Friday, July 22, 2011

Judge Rules Long Beach Port Must Review Environmental Impacts of ATA Settlement

A federal court judge has ruled that a 2009 lawsuit settlement between the Port of Long Beach and the American Trucking Associations (ATA) regarding the port's clean truck program should have gone through a preliminary environmental review process.

The National Resources Defense Council (NRDC) and the Sierra Club filed the suit against the port in December 2009, alleging that Long Beach city officials – including the port's governing board – violated the California Environmental Quality Act (CEQA) by not properly reviewing the potential environmental impacts of the agreement before approving it.

The NRDC argued that the Long Beach settlement weakened the original scope of the truck program, and in doing so, created negative impacts to the environment.

On June 15, federal circuit court Judge Christina Snyder ruled that the agreement could have possible environmental impacts and that Long Beach should conduct an "initial study" under CEQA guidelines.

Most large projects, a categorization Judge Snyder said the truck plan falls under, typically require a review of potential environmental impacts. The first step in this is a CEQA – essentially a checklist – in which various potential impacts are examined. If the possible impacts pass a certain threshold, further environmental documentation and review, such as an environmental impact report, must be conducted. If the project falls below the CEQA threshold, no further review is required.

“Nothing about the port’s agreement with the ATA was made with the public’s health in mind,” director of NRDC’s Southern California Clean Air Program David Pettit said. “The agreement was a big giveaway to industry in hopes that ATA would drop their litigation against the port, and when they did, so did the port’s commitment to a sustainable clean truck program and cleaner air for port residents.”

The NRDC and Sierra Club suit grew out of a larger ATA suit filed in mid-2008 against the ports and cities of Long Beach and Los Angeles over portions of the two ports' jointly-developed clean truck program.

The Long Beach/ATA settlement, which was originally approved by Long Beach officials in October, 2009, and subsequently reviewed and approved by Judge Snyder in 2009, officially removed Long Beach from the larger ATA suit.

The larger ATA lawsuit, now involving just Los Angeles, is awaiting a ruling from the Ninth Circuit Court of Appeals.

Under the terms of the 2009 settlement, in exchange for the ATA dropping the lawsuit against Long Beach, port officials in Long Beach agreed to modify their version of the truck plan by replacing a requirement for port-servicing drivers to obtain a concession agreement with a requirement calling for drivers to participate in a registration agreement.

Under the original truck program developed by the two ports, trucking firms had to sign a concession agreement to be allowed to service the ports' facilities. The concession agreement contained numerous criteria that the ATA took exception to, including a mandate that all port servicing truck drivers work as per-hour employees of trucking firms, instead of as per-load independent owner-operators.

The industry has pointed out that independent operators – which make up more than 80 percent of the two ports drivers – are barred from unionizing and the promotion of the truck program employee-mandate is an effort by the International Brotherhood of Teamsters to organize the port drivers.

Under the Long Beach registration agreement, trucking firms wishing to service the Port of Long Beach must agree to register with the port and comply with all environmental, safety and security requirements. In exchange, the trucking firms are provided with a transponder that permits access to port facilities.

"With this settlement, the Port of Long Beach and the ATA have agreed to move forward, together, on a Clean Trucks Program that works to safeguard the environment while contributing to economic growth and jobs," Port of Long Beach Harbor Commission President Nick Sramek said at the time.

"The change will streamline our program. At the same time, under the new registration system, the Port of Long Beach will have the tools to strictly monitor and enforce its Clean Trucks Program and the program’s truck emission reductions. It will also be positioned to enforce fully all of its security and safety related regulations."

Due to the larger ATA lawsuit the same portions of the original two-port truck program that Long Beach agreed to remove from its version have been enjoined by court order on the Los Angeles side.

Since the now-differing versions of the truck program were implemented by both ports in 2008, port-servicing truck emissions have been reduced by more nearly 90 percent and nearly 100 percent of the ports-servicing trucks have been replaced by 2007 or newer model year vehicles.

It remains unclear what a CEQA review conducted well after the fact would accomplish given the overwhelming success of the truck programs in reducing port pollution.
"At this stage, legal analysis is that this is not an earth shattering opinion," ATA's Curtis Whalen said. "It concerns the processes required by CEQA and the fact that the port did not do an [initial review]. The court found only that there was a “possibility” that the settlement would have a substantial environmental impact and that the port conduct an initial study."

The NRDC and Sierra Club both argue that a component of the Los Angeles concession agreement model – a requirement that cleaner trucks servicing the ports be maintained in optimum working condition – is impossible given the low pay of port drayage drivers. As the new trucks age and are not maintained, the groups argue, pollution will increase.

The trucking industry, which has invested more than $650 million in the drayage fleet upgrades since the 2008 implementation of the truck programs, has countered that it is not in their best interest to allow their sizable investment to go unmaintained.

In addition, trucks servicing the ports are required to meet all state and federal air quality and safety requirements to operate in the port.