Justices request Obama admin views on truck-pollution initiative

Corrections appended.

The Supreme Court today asked the Obama administration to weigh in on the legality of the clean truck program introduced by the Port of Los Angeles.

In a September ruling, the San Francisco-based 9th U.S. Circuit Court of Appeals upheld the bulk of the program while invalidating one section (E&ENews PM, Sept. 26, 2011).

Although the Supreme Court didn't say it will definitely hear the case, American Trucking Associations v. City of Los Angeles, today's request that Solicitor General Donald Verrilli offer his views heightens the chance that the court will eventually review the 9th Circuit ruling.

Introduced in 2008, the clean truck program placed restrictions upon operators of "drayage" trucks, which are used to transport cargo, as part of an effort to reduce air pollution.


Under the terms of the proposal, older trucks were banned and incentives given to companies to buy new trucks.

The American Trucking Associations launched a legal challenge to various provisions.

The 9th Circuit ruled in favor of the port on four of five points but invalidated a requirement that trucking companies transition to a system in which all drivers are employees rather than independent owner-operators.

The trucking group sought Supreme Court review, arguing in part that the Federal Aviation Administration Authorization Act (FAAAA) pre-empts local regulations of the type enacted by the port.

In the challengers' petition, attorney Roy Englert, of Robbins, Russell, Englert, Orseck, Untereiner & Sauber, wrote that the 9th Circuit ruling creates conflicts with federal authority that "threaten to create the very patchwork of regulation the FAAAA was enacted to prevent."

The Natural Resources Defense Council, which is a party in the case, backed the 9th Circuit's rationale. Attorney Melissa Lin Perrella stressed that the program's main purpose is to "advance the port's economic interests." That can only be done by undertaking measures to mitigate the environmental impact because of local opposition to other proposals, she added.

The dispute "illustrates how any attempt by the port to abandon its green growth strategy would severely threaten the vitality of its operations," Perrella wrote.

In an email today, she noted that it is "not uncommon" for the Supreme Court to ask for the solicitor general's views on a case.

In a statement today, American Trucking Associations spokesman Sean McNally pointed out that at an earlier stage of the litigation, the United States filed a brief "largely agreeing" with the challengers on the federal preemption issue. The trucking group wants to "ensure that the remaining provisions of the port's scheme are also struck down," he added.

A spokesman for the port could not be reached for comment.

Court declines 2 environmental cases

In other action today, the Supreme Court declined to review two other cases involving environmental issues.

The first, Kitsap Alliance of Property Owners v. Central Puget Sound Growth Management Hearings Board, was a challenge to a Washington state ordinance that places restrictions on shoreline development in order to protect fish and wildlife habitats.

Kitsap Alliance of Property Owners, represented by the conservative, Sacramento-based Pacific Legal Foundation, claimed that the regulations, approved by Kitsap County, were not based on specific enough scientific claims.

The ordinance requires shoreline property owners to create a buffer for use as a conservation area as part of any development plan.

The state's court of appeals held that the ordinance was not an unconstitutional seizure of private property in violation of the Fifth Amendment of the Constitution because the county had demonstrated there was a clear public purpose and the ordinance was approved after appropriate consideration. By declining to intervene, the Supreme Court left that ruling intact.

The second case, Marina Point Development Associates v. Center for Biological Diversity, involved the circumstances in which attorney's fees are due in litigation under the Endangered Species Act.

The Center for Biological Diversity was awarded $1.1 million in attorneys' fees and costs after pursuing litigation opposing a development in order to protect bald eagles.

The company behind the project, Marine Point Development Associates, wanted to build condominiums on a site in the San Bernadino Mountains in California.

On appeal, the San Francisco-based 9th U.S. Circuit Court of Appeals had initially ruled in favor of Marine Point on all issues, noting that the U.S. Fish and Wildlife Service had removed the bald eagle from Endangered Species Act protection in 2007. CBD had filed suit in 2004. The court also concluded that "the evidence cannot support a determination that Marina Point caused, or would have caused, a take of a bald eagle."

But the court reheard the case, finding that CBD was due attorneys' fees because it had won on its bald eagle claims in the district court, before the issue became moot. The ruling is now the final word on the issue.

Corrections: A previous version of this story said the Natural Resources Defense Council had filed a friend-of-the-court brief in American Trucking Associations v. City of Los Angeles; it is actually a party in the case. It also misquoted the portion of Perella's email stating that it is "not uncommon" for the Supreme Court to seek the solicitor general's views on a case.

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