David Pettit's Blog: Environmental Justice

Jobs -- Or NFL-Sized Cow Pasture?

2010-04-05T22:03:38Z

In 2009, the California legislature gave billionaire Ed Roski an exemption from the California Environmental Quality Act (commonly known as “CEQA”) to construct a new football stadium in the City of Industry. That meant that a judge could never rule on whether the environmental review for this huge project complied with California law. I blogged about what a bad idea this was here.

The argument that carried the day was that the CEQA exemption was needed to create jobs. Majestic Realty Co., of which Roski is CEO, estimated that the stadium project would create over 12,000 construction jobs and 6,735 permanent jobs. The website for the stadium, which apparently hasn’t been updated recently, claims that “If approved by the City, construction may begin as early as Fourth Quarter 2008.”

I wanted to see for myself how this construction project was going, so the other day I drove to the site to take a look. Here is what I saw:

Where are the 12,000 construction jobs? As far as I could tell, nary a shovel has been turned on the site. The only use appears to be as a dumping ground for dirt. Where is the stadium? Where are the 6,735 permanent jobs? Where are the 75,000 fans? The only spectator I could see was this one:

I think that what this shows is that the notion that environmental review is a job-killer is bogus. Realistically, nothing is going to be built on that site until the NFL gives Los Angeles a team. The California legislature fell for the fumblerooski in thinking that giving Roski a free pass from CEQA would make a difference.

What's worse, Roski's success has emboldened others to run to the Legislature to cut special deals exempting projects from CEQA. NRDC and our allies will fight those efforts because the notion that environmental review is a job-killer is as empty as Roski's stadium site.

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."

A Tale Of Two Parties

2009-09-30T00:45:14Z

At Resurrection Church in Boyle Heights, California, a party was thrown recently to celebrate the City of Vernon's withdrawal of a proposal to build a huge powerplant upwind from Boyle Heights and the surrounding, largely Latino communities. NRDC opposed this project at the California Energy Commission and had a role in convincing the County of Los Angeles and the City of Los Angeles to go on record against it as well.

Monsignor John Moretta (known to the community as "Father John") spoke about NRDC's help to the community, as did Los Angeles County Supervisor Gloria Molina and California Assemblyman John Perez. Sup. Molina was especially strong in reminding the audience that they are empowered and can fight back against their neighborhood being a toxic dumping ground for industry.

The kids understood this too: here is some of their artwork:

My colleagues Adrian Martinez, Jessica Lass and Morgan Wyenn were with me at the event. It was very gratifying to hear the appreciation from the local residents who were there. As I told the crowd, this is the kind of work we all went through school to do.

I went to another party last week in Santa Monica, California that may seem different at first glance but was similar in what it celebrated: local empowerment. Santa Monicans For Renters Rights, known locally as "SMRR," was celebrating its 30th anniversary. SMRR started as a tenants' rights organization, as the name suggests, and evolved into a progressive political organization that has had a majority on the Santa Monica City Council for many years now. Among its other achievements, Santa Monica is one of the greenest cities in the world. NRDC has worked with the City and with the local school board to make that happen.

What is similar about the residents of Boyle Heights and the residents of Santa Monica is they have learned that they can band together to fight harmful outside interests, whether those be polluters or land speculators. When they need legal counsel, NRDC is the earth's best defense.

East Yards Communities For Environmental Justice

2009-09-24T16:36:09Z

This is just a quick note to ask you take a look at a story in today's LA Times about the organization East Yards Communities for Environmental Justice and its director, Angelo Logan. Angelo and East Yards are leaders in the EJ community in Southern California and we in the LA office of NRDC are proud to work with them.

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.

Smog In A Can

2009-05-05T16:15:41Z

Last weekend, the USC Annenberg Institute for Justice and Journalism held a series of seminars for journalists selected from around the country. Barry Wallerstein, the Executive Officer of the South Coast Air Quality Management District, Jane Williams, the Executive Director of California Communities Against Toxics, John Froines, from the UCLA Particle Center, and I spoke at a Saturday session. We probably scared them out of breathing.

Barry gave an overview of the air pollution issues in the South Coast basin in California, a four-county region of over 10,000 square miles where 16.5 million people live, including me. We have millions of cars, hundreds of thousands of diesel trucks, and the biggest ports in the country. We also have the worst air quality in the country when you look at ozone and fine particulates (also called PM2.5, referring to their size of 2.5 microns or smaller). In fact, looking at eight-hour ozone exposures, we have over 24% of the population-weighted exposures above the federal standards. And for annual average PM2.5, we have - get this - over 51% of the population-weighted exposures above the federal standards. This muck, over 80 percent of which comes from mobile sources such as cars and trucks, causes over 5,000 premature deaths per year in the South Coast basin - more deaths than are caused each year by homicide in California.

Jane, who has devoted her career to the cause of environmental justice, talked about the Mothers of East L.A. march in 1989 against a local incinerator project (NRDC represented the Mothers and still does) as one of the foundational events of the environmental justice movement. Starting with hazardous waste issues, the "EJ" movement, with a history of female leadership, has expanded its scope of work to include air and water pollution and global warming issues. EJ advocates such as Jane have a bigger presence in the California legislature than in any other state.

John talked about one of the emerging issues in the control of air pollution: ultrafine particles, those 0.1 micron or smaller - the size of viruses. These particles, most of which come from mobile sources, carry metals and organic chemicals and can penetrate into the mitochondria and nuclei in our cells. They have been linked to heart disease and inflammation of the brain. John said that, when you drive up the I-710 from the ports to downtown Los Angeles, you take in 1.5 million ultrafine particles with every breath. How many come back out?

I talked about environmental justice related litigation that NRDC has participated in, from the early days of the Mothers of East L.A. march to today. In fact, much of our diesel-related work has environmental justice implications because the people in Southern California who are suffering the most from diesel pollution are those who live near our ports and port-serving freeways - a population that is largely poor and minority. And we still see situations where a polluting facility that could never be approved in a wealthy, white community is proposed for a poor, minority community - like the Vernon powerplant project.

As part of Barry's talk, he showed the attendees a slide of a joke product from the 50's: L.A. smog in a can. Well, it's out of the can, and all of us here in Southern California know it.

Fig Leaf

2009-04-23T20:02:13Z

The Los Angeles County Board of Supervisors voted last Tuesday to oppose a "get out of jail free" bill that the South Coast Air Quality Management District (the "District") is flogging in Sacramento. The District got caught breaking the law and is now trying to scare the state legislators into changing the law in its favor - in a way that will hurt, not help, cleaning up the air in the dirtiest air basin in the country.

Here's the context. Last summer, NRDC and other public interest groups won a lawsuit over the District's failure to conduct a proper (or any) environmental review when it adopted a regulation that would have added many tons of pollution to the South Coast basin. I've blogged about this before here.

The lawsuit put a halt to the District's plan to sell scarce pollution credits to big businesses such as power generators and refineries, costing the District over $400 million. One reason this plan was so pernicious is that the District was raiding its own "bank account" of credits for its own benefit, leaving fewer and fewer credits for the essential public services and small businesses to which the District had promised credits at no cost.

The District is now shamelessly exploiting the problem that it created by trying to scare the legislature into enacting a bill that the District wrote and that would eliminate the basis for the lawsuit that the District lost. The District and its lobbyists are telling legislators that raw sewage will flow in the streets (I'm not making this up), police stations and hospitals cannot be built, older polluting facilities cannot be upgraded etc. because of the lawsuit. In short, life as we know it will come to an end. All this because the District does not want to disclose the environmental ramifications of its actions, analyze greener alternatives, and reduce any unavoidable impacts - as California law requires. In fact, if the District and its expensive consultants just create a decent environmental review - which we asked them to do in 2006 - the lawsuit will be over. This could happen this year.

But there's more. Instead of just pretending to help small businesses that can't get emission credits - in part because the District sucked up the credits to sell to big business -- the District tacked some text onto its proposed legislation that could put it back into the business of selling emission credits to big businesses. Yes, that's right - the District wants to recreate the very system that led to the problem that it claims to want to fix: more credits for big businesses and fewer credits for small businesses and essential public services. This is Robin Hood in reverse.

At last Tuesday's Board of Supervisors hearing, Supervisor Gloria Molina introduced a motion supporting legislation that would preserve the access of small businesses and essential public services to free emission credits, but opposing allowing the District to once again raid its "bank" of credits for cash. I spoke in support of her motion. Supervisor Molina, Supervisor Zev Yaroslavsky and Supervisor Mark Ridley-Thomas, each of whom eventually voted for Supervisor Molina's motion, listened patiently as the District, its lobbyists, and the usual industry reps spoke in opposition, trying to play up the suffering of small business while running away from the plain language in the District's own proposed legislation about selling credits to power companies. Finally, Supervisor Yaroslovsky had heard enough, and told the District speakers to their face that their doom and gloom about small business was just a "fig leaf" intended to cover up the District's real intent - to sell credits to polluters.

He was right. Supervisor Molina's motion passed and we are making sure that every legislator in Sacramento knows about it. We are working hard to solve the problem of getting free emission credits where they need to go. But we will continue to oppose any plan that will allow the District to profit from making air quality worse.

Environmental Justice Groups Are Working On The Railroad

2009-01-26T23:27:38Z

Railyards in California and elsewhere are huge sources of deadly diesel pollution. The California Air Resources Board ("CARB") has conducted health risk assessments of the major California railyards and found that railyard operations have increased the cancer risk for nearly 3 million California residents. The two major railroads that serve California, BNSF and Union Pacific, have presented mitigation plans that do not come close to fixing the problems that their operations cause.

In April, 2008, the Center for Community Action and Environmental Justice, Coalition for a Safe Environment, Communities for a Better Environment, East Yard Communities for Environmental Justice and Westside Residents for Clean Air Now petitioned CARB to impose state-wide rules to reduce pollution from California railyards. CARB initially denied their petition but reversed itself on January 21, 2009. CARB acknowledged that "railyards are responsible for an unacceptably high risk of exposure to diesel particulate matter in nearby communities," and agreed to hold a public hearing before June 30, 2009 on a plan designed to achieve emission reductions from locomotives and at California railyards "beyond the reductions that have been achieved or will be achieved from previously adopted federal and state regulations and state memoranda of understanding."

NRDC has worked for years to clean up the freight movement system in the U.S., and we acknowledge that, on a ton per mile basis, trains are more efficient and cleaner than diesel trucks for hauling freight. But this does not mean that trains and railyards get a free ride on the pollution they cause, as my colleague Adrian Martinez has pointed out. We applaud the result that the environmental justice groups have achieved before CARB. Let's get this mess cleaned up.

Judge Says "No Más" to New Polluting Power Plants Near LA

2008-11-04T02:45:06Z

My NRDC colleague Tim Grabiel preserved a huge victory today in court. By way of context, on July 28, 2008, Tim and his co-counsel won a California Environmental Quality Act (CEQA) case that prevented the South Coast Air Quality Management District (the "District") from selling emissions credits to polluters without having completed a decent environmental review. Rather than comply, the District tried to subvert the court's ruling by submitting a proposed judgment and writ that would have effectively undone what the court had ordered.

Today, the Honorable Ann. I. Jones rejected the District's shameless attempt to circumnavigate around her July 28th ruling. The court was clear that any attempt to make emissions credits out of thin air -- or, more apropos, dirty air -- and hand them out to power plants and refineries and -- get this, a beer company -- would amount to contempt of court.

The District tried to get a judgment that would allow it to behave as though it had won the CEQA case, claiming that hospitals and schools would shut down, the lights would go off, dogs and cats would be living together. . . . massive pandemonium, if their request were denied. But Judge Jones literally said "no más" to the District's repeated claims of gloom and doom, and flat-out rejected this latest attempt to get around the practical implications of her ruling. As a result, there will be no distributing of any bogus credits until the air district complies with the law. The lungs of Southern California residents breathed a collective sigh of relief!

The District is already trying to spin Judge Jones' ruling as catastrophic, perhaps gearing up for a battle in Sacramento, Washington D.C., or the Court of Appeal. But that would be a shame. Instead, as NRDC has repeatedly offered, we should be meeting to resolve these issues out of the court rooms and legislative backrooms. It is an invitation that we hope the air district and industry will finally take us up on.

The FMC Picks a Fight.

2008-10-31T00:33:14Z

Two days ago, my colleague Adrian Martinez wrote about a scheduled hearing where the Federal Maritime Commission (FMC) would decide whether to file a lawsuit against the ports of Los Angeles and Long Beach to enjoin all or parts of the ports' clean trucks programs. Yesterday, according to a confusing press release from the FMC, in a 2-1 decision the FMC decided to sue the ports over some portions of the programs.

This is a setback for the cause of clean air at the ports, as Senator Feinstein and others have recognized. In taking this unprecedented step, the FMC flouted the National Environmental Policy Act (NEPA), Clean Air Act, and the Energy Policy and Conservation Act, ostensibly because FMC staff thinks that the air near our ports could be cleaned up more cheaply.

It must be great to be able to make that analysis from a desk somewhere in Washington, D.C., when the Los Angeles and Long Beach Harbor Commissions and City Councils, in long, public proceedings, have decided how best to fix our local problems.

Fortunately, the FMC does not have the last word in this matter. NRDC, Sierra Club and the Coalition for Clean Air will be filing a lawsuit this week to rein in the FMC's cavalier treatment of federal environmental law and put a stop to this rogue behavior before it spreads to other ports. In our democracy, two appointed officials in Washington, D.C. do not get to substitute their judgment for the decisions of elected decisionmakers about local pollution control. FMC Commissioner Brennan agrees. His statement in dissent of the FMC's vote is so strong that I'm taking the liberty of quoting it in full below:

Commissioner Brennan's statement:

In an October 29th closed-session meeting of the Federal Maritime Commission, Commissioner Joseph E. Brennan voted against a motion to seek a federal injunction to stop the Clean Trucks Program (CTP) of the Port of Los Angeles.

Commissioner Brennan considers it a colossal mistake for the Commission to try to block a program of environmental protection and economic expansion that has been endorsed as reasonable and necessary by, among others, Los Angeles Mayor Antonio Villaraigosa, the Los Angeles Board of Harbor Commissioners, U.S. Senators Dianne Feinstein and Barbara Boxer, Speaker of the House Nancy Pelosi, U.S. Representatives Laura Richardson and Loretta Sanchez, and some 30 other members of the California delegation of the U.S. House of Representatives.

In Mr. Brennan's view, the Commission should give more deference to the policy judgments made in this matter by elected officials. Following years of extensive study in a public process with input from all concerned, Los Angeles has adopted a Clean Trucks Program that fairly falls within the broad definition of "reasonable" under the Shipping Act. Under these circumstances, the Commission majority has no basis for forcing the Port of Los Angeles to adopt an alternative port-management model that individual commissioners happen to think is reasonable.

Commissioner Brennan's vote against going to court represents his recognition that Los Angeles has superior knowledge of port operations and a direct interest in seeing the Clean Trucks Program succeed so as to clean up the air, allow expansion of the infrastructure, and promote efficient port operations. Brennan said he is appalled that the Commission's decision to seek an injunction displays a bureaucratic arrogance and ignores the felt needs of the citizens of Los Angeles to clean up their air, expand their port, and promote a living wage for truck drivers working at the port.

Brennan noted that the federal courts in California recently on two occasions rebuffed attempts by the trucking lobby to block the Clean Trucks Program. Brennan says he believes the FMC's attempt to block the CTP should, and will, meet the same fate in court.

For the Commissioner, the basic question under the Shipping Act is whether it is reasonable for the Port of Los Angeles to require truck drivers to be employees. It is likely, as Los Angeles argues, that so-called independent owner-operators will not have the control, capital, and economies of scale needed to keep their trucks within environmental standards. On that basis alone, it would be reasonable for Los Angeles to phase in its employee requirement.

Commissioner Brennan noted that the so-called independent owner-operators in Los Angeles earn, on average, only $29,000 annually, which qualifies a family of four for over $18,000 in public assistance, such as the earned-income tax credit, Section 8 housing, reduced-price school meals, and Women, Infants, and Children (WIC). In addition, a task force authorized by the Office of the Attorney General in California found numerous instances of trucking companies' illegally misclassifying workers as "independent contractors" to avoid the cost of workers' compensation, disability, and minimum wage laws. Attorney General Jerry Brown has brought suit on the basis of these alleged violations.

Commissioner Brennan asked his fellow commissioners to recognize these and other economic realities when evaluating whether any increased costs associated with the Clean Trucks Program would arguably be outweighed by positive effects on the health, safety, and welfare of the citizens of Los Angeles. He believes the Commission can legitimately take into account that the employee mandate could cause large numbers of truck drivers to no longer need government assistance, effectively ending taxpayer subsidies of large commercial shippers that can well afford to make payments supporting a living wage for truck drivers. There is simply no cause for the taxpayers of Los Angeles to subsidize large shippers.

A Truckload of Hypocrisy

2008-09-17T17:53:32Z

As reported in the Los Angeles Times on Saturday, September 13, 2008, the Federal Maritime Commission (FMC) has taken steps that threaten to shut down the entire Clean Trucks Program enacted by the Ports of Los Angeles and Long Beach - a program that is based on the phasing out of older trucks. The FMC action, not coincidentally, follows a resounding legal defeat of the American Trucking Association (ATA), the same group that has repeatedly said, and whose lawyer told a federal judge in open court, that the ATA did not oppose the phased-in ban. The question at hand is whether the FMC can legally stop the Clean Trucks Plans from moving forward, and it seems that ATA hopes this is the case.

Last month, the ATA filed a lawsuit in federal court challenging the Ports' trucking concession plans, but purporting not to challenge the ban of older trucks. On August 18, 2008, the ATA filed a document with the FMC titled "Comments of the Intermodal Motor Carriers Conference, American Trucking Associations." At page six of this document, ATA asks the FMC to "Undertake A Competitive Review And Analysis Of The Ports' Concession Programs And Assess The Impact Of Enforcement Of The Clean Truck Programs' October 1 Deadlines Prior To Permitting The Agreement To Take Effect." Sounds like ATA wants the entire Clean Trucks Program stopped, doesn't it?

The FMC took the bait, and on September 12, 2008, three days after ATA lost its effort in federal court to stop a critical part of the Clean Trucks Plan, the FMC issued a press release stating:

By a 2-1 vote, the Federal Maritime Commission determined ...additional information is essential to the Commission's understanding of the costs and benefits of the Ports' Clean Truck Program (CTP), and the likely effect of the Agreement on transportation costs and services. Such analysis is required of the Commission as mandated by the Shipping Act of 1984.

FMC Commissioner Brennan got the drift and didn't like it. He wrote in dissent:

"...voted "no" to a staff recommendation to further delay a comprehensive environmental and economic plan of the Ports of Los Angeles and Long Beach contained in their cooperative working agreement. Mr. Brennan believes that the Commission is making a monumental mistake in delaying, yet again, the overall environmental plan that the cities of Los Angeles and Long Beach have developed to address serious health concerns and needed port expansion in the region. Earlier, in April of 2008, the Commission delayed the Ports' related implementation agreement by requesting additional information. Some of the questions in the April request are essentially repeated in this latest September request.

So where does this leave us? The ATA did not get what it wanted in its federal court lawsuit so it wants to move its fight, whatever the public health and economic cost, to a friendlier "court," the FMC. We'll be there too, ready to defend the health of millions of Southern California residents who breathe the pollution that ATA's members produce.

Airball

2008-09-10T18:22:12Z

The American Trucking Association ("ATA") bragged that its lawsuit, aimed at killing the truck concession plans of the Ports of Los Angeles and Long Beach, was a "slam dunk." United States District Court Judge Christina Snyder disagreed in a ruling issued on September 9, 2008, denying ATA's request for a preliminary injunction that would have put the concession plans on ice.

There are two main requirements for a preliminary injunction: probability of success on the merits, and a showing of irreparable injury. ATA threw up bricks on each issue.

For a bit of context, ATA's motion was based on the Federal Aviation Administration Authorization Act (the "FAAA"), part of which has a preemption clause for local regulation of trucking prices and services. Within the FAAA, however, is a big exception for local measures that enhance safety. The Ports argued that the L.A. and Long Beach concession agreements are necessary so that (among other reasons) the Ports can know who is driving onto their property - property that could be a major target for a terrorist attack. Recognizing this, Judge Snyder ruled that the Ports showed a "significant probability" that their trucking concession plans are within the safety exception of the FAAA. Airball no. 1 for ATA.

ATA's efforts to prove irreparable injury were skimpy at best. They offered exactly three declarations (out of 1,000 or more licensed trucking companies that work the Ports), none of which had more than speculation that their company would go out of business, lose customers, or suffer any more inconvenience than filling out some paperwork. Arrayed against this was strong evidence of injury to the Ports by having Port security compromised, and injury to the public by allowing thousands upon thousands of old, dirty diesel trucks to continue driving down our streets without anyone responsible for cleaning them up. What's worse for ATA is that big trucking companies that are ATA members have told the Ports that they want to work under the Ports' concession plans. Based on this evidence, Judge Snyder ruled that ATA had not proved irreparable injury; nor had it proved that the balance of hardships tipped in its favor, or that the public interest supported an injunction. Airball no. 2 for ATA.

Judge Snyder's ruling keeps alive the most progressive, far-reaching clean trucking plan in the country. Take a look at an excellent Newsweek piece on the LA and Long Beach ports. Every port has the problems that the Ports of LA and Long Beach do because every port depends on diesel power to move freight. In my view, every port can and should look to the Port of LA for a model of how to fix the problem of pollution from diesel trucks.

Not a Magic Bus

2008-08-26T01:45:46Z

Los Angeles Superior Court Judge Thomas McKnew ruled today against NRDC and NRDC’s client, the Bus Riders Union of Los Angeles (BRU), in a lawsuit brought against the L.A. Metropolitan Transportation Authority (MTA) challenging on environmental grounds the MTA’s July, 2007 transit fare increases. NRDC and BRU argued that the very substantial fare increases would have physical effects on the environment because they would cause many thousands of people to turn to automobiles to travel to work, school etc. MTA conceded that there would be effects on the environment, but argued that it was exempt from environmental review under a California statute because the fare increases were going to pay for increases in operating expenses.

NRDC’s and BRU’s view of the administrative record was that MTA was running a surplus in its operating budget, and needed more money to pay for new, expensive capital projects that shortchanged LA’s 500,000 daily bus riders in favor of the far fewer rail riders. Judge McKnew disagreed, and so the issue will be decided in the California appellate courts.

This case is just one piece of a larger struggle to make public transit clean, efficient and affordable. At a public hearing of the House Subcommittee on the Coast Guard and Maritime Transportation on August 4, 2008, I and others testified about the public health and global warming problems caused by our reliance on fossil-fueled transit. Congress will be struggling with this issue next year when the SAFETEA-LU surface transit bill is up for reauthorization.

It should be clear to everyone that we can’t drive our way out of $4.00 per gallon gas prices or make the price of gas drop by building more freeways. We need ways to incentivize drivers to get out of their cars and take public transit – but increasing transit fares in order to build additional underused rail lines while ignoring the needs of 500,000 daily bus riders in Los Angeles is not a smart way to do that.

Monopoly Money Doesn’t Work in Real Life

2008-08-19T01:29:21Z

You can’t have an energy credit trading system with phony credits. Even worse – you can’t have an energy credit trading system when the organization that controls the credits knows that they are phony. That’s like letting counterfeiters take over the U.S. Mint.

Today, NRDC -- along with Communities For A Better Environment, Coalition For A Safe Environment, and Desert Citizens Against Pollution -- filed a lawsuit in federal court in Los Angeles, against the regional air regulators, the South Coast Air Quality Management Board (“SCAQMD”). The suit alleges that SCAQMD’s air pollution credits violate federal Clean Air Act requirements that credits be real, surplus, enforceable, quantifiable, and permanent. We believe, and are prepared to prove, that SCAQMD distributed and sold these invalid credits to countless polluting facilities for nearly two decades, introducing unlawful pollution into the South Coast Air Basin, a huge area that includes all of Orange County and significant portions of Los Angeles, Riverside, and San Bernardino Counties, and also happens to be the dirtiest air basin in the country.

Our lawsuit rests on data from the state confirming that SCAQMD, purporting to hold 124.46 tons per day of pre-1990 credits in its offset accounts, violated the federal offset requirements, and that no documents exist, or have ever existed, to verify the validity of these credits. When you add up every credit SCAQMD sold or handed out to polluters during the past 17 years, the air district actually has a negative balance in its offset accounts – although it is still giving away and/or selling offset credits. If you tried this with your checking account, checks would be bouncing all over town. We are asking the federal court to conduct an accounting to see just how many – if any – legitimate offset credits SCAQMD has left, and to prohibit SCAQMD from using phony credits to allow more pollution in Southern California.

Here’s the background. Under the Clean Air Act, polluted areas such as Los Angeles are required to implement a program to control pollution from new sources of emissions. These can include emission offset trading programs that require new sources to obtain credits for every pound of new pollution that they propose to emit. Emission reduction credits, in theory, represent quantified reductions of “criteria pollutants” and ozone precursors—CO, nitrogen oxides (NOx), PM10, volatile organic compounds (VOCs), and sulfur oxides (SOx)—that result from the installation of new technology at, or shutdowns of, old polluting sources. As part of its program, SCAQMD has adopted a trading system through which all new sources must obtain emissions reduction credits before beginning construction. Thus, no new emissions of the specified pollutants may occur in the SCAQMD’s jurisdiction unless a facility has obtained sufficient credits to offset its projected emissions.

Under federal law, a valid emission reduction credit must be real, surplus, enforceable, quantifiable, and permanent. All reductions must also have legal documentation. There is no dispute that these are the rules. But SCAQMD has not played by the rules.

AQMD contends that the polluting facilities in question, in this case 10 power plants to be built in the Southland, are necessary to meet the region’s growing demand for power. But a recent study confirms that much, if not all, of the region’s energy demand can be met by employing energy efficiency measures and investing in transmission lines to wind and solar plants scheduled to become available by 2013. And those facilities, the coalition counters, should have to buy the credits on the open market as originally intended under the Clean Air Act.

If the money factor wasn’t enough, a recent AQMD report confirmed that constructing just one of the 10 proposed power plants in the City of Vernon will likely result in killing anywhere from four to 11 people each year, causing hundreds of premature deaths over the life of the facility. The plant is also planned for construction next to a heavily populated, majority Latino neighborhood.

Thanks to a recent court win over how SCAQMD creates the credits, plans to build those 10 power plants near Vernon are on ice for now. However, if Plaintiffs win today’s lawsuit, AQMD will be required to end the use of unlawful credits and implement a program to reduce emissions in amounts equal to the emissions that were unlawfully allowed.

Our Lungs Are Not For Sale

2008-08-01T01:17:57Z

NRDC and its allies Communities for a Better Environment, Coalition for a Safe Environment, and California Communities Against Toxics won a huge victory on July 28, 2008, when the Los Angeles County Superior Court ruled in their favor in a CEQA case challenging the South Coast Air Quality Management District’s “Priority Reserve” rules.

Here is the context for this win. Because the LA area is in “non-attainment” under the federal Clean Air Act for PM2.5 particulate matter (the really small stuff), a new facility can’t be built that emits PM2.5 particles unless it can buy credits on the open market for the amount particulate matter that it plans to emit. The credits typically come from existing, polluting companies that shut down or that are emitting less than they are permitted to do. Credits for PM2.5 have become hugely expensive in this market as a result of small supply and huge demand. The SCAQMD became concerned that facilities like hospitals and police stations might not get built because of this, and so created a “bank” for PM 2.5 credits that SCAQMD would give away for free to these public uses. This was called the “Priority Reserve.”

What the lawsuit is about is that SCAQMD decided to open up the Priority Reserve to private, profit-making electricity generating facilities such as the proposed Vernon Powerplant, and sell PM 2.5 credits to such facilities at far below market value. This meant that communities like Boyle Heights would be subjected to many tons of pollutants by facilities situated literally next door. Selling these credits at a cut-rate price is also a subversion of the market-based system that is doing exactly what it is supposed to do: make credits expensive in order to incentivize conservation, innovation and non-fossil fuel sources of power. Moreover, SCAQMD stands to make over $400 million by selling these credits: that is the price (at below-market rates) of the PM 2.5 credits they hope to sell to electrical plants and, eventually, to oil companies.

This twist to this whole scenario is that SCAQMD is the agency that is supposed to protect us against air pollution, but by making these credits available, and on the cheap, we could actually end up with more air pollution. Their response is that we need more power in the LA area. That may or may not be so, but SCAQMD has exactly zero expertise in this area (that is the job of the California Energy Commission), and the shoddy environmental documents that SCAQMD produced did not back up their excuse.

So, NRDC and its allies sued SCAQMD under the California Environmental Quality Act (CEQA), arguing that AQMD could not open its Priority Reserve to private entities such as the proposed Vernon Powerplant without doing full environmental review. Judge Jones of the LA Superior Court agreed in a decision issued on July 28, 2008. In her order, Judge Jones prohibited AQMD from “undertaking any action to further implement these rules” without complying with CEQA. It should take 1 to 2 years for AQMD to complete a decent environmental review.

In the mean time, projects such as the Vernon Powerplant cannot go forward unless they can buy credits on the open market, without governmental subsidies. That is as it should be. The health of the public cannot be priced and sold like a commodity.