The US Court of Appeals for the 9th Circuit on Wednesday handed the American Trucking Associations a small win over the Southern California ports' Clean Truck Program, but refused to block the entire program as the ATA had requested.
This was the second visit before the appeals panel by the ATA regarding the ports of Long Beach and Los Angeles truck programs. Last year, a different three-member 9th Circuit panel blocked portions of the two ports' truck programs, including a controversial component of the Port of Los Angeles' plan that would allow the port to mandate that only per-hour employees operate ports' servicing drayage trucks. Following a lower court's imposition of the earlier injunction, the ATA went back to the appeals court late last year arguing that the lower court injunction did not go far enough.
Wednesday's ruling upheld the previously injuncted portions of the ports truck plan and also found that an additional component of the plan should also be injuncted.
The truck programs began as a single plan in 2007, jointly developed by the Long Beach and Los Angeles ports and seeking to cut diesel truck emissions by up to 80 percent by 2012. The original plan called for the ports to implement progressively more restrictive bans on older model trucks until only 2007 or newer trucks were operating in the two ports. However, the two plans quickly morphed into a trucking re-regulation plan that sought to use an access-licensing scheme to limit which trucking firms could and could not operate in the ports. This access-licensing scheme would require all trucking firms wishing to do business in the port to meet certain ports-defined criteria including financial, labor, security and safety issues.
The ATA, which represent more than 37,000 motor carriers nationwide, filed suit in federal court in July 2008 arguing that the access license system is preempted by federal laws that govern the routes, rates, and services of interstate commerce. The ports argued that they are exempt from federal preemption under a motor vehicle safety clause.
Eventually the two ports developed slightly differing plans, with the Long Beach port adopting a registration-type system focused on turning over the older trucks as quickly as possible and the Los Angeles port sticking to the access license system that among other things required trucking firms to hire only per-hour employees.
Late last year, the Port of Long Beach reached an agreement with the ATA to remove itself from the litigation, while still moving forward with the clean air provisions of their truck plan. Los Angeles port and City Hall officials have repeatedly declared that they will continue to fight the ATA suit and not abandon the employee-mandate.
Wednesday's appeals panel ruling, while not blocking all of the portions of the truck program access licensing scheme the ATA had sought, upheld the earlier injunction against certain portions of the truck plans and also blocked an additional component that required – as part of obtaining a port-issued access license – drayage trucks to carry a placard with port-defined wording. The appeals panel ruled that federal law covering the placement of placards on trucks involved in interstate commerce preempts local regulation.
"Yesterday's ruling maintained the status quo and added an additional item – the placards – to the injunction," said Curtis Whalen of the ATA.
However, the appeals panel on Wednesday did list eight provisions of the Los Angeles port's access license criteria that could remain in place because these items were determined to fall under the federal preemption exception for motor vehicle safety.
These include: requiring that access license recipients be licensed motor carriers in good standing; requiring that access license recipients use only “permitted trucks;” mandating that motor carriers are solely responsible for their drivers and employees; requiring that motor carriers prepare a truck maintenance plan and holding motor carriers responsible for vehicle condition and safety; mandating that motor carriers keep records of driver enrollment in the Transportation Worker Identification Credential (“TWIC”) program; requiring that motor carriers ensure that each truck entering and leaving Port property is equipped with a means of Clean Trucks Program Compliance Verification; ensuring that motor carriers comply with federal, state, municipal, and port security laws; and requiring that motor carriers update and maintain accurate data in the port-operated drayage truck registry, access license registry, and driver registry and allowing Los Angeles port officials to inspect motor carriers’ property and records regarding compliance with the access license agreements. None of these items were previously injuncted and remain in effect at the Los Angeles port.
On Thursday, US District Court Judge Christina Snyder considered motions by both sides for summary judgment in the case. The Los Angeles port argued that the entire case, and injunction, should be thrown out. The ATA argued the opposite. Judge Snyder denied both motions and determined that the matter should be settled in full court. She set April 20 as the start of the trial.
The ATA has argued that the truck plans violate federal interstate commerce laws that preempt any local regulation. The appeals panel, in issuing the first injunction last year, determined that the port is likely to lose on the employee-mandate issue on the grounds of federal preemption. The appeal panel also found that the ATA is likely to prevail on other aspects of the case involving the already injuncted components of the access license scheme.
In the meantime, numerous press outlets reported Wednesday's ruling as a victory for the Los Angeles port, despite the ATA walking away from the court with additional items of the truck plan being injuncted.
Several local media outlets, including the Los Angeles Times went so far as to report that the employee-mandate portion of the injunction had been rescinded by the ruling, an action that the court did not take.
Thursday, February 25, 2010
Background On the ATA Lawsuit Against the SoCal Ports
The Southern California ports' trucking plans began as a single jointly-developed plan in 2007 which sought to cut ports-generated diesel truck emissions by up to 80 percent by 2012.
The original plan called for the ports to implement progressively more restrictive bans on older model trucks until only 2007 or newer trucks were operating in the two ports. However, the two plans quickly morphed into a trucking re-regulation plan that sought to use an access-licensing scheme to limit which trucking firms could and could not operate in the ports. This access-licensing scheme would require all trucking firms wishing to do business in the port to meet certain ports-defined criteria including financial, labor and safety issues.
On June 30, 2008 the American Trucking Associations filed in US District Court, Central Division, for a preliminary injunction blocking implementation of the port’s mandatory access license scheme under the Federal Aviation Administration Authorization, or FAAA, Act of 1994 and the Supremacy Clause of the Constitution. U.S. District court judge Christina Snyder refused to grant the ATA-requested injunction, ruling that while the access license agreements “related to a price, route, or service” of motor carriers which would generally render them preempted under the FAAA Act, she believed that the ATA was unlikely to succeed on the merits because the concession agreements likely fell under the FAAA Act’s motor vehicle safety exception and therefore ATA had not established a proper basis to be granted a preliminary injunction.
The FAAA Act provides that "a State, political subdivision of a State, or political authority of two or more States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of any motor carrier."
The ATA appealed the lower court ruling to the Ninth Circuit, which reversed the lower court ruling, remanded the case back to the lower court, and instructed Judge Snyder that many provisions of the access license agreements were likely preempted by the FAAA Act.
Once the case returned, the lower court followed the Appeals Court’s order and determined that some of the access license agreement provisions were likely preempted while others were not. Those components of the access license scheme that were injuncted by Judge Snyder included: the independent operator phase-out, hiring preferences, financial disclosure requirement, health insurance requirement, compliance with truck routes and parking restrictions, mandatory access license fees, and Clean Truck Tariff program
The ATA again appealed the lower court ruling to the Ninth Circuit, arguing that Judge Snyder, in issuing the limited preliminary injunction (1) erred in concluding several provisions were not preempted by the FAAA Act; and, (2) erred in concluding that Port of Los Angeles has authority to preclude motor carriers from entering the Port for failing to comply with the access license agreements; and (3) abused its discretion by not enjoining enforcement of the access license agreements in their entirety.
On Wednesday, Feb. 24, the Ninth Circuit panel concluded that each item that Judge Snyder blocked should remain injucted and added an additional item should also be covered under the injunction. This portion of the access license agreements called for each truck to carry a placard with a phone number on it. The appeals panel ruled that the federal government reserves the right to place placards on the truck.
On Thursday, Feb. 25, Judge Snyder denied motions from both sides calling for summary judgment and set April 20 as the trial date.
Tuesday, February 23, 2010
Pickens LNG Firm Plans to Expand SoCal Fueling Network
Billionaire T. Boone Pickens' Clean Energy Fuels Corp. announced plans Monday to aggressively develop a network of liquefied natural gas truck fueling stations in Southern California.
The Seal Beach, Calif.-based Clean Energy currently operates two LNG fueling stations located in or near the ports of Long Beach and Los Angeles, serving about 500 LNG drayage vehicles.
The Clean Energy plan calls for the development of additional fueling stations along key truck routes in Southern California including locations in Los Angeles, Commerce, Industry, Fontana, Riverside, Tulare, Barstow, and Otay Mesa/San Diego.
Set to be developed over the next several years, these hub stations will then be linked by additional stations located along the truck routes to form a complete Southwest region network.
The two ports' proposed truck modernization program that eventually morphed into the current Clean Trucks Program originally called for 50 percent of the more than 19,000 trucks servicing the two ports at the time to be replaced by LNG or other alternative fuel vehicles. However, this goal was subsequently dropped during the development of the overall trucking program. In the end, the 500 LNG trucks currently servicing the two ports were subsidizing through various government funding mechanisms.
The push toward LNG in the original ports' truck modernization plan was based on certification data of a single LNG truck engine available at the time showing that no diesel engines at the time were cleaner burning than the LNG engines. However, current diesel engines are now producing less of three of the four major pollutants looked at in certification tests.
As of Monday's public meeting, the Long Beach Board of Harbor Commissioners have moved away from their original "cleaner-burning" argument for LNG to an argument based on the concept of "diversification of energy" and "reducing domestic dependence on foreign oil."
It worth noting that while current LNG trucks and current diesel trucks are both equally clean compared to models just a few years ago, LNG trucks still cost nearly 50 percent more.
Portland, Vancouver USA Port Officials Offer Support to Columbia River Crossing Project
Officials at the Oregon Port of Portland and Washington state port of Vancouver believe that the construction of the Columbia River Crossing Bridge needs to move forward quickly and have set a goal of 2012 for the start of construction.
The Columbia River Crossing is a bridge, transit and highway improvement project for five miles of Interstate 5 from State Route 500 in Vancouver, Washington, to approximately Victory Boulevard in Portland, Oregon. The CRC development team is studying a replacement I-5 bridge over the Columbia River with light rail extending to Clark College.
The leaders of the two ports claim that the CRC, which has raised concerns from local leaders like the mayors of Portland and Vancouver, is needed to help the flow of truck and vehicle traffic on the congested stretch of Interstate 5 freeway between the two cities.
The official website for the CRC project claims, "If no changes are made, congestion will grow from today’s six hour daily traffic jam to 15 hours per day by 2030. This section of I-5 has an accident rate about double that of similar urban highways in the region. Narrow lanes, short on-ramps, and a lack of safety shoulders on the bridge contribute to accidents. Bridge lifts stall all traffic using I-5, add to unsafe driving conditions and increase accident potential."
Following public statements last week from the governors of both Oregon and Washington supporting the CRC, port officials quickly chimed in with their own support.
Vancouver top executive Larry Paulson told Oregon Public Broadcasting this week that ,“We need to plan for the future. I think in terms of the bridge the future is now.” The head of the Portland port, Bill Wyatt, also told OPB, “If we don’t do something about it, nature will. These bridges are really old, they’re seismically unfit, and they’re not serving the needs of our region."
Both agreed with the two governors' statements that the project should be kept to a target of 2012 for the start of construction.
Opponents of the CRC argue that the project will lead to increased sprawl and that current funding mechanisms are inadequate to continue forward at an accelerated pace.
The mayors of Portland and Vancouver, along with a Clark County Commissioner and the head of Metro transit agency officially asked the governors of both states to reexamine the CRC. Since the governors' voicing of support for the CRC, the four have sought to have certain points and impacts fo the project clarified, including the potential for more sprawl in the project region.
Tacoma Port Refuses to Pay "Unfair" EPA Fine
Officials at the Port of Tacoma are refusing to pay a nearly $220,000 negotiated penalty levied by the Environmental Protection Agency over the port's failure to provide documents on the cleanup of the former Kaiser Aluminum & Chemical Corp. smelter site.
The port bought the 97-acre Blair Waterway site from Kaiser back in 2003 with the idea to redevelop the property. Under the federal Resource Conservation and Recovery Act program, which is administered by the state Department of Ecology, the port was required to prove that it could pay to clean up the site. Port officials say that the EPA claims that the port repeatedly failed to provide the required documentation by the yearly deadline. The EPA does not comment on pending violations.
Between 2003 and 2008, the port spent millions refurbishing the site in preparation for development of a shipping terminal. In 2008, though, the EPA received directions to begin closely monitoring Resource Conservation and Recovery Act program cases. This led to a federal audit of the state Department of Ecology's RCRA program, including the Kaiser property clean up, and the discovery of the port's missed paperwork deadlines.
After more than a year of negotiations, the port and EPA reportedly failed to come to terms on settling the potential fines from the paperwork violations.
The EPA reportedly wants the port to pay $231,600 in fines, an offer which port officials have refused. While port officials have not specified what they consider fair, they believe the EPA's suggested amount is much too high.
“A small reduction is not what we are after. We are after being treated fairly,” Sue Mauermann, the port’s director of environmental programs, told the Tacoma News Tribune.
EPA officials argue that non-compliance with the paperwork requirements means that more work falls on the shoulders of federal employees to keep the port in compliance--work that adds up in total costs.
With both sides now at loggerheads over the issue, the next step will likely come in the form of an official fine against the port from the EPA. Ironically, because the port missed some of the paperwork deadlines by up to four weeks, and the fines are based on a $37,500 per day of violation levy, the EPA could wind up assessing an official fine that is much greater than the negotiated amount. If the port continues to fight the fines, the whole affair could wind up in federal court, though instances of such cases going this far are rare.
Seattle Box Volumes Up in January, Tacoma Hits Three-Year Low
Cargo volumes at the major Puget Sound ports presented a mixed bag during January, with Seattle posting impressive total box numbers compared to the same period last year while nearby Tacoma recorded it's 19th consecutive month of total box volume declines and the lowest single month total box volumes in more than three years.
The Port of Seattle ended January with a total of 154,431 TEUs handled, a 21.9 percent increase over January 2009. Total loaded inbound boxes were reported up 36 percent to 67,418 TEUs while total loaded outbound boxes ended the month up a massive 63 percent at 37,207 TEUs, both compared to the year ago period. January was the sixth straight month of total box volume increases for the port.
The Port of Tacoma reported total box volumes for January of 92,900 TEUs, down 15 percent over January 2009. Tacoma has not reported a total monthly box volume increase since June of 2008 and January was the lowest single month TEU total since prior to January 2007–the oldest records Tacoma posts. In January, Tacoma also handled a total of 33,257 loaded inbound TEUs, a 19.7 percent drop, and a total of 21,411 loaded outbound TEUs, a 4.5 percent decrease over the same period last year.
Europe Contemplates New Research Icebreaker
A consortium composed of fifteen research organizations from ten European countries is continuing to examine the costs of building what would be "the most advanced icebreaker in the world," the multi-purpose Aurora Borealis. The project is being coordinated by the European Polar Board of the European Science Foundation with design input by such firms as Wartsila Ship Design Germany and Aker Arctic Technology of Finland.
According to its supporters, Aurora Borealis will be a unique vessel in that it will function as a heavy icebreaker, a scientific drilling platform and a multi-purpose research ship. The ship, to measure 199.8 meters by 49.0 meters, will have a displacement of approximately 65,000 tons on a maximum draft of 13 meters. Propulsion will be provided by a diesel-electric system using eight diesel generator sets with a maximum output of 94 MW driving three fixed-pitch propellers on shafts and six fully-retractable transverse thrusters. This will give a maximum speed in open water of 15.5 knots, a loaded service speed of 12 knots and the capability to break ice more than 2.5 meters thick at a speed of 2 to 3 knots. Accommodation will be provided for up to 120 scientific personnel and crew in 80 single and 20 double cabins.
The new research ship will have a full-functional capability down to -50¼C and an operational temperature range of between +45¼C and -30 ¼C with a maximum operational endurance of 90 days.
In an installation unique among polar icebreakers, Aurora Borealis will be equipped with a drilling rig that will enable researchers to drill more than 1,000 meters into the sea floor while the ship floats between 100 meters and 5,000 meters above the drilling site. To allow this, the ship will be fitted with a dynamic positioning system capable of operating in ice. Although such a system is considered a novelty at the present it will be mandatory for the vessel's research tasks. The system will allow scientific deep-sea drilling in pack ice without the need of support from other icebreakers.
Extensive model tests in the ice tanks of the Hamburg Ship Model Basin have proven that Aurora Borealis will be able to dynamically position in an ice cover of two or more meters thickness.
Another unique feature of the vessel will be the incorporation of two seven-by-seven-meter moon pools which will enable scientists to deploy their equipment into the ocean without being subject to wind, waves and ice. The ship's aft moon pool will be mainly dedicated to drilling operations while the forward moon pool will be reserved for most other scientific work. This will allow deployment of sensitive and expensive equipment, such as remotely operated or autonomous underwater vehicles, within a closed sea ice cover.
The preparatory phase of the ship's development is to be completed by 2012 when actual construction is expected to begin. This will be followed by sea trials and testing procedures, allowing the new European polar research vessel to become operational in 2014 with an expected lifespan of 35 to 40 years.
The ship's construction is included in the priority list of the European Commission's "European Strategy Forum on Research Infrastructures" but the vessel's cost, estimated at 355 million Euros when the project was first launched in 2006, has since mushroomed to more than 650 million Euros.
