AIR POLLUTION:

Supreme Court seems open to nixing L.A. 'clean truck' program

Supreme Court justices today appeared receptive to the trucking industry's call to strike down a Port of Los Angeles program designed to clean up some of the country's most diesel-polluted air.

The port, the largest in the country, launched its Clean Truck Program in 2008 and has cut diesel particulate emissions from trucks by more than 50 percent.

But trucking associations argue that the port's program, which requires trucks to meet certain conditions before obtaining access to the port, is prohibited by a 1994 federal law that deregulated their industry.

Conservative justices today embraced that sentiment and said the exemption to that law sought by the port -- that it is a "market participant" -- doesn't exist.

"There are exemptions to pre-emption," Justice Antonin Scalia said. "That's not one of them."

The conservative justices appeared particularly troubled that the program carried criminal penalties. Justice Anthony Kennedy, often considered the court's swing vote, raised concerns about when "criminal penalties are attached to a breach of the contract."

Attorney Steven Rosenthal, representing Los Angeles, called that argument from the American Trucking Associations a "red herring" because the port has never actually sought criminal penalties as part of the program.

That didn't seem to gain traction with Chief Justice John Roberts, however. He said such penalties are preventive.

"They keep people from committing crimes," he said.

The port launched the Clean Truck Program after local regulators found significantly elevated levels of diesel particulate matter in the area at the turn of the millenium, particularly in low-income and minority neighborhoods.

About 20 miles south of downtown Los Angeles, the port is perfectly situation to trap pollution; warm inland air and winds trap cooler sea air near the ground, and the nearby Palos Verdes Hills further bottle up the filthy air. Physicians labeled the area the "diesel death zone" (Greenwire, April 11).

Since then, the port has phased out roughly 1,500 dirty trucks and replaced them with vehicles built after 2007.

The program hinges on concession agreements that the port requires truckers to sign in order to gain access to the port. Among the provisions are off-site parking plans so trucks don't congest nearby neighborhoods, a placard requirement and a mandate that all truck drivers be part of larger trucking companies -- not independent owner-operators.

Public health advocates praised the program, and it has produced significant results. By port calculations, diesel particles from trucks have been slashed by 80 percent.

The program was quickly challenged by trucking associations, and today's arguments were the culmination of more than five years of litigation. The truckers contend that Congress deregulated their industry in order to prevent a state-by-state patchwork of regulations such as those implemented by the port.

Specifically, they point to the 1994 Federal Aviation Administration Authorization Act, or FAAAA, which they say pre-empts the port's program.

The truckers have seen mixed results in court. In September 2011, the San Francisco-based 9th U.S. Circuit Court of Appeals upheld several of the program's provisions but struck down the owner-operator requirement (E&ENews PM, Sept. 26, 2011).

What's left after that ruling are relatively minor requirements -- the placard and parking plans -- but truckers sought Supreme Court review because of the broader issue: whether the port has concession agreement authority.

The court's liberal justices sought to sidestep the criminal issue, as well as the market participant exemption. Justice Sonia Sotomayor said the placard requirement appeared to be routine.

It "seems impossible for me to believe that the state couldn't require you to put a little placard" in your window, said Sotomayor.

Justice Stephen Breyer similarly raised concerns about the parking plan concession. "Of course they should be able to do that," he said, but noted that the FAAAA exemption that would allow that requirement hasn't been presented in the case.

The Obama administration, represented by John Bash of the Department of Justice, argued that the port program was pre-empted by the federal law largely because of the criminal penalties.

Both Sotomayor and Justice Elena Kagan asked whether the port could install the requirements through contracts, removing the criminal aspect.

But Bash again said it couldn't because it is a local authority.

"It is in every way a part of the city," he said.

The 9th Circuit said the $400 million business qualifies as a market participant. Other transportation hubs are watching the case, and that issue, closely. The trucks program was based on a Los Angeles International Airport model, and other airports have filed documents to the Supreme Court backing the program.

Rosenthal said the requirements imposed by the program are "indistinguishable" from conditions other landowners and businesses place on their property to gain access.

He was quickly rebuffed by Scalia, however.

"Do market participants impose civil and criminal penalties?" he asked.

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