AIR POLLUTION:

'Diesel death zone' cleanup faces Supreme Court challenge

SAN PEDRO, Calif. -- If there's a computer on your desk, a Sony television in your den or a pair of Nike sneakers on your feet, you're connected to Pier 400 at the Port of Los Angeles here.

Sprawling nearly 500 acres and dotted with 10-story blue cranes, the pier is the hub of the biggest U.S. port -- and the generator of some of the nation's worst air pollution from ships, trucks and trains lugging containers stuffed with electronics, furniture, clothes and cars.

A decade ago, diesel exhaust swathed the port and neighborhoods just outside its fence in a deadly blanket of soot. Regulators calculated that the port's neighbors faced cancer risks so high that physicians dubbed the area the "diesel death zone."

The air is clearer these days because the port's Clean Truck Program has forced at least 1,500 of the dirtiest trucks off the road. Only rigs made after 2007 are allowed in the port, a move that authorities here say slashed diesel exhaust from trucks by as much as 80 percent.

But the program -- which has been widely praised by health advocates -- could be in jeopardy. Next week, the Supreme Court will hear a challenge to the program's central tenet.

At issue: Can the port require trucks to agree to certain terms before granting them access?

American Trucking Associations Inc. v. Los Angeles is the culmination of years of litigation from the trucking industry, which argues that the port lacks the authority to impose such a program. Drayage trucking, it says, has been deregulated by Congress, and those laws prohibit the port's program.

The case comes at a perilous time for the program. Five years in, the port is just beginning to enter the enforcement phase. Port officials won't publicly comment on the case, but privately, there is deep concern that if the high court doesn't uphold their authority, the program will come crashing down.

Public health groups share the port's apprehension about the Supreme Court case. They worry that the conservative majority of the Supreme Court hasn't been very receptive to environmental arguments. And other transportation hubs are watching closely, too: Several airports have programs built on similar principles, and the Port of New York and New Jersey has also tried to implement a clean trucks program but has been wary of legal challenges from the trucking industry.

"Depending on how they rule, it could basically invalidate the meat of the trucking program," said Tom Politeo of the Sierra Club's California chapter, who has been a longtime advocate on the issue.

If the court rules broadly, the justices could undermine large swaths of the basis of environmental programs in Los Angeles and elsewhere, said Kevin Mayer, an environmental lawyer at Crowell & Moring.

"If you invalidate this entire program as federally pre-empted, does that preclude the city of Los Angeles from otherwise enforcing its environmental agenda?" he asked. "In this context, it may well do that."

Study scares community

The air pollution at the port -- which is 20 miles south of downtown Los Angeles -- dates back decades, and no one knows it better than Politeo.

A computer software engineer with bushy hair and eyebrows, Politeo first became interested in the issue as a high-school runner at San Pedro High. Even in 1968, he said, the air weighed heavily on his lungs after races.

Over breakfast at Sacred Grounds coffee shop just a mile from the port, Politeo recalled how port traffic shot up in the late 1980s due to rapid shipping growth in Asia. During the 1990s, the port accounted for roughly 40 percent of all U.S. freight traffic.

But explosive growth brought serious air pollution. The Los Angeles Basin is a near-perfect pollution trap, as warmer inland air and wind hold cooler sea air -- and all those port emissions -- near the ground. The Palos Verdes Hills further bottle up that filthy air.

This phenomenon is easily seen from the hills. Look above the layer of clouds and the sky is bright blue; below, it's gray.

In 2000, local air officials released a report chronicling just how bad the pollution problem had become. The risk of cancer in communities near the port was 10 times higher than what the federal government considers acceptable. Asthma rates were on the rise, and the culprit was diesel exhaust, which contains fine particles that are capable of lodging deep in lungs. Emissions of harmful nitrogen dioxides were also high.

Politeo said the report sparked community outrage.

"Oh my God, if we don't do something, we won't be able to keep the air from getting worse," he said.

The report identified three factors contributing to the diesel and particulate matter problem: trucks, ships and rail yards. The data also highlighted the environmental justice aspect of the port. A map of the worst-hit areas, Politeo said, was nearly identical to a map showing the lowest real estate prices.

Around the same time, the port was looking to expand China Shipping's terminal.

The expansion would have added to congestion at the port and in nearby communities. The port estimated that it would result in a million more truck trips per year through the neighborhoods.

Community groups and the Natural Resources Defense Council filed litigation challenging the plan under the California Environmental Quality Act. In 2002, a California court of appeal sided with the advocates, and the port entered into a $50 million settlement that included environmental mitigation projects and the creation of the country's first green container terminal.

As the report on dangerous air quality was an eye-opener for the community, the lawsuit shocked the port, which put development on hold for several years as it wrestled with how to build neighborhood support.

The effort led in 2006 to the Clean Air Action Plan, which was quickly praised by public health advocates.

'Dramatic' results

The plan was aimed at addressing all three sources of exhaust: trucks, ships and trains.

Trucks only accounted for about a fifth of harmful emissions, but they were easier to address because ships and rail yards are subject to complicated federal regulations. Trucks, in other words, were a convenient target.

The Clean Truck Program was created through a series of negotiations involving environmentalists, community leaders and labor unions. It quickly earned the full backing of newly elected Mayor Antonio Villaraigosa (D), and although the port took some steps on ships -- requiring them to dock at lower speeds and use cleaner fuel -- the trucks program became the star of the port's environmental efforts.

The truck effort was modeled after a successful program at Los Angeles International Airport. At its heart was a "concession agreement," outlining criteria that a truck owner must meet before he or she may drive into the port. These included off-site parking plans so trucks didn't idle in neighborhoods, a maintenance requirement and a controversial measure that said all trucks must be part of trucking companies, not individual owner-operators.

The Sierra Club's Politeo said that the program always sought to fix shortcomings in federal regulations that weren't designed for such a large port.

"Our main program has been a one-size-fits-all federal policy for small ports that don't have an inversion problem," he said.

When the program launched in 2008, it banned trucks made before 1989, eventually phasing out any truck manufactured before 2007. The port also provided $44 million in payments to licensed motor carriers as incentives to purchase new, cleaner vehicles.

The results have been striking. Although the reduction in truck diesel exhaust may not be quite as high as the port's 80 percent calculation, there is little doubt that it has had a significant impact, said Andrea Hricko, a professor of clinical preventive medicine at the University of Southern California.

"The Clean Trucks program has been really critical to reducing emissions at the port itself and around it," Hricko said. "The monitoring might show more than 60 percent reductions, but that's still dramatic."

'Nothing more than muscle flexing'

While health advocates and labor celebrated the program's rollout in 2008, it barely took a day for truckers to challenge it in court.

The American Trucking Associations, a federation of 50 state organizations, sought an injunction. It pointed to an obscure law that was enacted in 1994, the Federal Aviation Administration Authorization Act, or FAAAA. The law at the time was the latest effort from Congress to deregulate interstate trucking and consequently prohibited -- or, in legal terms, pre-empted -- state and local governments from implementing programs similar to the port's truck effort.

Trucking companies also alleged that the port was actually seeking greater control over trucking operations under the auspices of an environmental program.

"These are requirements in there that should not be necessary and that are too far-reaching if their goal is to clean the air," said Fred Johring, the president of Golden State Express, which has 23 trucks licensed with the port. He added that a lot of the "redundancies" in the program "seem to be nothing more than muscle flexing."

Richard Pianka, a lawyer for the American Trucking Associations, emphasized that it supports "reasonable and rational efforts to improve air quality."

But the Clean Trucks program, he added, is a "licensing regime."

"Nobody has been able to explain how submitting an off-street parking plan will improve air quality," he added.

The association challenged several requirements in the program: parking plans, placard display, maintenance plans and demonstrating financial stability.

The most controversial element, it said, sought to undo the owner-operator provision that mandated truck drivers be part of a larger company instead of independent contractors.

In September 2011, the San Francisco-based 9th U.S. Circuit Court of Appeals sided with the port in all aspects except one: It struck down the owner-operator provision (E&ENews PM, Sept. 26, 2011).

Locals -- including some port officials -- said they expected that would be the end of the legal fight.

But Pianka and the truckers sought Supreme Court review of the placard and parking provisions because of the broader implications of the port's concession agreement authority.

"We don't think the port has the right to impose this, and if Los Angeles can do it, then anybody can do it," Pianka said. "And if they can, you are left with the same patchwork of regulations that Congress wanted to prevent."

Other business groups, including the U.S. Chamber of Commerce, have also taken an interest in the case. In court documents, the chamber underscored the importance of the case.

"The implications of this case are deep," the chamber wrote, "and cut across the entire field of federal regulation of both international and interstate commerce."

'Market participant'?

The key holding in the 9th Circuit ruling -- and what will likely be the focus of the Supreme Court arguments -- is whether the port qualifies as a "market participant."

Judges in the 9th Circuit ruled that the port does qualify and, consequently, can be exempt from the federal statute. That exemption is critical to the port's authority, said Melissa Lin Perrella of the Natural Resources Defense Council, which has filed documents to the court backing the port.

Lin Perrella said the port must prove that it was acting as a private company would in setting up the program. To do that, it relies on a few arguments, including that even though the city of Los Angeles owns it, the port is a $400 million business. Further, all the money the port makes must stay in the port -- none of it is transferred to the city and it receives no tax dollars. And, as the port has made clear to the court, it is constantly in competition with other ports in Mexico and Canada.

The port "operates as a self-supporting entity," it said in court documents. "That is, it retains its revenues and its profits, which are not passed on to the City but are used to operate the Port and to improve its infrastructure."

Further, the port argues that the provisions in question were recognized by the 9th Circuit as measures to court goodwill within the community, much as any business seeking development would.

NRDC sought to underscore that sentiment in its brief by comparing the port to other industries such as oil development and mining.

"If a private company could or would do what is being challenged, then there is a good chance that what the city did here is commercial in nature," Lin Perrella said over coffee at NRDC's beachfront offices in Santa Monica.

Mining companies and drillers, she noted, frequently obtain a social license to operate from communities. It's not a formal agreement, but it's an implicit acceptance that a community grants.

"The port is very similar," she went on. "If you look at them through that lens, you see that what the port did in trying to manage its environmental footprint, grow its business and get community support for its operations was completely reasonable and in the realm of what a private actor would do in a similar situation."

Bid to sway conservative justices

There is also a theme to both NRDC's and the port's briefs: They don't stress environmental effects. Both focus on the port as a business and a landowner, and its property rights.

Advocates say the effort is an appeal to the court's conservative wing, which has been skeptical of environmental arguments.

"Our brief is very environmentally driven but is written through this lens of what the business community is doing today," Lin Perrella said.

The port's position has garnered support from airport associations that, like LAX, could use the same authority for environmental programs. Other ports are also watching closely. The Port of New York and New Jersey's trucks program hasn't been as effective as Los Angeles', largely out of fear of litigation from trucking groups. New York Mayor Michael Bloomberg and Newark, N.J., Mayor Cory Booker even appeared at a rally for legislation years ago that would have granted ports concession agreement authority. (The legislation fizzled after Democratic losses in the 2010 midterm elections.)

"If the case were settled in a way that maintained [the program], it would possibly give the port authority here some more gumption to do something," said Amy Goldsmith, chairwoman of the Coalition for Healthy Ports in New York and New Jersey.

In the meantime, Politeo, whose life's work has been cleaning up the port, worries he may have to start over with the trucks if the court denies the port's ability to enforce the current program. Fines won't be enough, he says, and barring admission is the only way.

"If the ports can't keep the trucks out," he said, "we will again have a pollution problem."

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