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Home  Community Voices Clearing The Air—Sort Of
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Clearing The Air—Sort Of |
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Written by David Pettit
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Monday, 11 May 2009 |
On Monday, April 27, 2009, United States District Court Judge Christina Snyder issued a 36-page tentative ruling in the American Trucking Association’s request for an injunction against the clean trucks concession plans of the Ports of Los Angeles and Long Beach. Despite reporting in the Press-Telegram and Daily Breeze to the contrary, “tentative” means just what is says. There is no binding order from Judge Snyder as of this writing. A final decision on ATA’s injunction request is expected this week.
A brief note on context: ATA filed suit last summer seeking to have the Ports' trucking concession plans thrown out. The concession plans put limits on which trucks can enter the Ports; in return, trucking companies that sign concession agreements are eligible for incentive payments and big subsidies to put new, clean trucks on the road. ATA moved for a preliminary injunction to put the concession plans on ice until the case is tried on the merits. Judge Snyder denied ATA's motion, but the federal appeals court reversed and sent the case back to Judge Snyder's court. ATA renewed its request that both Ports' trucking concession plans be completely stopped until the case is tried.
In the "tentative," Judge Snyder declined ATA's request to enjoin both the Port of L.A. and Port of Long Beach trucking concession plans in toto. Instead, she proposed to enjoin parts of both and let other parts continue to operate, all pending the scheduled December 15, 2009 trial in the case. In short, Judge Snyder proposed to enjoin the Port of LA employee driver provision, the hiring preferences for former drivers, the financial capability requirement, the truck parking requirements and the charging of fees to apply for a concession agreement. She proposed to leave intact the provisions having to do with licensed motor carriers, permitted trucks, driver compliance, truck maintenance, driver credentials, security, and maintenance and presentation of records of vehicle maintenance and safety inspections.
If Judge Snyder’s final ruling is substantially the same as her tentative, the short-term environmental goals of both Ports’ Clean Trucks Plans will remain intact. But what would be left unresolved is how those plans will be sustainable in the future if the current independent owner-operator model persists.
Some people have asked about the effect of U.S. District Court Judge Richard Leon's recent decision denying a request by the Federal Maritime Commission to enjoin the Ports' concession plans. Here is how Judge Leon saw the balance of the equities:
"First, it is important to note that the CTPs represent the judgment of the cities' elected and appointed officials based on multi-year deliberative processes that involved innumerable public meetings and the receipt and review of comments from a wide range of stakeholders.... The Ports' boards of harbor commissioners consequently determined that the Clean Truck Fee exemptions and funding mechanisms provide necessary relief for drayage industry participants in connection with the costs associated with transitioning to newer, cleaner trucks, as required by the rolling truck ban...Without these provisions, the number of clean trucks currently serving the Ports will decrease and significantly fewer clean trucks will enter into service, thus reducing the environmental and health benefits gained to date and expected to be gained the future....
“In addition, POLA's board of harbor commissioners determined that its employee mandate will promote enhanced efficiency in the provision of drayage services at its port, as well as better ensure compliance with its CTP requirements and enhance port security both by providing POLA with enhanced access control and by ensuring LMCs are accountable for their drivers.... Given the immediate impact enjoining these provisions could have on these aspects of the CTPs, the success of which are critical to addressing the significant air pollution in the area, the Court is not persuaded that they are outweighed by the speculative harm to the drayage market alleged by the FMC.”
In a narrow, legalistic sense, the cases are different because the FMC's case is brought under a different federal law than the ATA case. But what is common to both cases is a finding that the plaintiff failed to show that a hypothetical economic injury outweighed the public interest in breathing clean air. Those same issues are in the ATA case and will be examined again by Judge Snyder when the ATA case goes to trial in December.
David Pettit is the Senior Attorney with the Natural Resources Defense Council.
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