of diesel particulate pollution near our ports and freeways. This is the price we are, and have been, paying for the shipment of cheap goods from Asia through our local ports to our stores and to stores all over the United States. At some point, people are going to decide that that allowing industry to harm our health and our physical environment for free isn't good for us.

EPA Holds Hearing On New Marine Diesel Rules

2009-08-08T00:24:25Z

Recently, the EPA has taken a number of positive steps towards reducing toxic air pollution from ships that call at U.S. ports. In 2008, EPA enacted regulations covering certain marine diesel engines. Earlier this year, EPA submitted a very far-sighted proposal to the International Maritime Organization to control diesel emissions from oceangoing vessels, both U.S. and foreign-flagged.

On August 6, 2009, EPA held a public hearing in Long Beach, California to take testimony on a proposed new rule for marine diesel engines. My colleague Rich Kassel attended a similar hearing in New York and blogged about it here. In brief, the proposed new rule would require all new engines in U.S.-flagged vessels to use relatively clean marine diesel fuel by 2016.

This rule is needed in case EPA's proposal to the IMO is delayed or weakened. A voluntary clean fuel program in the Los Angeles and Long Beach ports has not worked as hoped for. Marine fuel rules from the California Air Resources Board are still in litigation. We need strong national regulations to deal with the health risks from diesel pollution from ships.

The Ports of Los Angeles and Long Beach are, collectively, the fifth largest port in the world, and handle roughly 40% of all imports to the United States. The local ports' success has come at a very high price to public health in Southern California. Our ports are the biggest polluters in the most polluted region in the United States. The already high rates of asthma, lung cancer, cardio-respiratory and other diseases are rising sharply in the low-income and minority neighborhoods near the ports and near the highways and railyards that serve the ports. Diesel pollution from the goods movement industry is estimated to cause 3,700 premature deaths in California every year. Pollution from ocean-going vessels accounts for roughly half of the port-related diesel pollution in Southern California. Low-income and minority residents near the Southern California ports are disproportionately affected by this pollution.

This is a nationwide problem. EPA's analysis shows that, in 2020, if left unregulated, emissions from Category 3 marine engines will comprise 52.9% of mobile source diesel emissions nationally, as well as 24.4% of mobile source NOx (oxides of nitrogen) and 93.3% of mobile source SOx (oxides of sulfur).

The proposed EPA rule is expected to reduce pollution from oceangoing vessels substantially: by 2020, reductions are expected of 94,000 tons of PM2.5 (small particulate matter), 409,000 tons of NOx and 876,000 tons of SOx relative to the 2020 baseline. This is hugely important to California and to the nation.

Our hardworking summer intern Klementina Pavlova went with me to the hearing today. She was very impressed - as were the members of the EPA panel - by the testimony from local residents about the effects of air pollution on themselves and their families. That's why we do this work - it's not just some intellectual thing that dressed-up intellectuals talk (or blog) about. It's about people who are getting sick because the goods movement industry doesn't want to pay the cost to clean up industry's mess.

EPA estimates that its proposed new rule will return public health benefits in a ratio of 30 to 1. Those are pretty good odds. Let's put our chips there instead of continuing to gamble with the lives of people who live near our ports.

Don't Trade What You Don't Have

2009-07-20T17:32:36Z

Last week, the U.S. Court of Appeals for the D.C. Circuit decided a case that brought a breath of fresh air to the idea of cleaning up some of America's most polluted cities.

By way of context, in an area that is not meeting federal air quality standards, a new facility that will emit air pollution has to obtain pollution credits from another entity that has, for example, shut down. The idea is that air quality in the area will net out as even (or better, depending on the ratio of credits needed for new pollution), even given the pollution from the new facility.

One persistent problem with this kind of "offset" trading is that it can be harmful to people who live near polluters that buy emission credits from far away. Those people are exposed to more pollution than they should be, even though air quality in the larger region in general purportedly remains unchanged.

Another problem is detecting and preventing cheating. The D.C. Circuit case involved credits for ozone, known to us in Los Angeles as "smog." NRDC and others sued the U.S. EPA over a rule that allowed new, polluting facilities to meet the federal offset requirement "using credits from sources that shut down or curtailed operations as long ago as 1977." The EPA used to say that it was OK so long as the local air quality regulators had an "approved attainment plan" - in plain English, a plan showing EPA how the particular region intended to bring their area into compliance with federal clean air laws. If there were no approved attainment plan, then offset credits could only be used if "the proposed source is a replacement for the productive capacity represented by the proposed offset" - in plain English, if a new, cleaner facility was replacing an old, dirty one.

But EPA changed the rule to eliminate the requirement that there be an "approved attainment plan" before old offset credits could be used. Not so, said the court - that violated the Clean Air Act because, without an approved plan, there was no assurance that emissions reductions would be achieved "by the time the new source begins operation," rather than sometime later. That means that emissions may be higher right after the new source began operation, not lower - just the opposite of what the Clean Air Act requires.

This decision shows a healthy skepticism about emission trading programs that attempt to create current credits from long-past shutdowns. As Margot Roosevelt noted in the L.A. Times, the D.C. Circuit's decision is a stumbling block for the South Coast Air Quality Management District's attempt to do exactly this. NRDC and other groups are in litigation with the SCAQMD about its internal bank of emission credits. NRDC does not object to emission credit trading per se - but we do object to making up credits from events that happened long ago to allow current polluters to poison their neighbors.

We're All At Risk From Air Toxics

2009-06-26T18:48:09Z

The United States Environmental Protection Agency (EPA) on Wednesday released some very disturbing results of its analysis of air toxics data from 2002. EPA found that every U.S. resident has a higher cancer risk of greater than 10 in a million from exposure to air toxics. Every U.S. resident. What does a 10 in a million increased cancer risk mean? The Ports of Los Angeles and Long Beach have committed to not going forward with new projects if the projected increase in cancer risk from a project is 10 in a million or greater.

The EPA study also found that two million Americans have an increased cancer risk of more than 100 in a million from air toxics - a level of risk ten times higher than what is allowed at our country's busiest ports. The study itself is difficult to parse through, but here's a good summary.

There are some methodological questions about the study that I'm not clear about. For example, the potential cancer risk from diesel PM exhaust emissions is not addressed, even though, as EPA itself says, "It is particularly significant that the assessment did not quantify cancer risk from diesel PM, although EPA has concluded that the general population is exposed to levels close to or overlapping with apparent levels that have been linked to increase cancer risk in epidemiology studies." What that means to me is that EPA knows that the results from this study underestimate the actual cancer risk from air pollutants.

In fact, the cancer risk for diesel emissions has been addressed for the LA Ports area in the South Coast Air Quality Management District's MATES III study, which found elevated cancer risks of over 3,600 in a million near the ports. NRDC's scientists believe that diesel particulate matter is responsible for the vast majority of cancer risk from air toxics, and that noncancer impacts are tenfold greater for diesel.

The takeaway message from the EPA study is this: we have a huge public health problem in the U.S. as a result of polluted air. What is so frustrating to my NRDC Air Team colleagues and me is that most of our air pollution can be eliminated using current technology - for a price. So far, we as a society have not been willing to pay that price.