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We're All At Risk From Air Toxics

2009-06-26T18:48:09Z

The United States Environmental Protection Agency (EPA) on Wednesday released some very disturbing results of its analysis of air toxics data from 2002. EPA found that every U.S. resident has a higher cancer risk of greater than 10 in a million from exposure to air toxics. Every U.S. resident. What does a 10 in a million increased cancer risk mean? The Ports of Los Angeles and Long Beach have committed to not going forward with new projects if the projected increase in cancer risk from a project is 10 in a million or greater.

The EPA study also found that two million Americans have an increased cancer risk of more than 100 in a million from air toxics - a level of risk ten times higher than what is allowed at our country's busiest ports. The study itself is difficult to parse through, but here's a good summary.

There are some methodological questions about the study that I'm not clear about. For example, the potential cancer risk from diesel PM exhaust emissions is not addressed, even though, as EPA itself says, "It is particularly significant that the assessment did not quantify cancer risk from diesel PM, although EPA has concluded that the general population is exposed to levels close to or overlapping with apparent levels that have been linked to increase cancer risk in epidemiology studies." What that means to me is that EPA knows that the results from this study underestimate the actual cancer risk from air pollutants.

In fact, the cancer risk for diesel emissions has been addressed for the LA Ports area in the South Coast Air Quality Management District's MATES III study, which found elevated cancer risks of over 3,600 in a million near the ports. NRDC's scientists believe that diesel particulate matter is responsible for the vast majority of cancer risk from air toxics, and that noncancer impacts are tenfold greater for diesel.

The takeaway message from the EPA study is this: we have a huge public health problem in the U.S. as a result of polluted air. What is so frustrating to my NRDC Air Team colleagues and me is that most of our air pollution can be eliminated using current technology - for a price. So far, we as a society have not been willing to pay that price.

Live Wire In Long Beach

2009-06-18T19:29:55Z

The Port of Long Beach recently announced an important first: A BP oil tanker, the Alaskan Navigator, tied up at Pier T in Long Beach and shut off its diesel auxiliary engines, using alternative marine power ("cold ironing") to run the ship, including the energy-intensive oil pumps. This tanker was specially built to rely on electric power while at dock. We're not talking about a skinny extension cord here - the power cables are built to handle 6,600 volts or more. Cold ironing this ship is expected to save 10,000 gallons of diesel fuel per day. The net emission benefits will depend in part on the source of the electricity, but there is no question that the air quality near the port will improve if a ship plugs into shoreside power, relative to what it would be if the ship ran its engines for three or four days.

This is a welcome development. NRDC has been pushing the Ports of Long Beach and Los Angeles to move to cold ironing since the time of the China Shipping litigation in 2002.

But we can't stop there. A substantial percentage of air pollution from ships is emitted while the ships are in transit along the California coast. To remedy this, the California Air Resources Board has enacted a regulation that would regulate the sulfur content of marine fuel within 24 nautical miles of the California costs. But, the shipping industry has challenged this regulation in federal court. The Long Beach and Los Angeles ports enacted their own voluntary, fully subsidized clean marine fuel rule (set to expire next month), but enrollment by the shipping industry has been surprisingly low.

There may be national regulation of marine fuel in 2015, but if the shipping industry wins its lawsuit and the Ports' voluntary program expires, all Californians who live near the coast - and that is most of us - will be exposed to high levels of diesel particulate and other toxic air pollution from ships for at least the next six years. That should send an angry shock through all of us.

Nixon Said What?

2009-06-03T22:14:42Z

In his 1970 State of the Union address, Richard Nixon said: "Clean air, clean water, open spaces - these should once again be the birthright of every American." My friend Erika Zucker was the first to identify this quote when I put it up on Facebook. And although Nixon is reported to have said that the environmental movement is "crap" for "clowns," he signed the Clean Water Act, the Clean Air Act and NEPA, and he signed the legislation creating the EPA.

So, Dick, how is that working out? Today's New York Times reports that the risk of ischemic heart disease from the inhalation of soot particles is twice what had been previously observed. The Times article has this to say about the L.A. area ports where NRDC focuses a lot of attention: "Comparing exposure within the New York and the Los Angeles metropolitan areas, the study found that the risks were evenly distributed in the vicinity of New York while some areas around Los Angeles, including neighborhoods near the Ports of Los Angeles and Long Beach, had elevated health risks."

This is totally consistent with the findings of the South Coast Air Quality Management District's MATES III analysis, which found the highest cancer risk from inhalation of toxic substances to be in the areas near the ports of Los Angeles and Long Beach. The California Air Resources Board ("CARB") has also recognized the toll of illness and death caused by diesel particulates from the goods movement industry.

Solutions for these problems are at hand, but industry is stonewalling. The Los Angeles and Long Beach ports' trucking concession plans are tied up in federal court in a lawsuit filed by the trucking industry. CARB's second attempt to force the shipping industry to use cleaner marine fuel is also under attack in court by the shipping industry. NRDC is active in both lawsuits, trying to protect public health and air quality.

Ultimately, Nixon resigned in disgrace. In the famous interview with David Frost, Nixon said that "if the President does it, that means that it is not illegal." Not so, Tricky Dick. Neither you nor powerful industries are above the law - including the Clean Air Act that you signed. NRDC is working to make sure that Nixon's promise from 38 years ago comes true.

Smog In A Can

2009-05-05T16:15:41Z

Last weekend, the USC Annenberg Institute for Justice and Journalism held a series of seminars for journalists selected from around the country. Barry Wallerstein, the Executive Officer of the South Coast Air Quality Management District, Jane Williams, the Executive Director of California Communities Against Toxics, John Froines, from the UCLA Particle Center, and I spoke at a Saturday session. We probably scared them out of breathing.

Barry gave an overview of the air pollution issues in the South Coast basin in California, a four-county region of over 10,000 square miles where 16.5 million people live, including me. We have millions of cars, hundreds of thousands of diesel trucks, and the biggest ports in the country. We also have the worst air quality in the country when you look at ozone and fine particulates (also called PM2.5, referring to their size of 2.5 microns or smaller). In fact, looking at eight-hour ozone exposures, we have over 24% of the population-weighted exposures above the federal standards. And for annual average PM2.5, we have - get this - over 51% of the population-weighted exposures above the federal standards. This muck, over 80 percent of which comes from mobile sources such as cars and trucks, causes over 5,000 premature deaths per year in the South Coast basin - more deaths than are caused each year by homicide in California.

Jane, who has devoted her career to the cause of environmental justice, talked about the Mothers of East L.A. march in 1989 against a local incinerator project (NRDC represented the Mothers and still does) as one of the foundational events of the environmental justice movement. Starting with hazardous waste issues, the "EJ" movement, with a history of female leadership, has expanded its scope of work to include air and water pollution and global warming issues. EJ advocates such as Jane have a bigger presence in the California legislature than in any other state.

John talked about one of the emerging issues in the control of air pollution: ultrafine particles, those 0.1 micron or smaller - the size of viruses. These particles, most of which come from mobile sources, carry metals and organic chemicals and can penetrate into the mitochondria and nuclei in our cells. They have been linked to heart disease and inflammation of the brain. John said that, when you drive up the I-710 from the ports to downtown Los Angeles, you take in 1.5 million ultrafine particles with every breath. How many come back out?

I talked about environmental justice related litigation that NRDC has participated in, from the early days of the Mothers of East L.A. march to today. In fact, much of our diesel-related work has environmental justice implications because the people in Southern California who are suffering the most from diesel pollution are those who live near our ports and port-serving freeways - a population that is largely poor and minority. And we still see situations where a polluting facility that could never be approved in a wealthy, white community is proposed for a poor, minority community - like the Vernon powerplant project.

As part of Barry's talk, he showed the attendees a slide of a joke product from the 50's: L.A. smog in a can. Well, it's out of the can, and all of us here in Southern California know it.

Not My Department

2009-04-29T17:44:48Z

The Pacific Merchant Shipping Association ("PMSA") has filed another lawsuit against the California Air Resources Board ("CARB") over CARB's regulation of dirty, polluting fuel for oceangoing vessels.

Oceangoing vessels burn the dirtiest diesel fuel in existence, called bunker fuel or residual oil. This fuel is highly contaminated with sulfur and other toxic materials and is a solid, asphalt-like substance at room temperature. It must be heated to flow into ships' engines. Under the very loose regulations from the International Maritime Organization (IMO), this fuel can contain up to 45,000 parts per million sulfur. By contrast, diesel trucks in California burn fuel with a maximum of 15 parts per million sulfur. The sulfur content of diesel fuel is the most important determinant of how much diesel particulate matter will be emitted when the fuel is burned.

Unless a ship at dock is hooked up to shoreside electrical power ("cold ironing") - and few are - the huge cargo ships that carry freight to the U.S. continue to burn diesel fuel while running their auxiliary engines 24/7 while at dock. In the time it takes to unload and load a large container ship, that ship can emit as much pollution as 1 million cars. Diesel particulate pollution tends to fall to earth relatively near its source. In Southern California, as the South Coast Air Quality Management District and others have found, the health risks from this pollution are greatest near the Los Angeles and Long Beach Ports.

In 2006, CARB adopted regulations that limited the sulfur content of fuel used in the auxiliary engines of oceangoing vessels within 24 nautical miles of the California coast. The regulations were designed to reduce the public health impacts of diesel particulate pollution that blows inland from ships off the coast and at dock. PMSA sued and won a ruling blocking these regulations on the basis that California did not get a waiver from the U.S. Environmental Protection Agency before enacting them.

CARB went back to the drawing board and revised the regulations to eliminate the need for an EPA waiver and to expand their scope to vessels' main engines as well as auxiliary engines. The new rules require most ships to use relatively clean marine fuel starting this July, and marine fuel having 1,000 ppm sulfur or less by January 1, 2012. CARB estimates that this rule will prevent roughly 3,500 premature deaths by 2015, with a total valuation of $33 billion.

Whether PMSA wins this latest lawsuit or not, an international treaty to which the U.S. is a signatory will probably require 1,000 ppm sulfur fuel to be used by ships within 220 miles off the entire coastline of the U.S. beginning in 2015. My colleague Rich Kassel blogged about this here. So why the rush to the courthouse?

Money. Low-sulfur marine fuel is more expensive than the nasty stuff that ships use now. So if PMSA wins its second lawsuit, its members can avoid potential price increases of pennies per pound of cargo. And the thousands of people who will die prematurely because of this? As the great Tom Lehrer has Wehrner Von Braun say in the eponymous song: "That's not my department."

L.A. Port Trucking Case Update

2009-04-28T02:12:21Z

Here is a quick report on what happened today in the American Trucking Association vs. City of Los Angeles case. Judge Snyder issued a 36 page tentative ruling this morning. The "tentative" is to let the lawyers know how she is thinking on the issues. My last post explaining the issues before the court is here.

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. 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.

Judge Snyder listed to argument from all parties and said she would try to get us a final decision this week. Stay tuned.

A Preview Of The Issues In The L.A. Ports Trucking Case

2009-04-24T17:56:27Z

Next Monday, April 27, 2009, U.S. District Court Judge Christina Snyder will rule on the American Trucking Association's ("ATA") request for a preliminary injunction in ATA's lawsuit against the Ports of Los Angeles and Long Beach. I'm writing to sketch out the issues that will be on the table.

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. I've blogged about these events here, here and here.

ATA has now renewed its request that both Ports' trucking concession plans be stopped until the case is tried, likely in December, 2009. ATA has also picked apart the concession plans and challenged their provisions one by one.

Judge Snyder has several options on Monday. She can deny ATA's motion on the basis that ATA has not shown irreparable injury and that the balance of hardships and the public interest favors the Ports. She can grant ATA's motion in its entirety and enjoin all of both Ports' concession plans. She can enjoin one plan entirely and enjoin pieces of the other. Or she can enjoin pieces of each plan. Any injunction she issues Monday will only be good until the case is tried.

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. 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 will be in the balance on Monday.

There is a lot going on next Monday, and a lot at stake. I'll post again as soon as we have a ruling from Judge Snyder.

Fig Leaf

2009-04-23T20:02:13Z

The Los Angeles County Board of Supervisors voted last Tuesday to oppose a "get out of jail free" bill that the South Coast Air Quality Management District (the "District") is flogging in Sacramento. The District got caught breaking the law and is now trying to scare the state legislators into changing the law in its favor - in a way that will hurt, not help, cleaning up the air in the dirtiest air basin in the country.

Here's the context. Last summer, NRDC and other public interest groups won a lawsuit over the District's failure to conduct a proper (or any) environmental review when it adopted a regulation that would have added many tons of pollution to the South Coast basin. I've blogged about this before here.

The lawsuit put a halt to the District's plan to sell scarce pollution credits to big businesses such as power generators and refineries, costing the District over $400 million. One reason this plan was so pernicious is that the District was raiding its own "bank account" of credits for its own benefit, leaving fewer and fewer credits for the essential public services and small businesses to which the District had promised credits at no cost.

The District is now shamelessly exploiting the problem that it created by trying to scare the legislature into enacting a bill that the District wrote and that would eliminate the basis for the lawsuit that the District lost. The District and its lobbyists are telling legislators that raw sewage will flow in the streets (I'm not making this up), police stations and hospitals cannot be built, older polluting facilities cannot be upgraded etc. because of the lawsuit. In short, life as we know it will come to an end. All this because the District does not want to disclose the environmental ramifications of its actions, analyze greener alternatives, and reduce any unavoidable impacts - as California law requires. In fact, if the District and its expensive consultants just create a decent environmental review - which we asked them to do in 2006 - the lawsuit will be over. This could happen this year.

But there's more. Instead of just pretending to help small businesses that can't get emission credits - in part because the District sucked up the credits to sell to big business -- the District tacked some text onto its proposed legislation that could put it back into the business of selling emission credits to big businesses. Yes, that's right - the District wants to recreate the very system that led to the problem that it claims to want to fix: more credits for big businesses and fewer credits for small businesses and essential public services. This is Robin Hood in reverse.

At last Tuesday's Board of Supervisors hearing, Supervisor Gloria Molina introduced a motion supporting legislation that would preserve the access of small businesses and essential public services to free emission credits, but opposing allowing the District to once again raid its "bank" of credits for cash. I spoke in support of her motion. Supervisor Molina, Supervisor Zev Yaroslavsky and Supervisor Mark Ridley-Thomas, each of whom eventually voted for Supervisor Molina's motion, listened patiently as the District, its lobbyists, and the usual industry reps spoke in opposition, trying to play up the suffering of small business while running away from the plain language in the District's own proposed legislation about selling credits to power companies. Finally, Supervisor Yaroslovsky had heard enough, and told the District speakers to their face that their doom and gloom about small business was just a "fig leaf" intended to cover up the District's real intent - to sell credits to polluters.

He was right. Supervisor Molina's motion passed and we are making sure that every legislator in Sacramento knows about it. We are working hard to solve the problem of getting free emission credits where they need to go. But we will continue to oppose any plan that will allow the District to profit from making air quality worse.

A Clean Win For Clean Air

2009-04-16T18:59:40Z

Yesterday, United States District Judge Richard Leon denied the application of the Federal Maritime Commission ("FMC") for an injunction to put the Clean Trucks Plans of the Ports of Los Angeles and Long Beach on ice.

I've blogged about the ill-advised FMC lawsuit here and my colleague Adrian Martinez has here. In short, the FMC argued that the Clean Trucks Plans and their associated concession agreements were anti-competitive and violated federal shipping laws (why the FMC, which was set up to regulate ocean shipping, thinks it has jurisdiction over trucks is another story). The FMC asked Judge Leon for a preliminary injunction that would have stopped the ports' Clean Trucks Plans until the case went to trial.

Judge Leon, like Judge Snyder in the American Trucking Association case against our local ports, found that the public interest in clean air and efficient movement of cargo outweighed the evidence of economic harm that was presented to the court. Here is what he wrote - it's long, but worth reading:

"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 addition, for many of the same reasons, the public interest also weighs in the defendants' favor. This case presents the unique situation wherein both parties are acting to protect the public interest. On the one hand, the defendants are implementing ambitious, multi-faceted programs to reduce high levels of air pollution while also striving to improve the Ports' safety and security and to enable future development. On the other, the FMC has a statutory responsibility to take prospective action to protect the public from anticompetitive agreements that it believes are likely to unreasonably raise rates and decrease services. See S. Rep. No. 105-61, at 14 (1997), available at 1997 WL 441767, at *14. Ultimately, the dispute at this juncture boils down to a request by the FMC that this Court bless its chosen policy determination over that of the defendants prior to a full briefing on the merits. Given the protracted and public deliberative process that led to the development of the CTPs and the responsibility the defendants have for improving the area's public health and managing the Ports' efficient operations, the Court finds that the public interest, at this point, favors denying the FMC's motion for a preliminary injunction."

Judge Leon's language goes directly to two issues that Judge Snyder will address at the upcoming hearing on ATA's request for an injunction against the L.A. ports' concession plans: the balance of hardships among the parties and the public interest. It remains to be seen what effect Judge Leon's decision will have on the ATA lawsuit here in Los Angeles. But what is clear is that a judge sitting 2,500 miles away from the LA ports understands the importance of clean air to the people who live right here.

Fifty Million To One

2009-04-11T23:35:48Z

A recent article in the Guardian reports that a large container ship that operates 280 days per year emits 50 million times as much SOx pollution as a car that is driven 15,000 kilometers or 9,300 miles per year. Yes, that's right: 50,000,000 times as much. Doing the math, the article goes on to say that just 15 of the biggest container ships "may now emit as much pollution as all the world's 760 [million] cars." And there are roughly 90,000 ocean-going cargo ships.

SOx, which is shorthand for the family of sulfur oxide gases, is a combustion byproduct of diesel fuel (among other sources). Sulfur dioxide (SO2) is in the SOx family and is a precursor of particulate matter in the atmosphere. According to the U.S. Environmental Protection Agency, SO2 by itself can cause respiratory illness and aggravate heart disease. Inhalation of sulfate particles can cause increased respiratory symptoms and disease, difficulty in breathing, and premature death. SO2 can also contribute to acid rain and, says EPA, "accelerates the decay of building materials and paints, including irreplaceable monuments, statues, and sculptures that are part of our nation's cultural heritage." Nasty stuff.

As though that were not bad enough, the BBC reported this week on a study in the Journal of Epidemiology and Community Health that found that inhalation of fine particulate matter can lead to low birth weight babies. That study looked at emissions of particulates from highways, but the particulate matter that affected the unborn children can also come from ship emissions. Your lungs don't know the difference.

And while we're on the topic of the BBC report, it's interesting that the data used there came from EPA monitoring stations that are, in general, not near the freeways where the biggest problems are. I blogged about this issue here, and our press release on the lawsuit that NRDC filed to fix this problem is here. Well, a new study has just come out in the journal Atmospheric Environment (you have to go to Science Direct to buy it) that shows just how important it is to have air pollution monitors near freeways, and not a dozen kilometers or more away as EPA now permits. The authors, who did field work near the L.A. ports, conclude that: "[P]persons living or working near and downwind of busy roadways can have several-fold higher exposures to diesel vehicle-related pollution than would be predicted by ambient measurements in non-impacted locations."

These problems are fixable with technology that exists today. Low-sulfur fuel for ships is available now that is 35 times cleaner than the dirty (but cheaper) bunker fuel that ships typically burn. If the EPA gets its way, use of that fuel will be mandatory within 200 miles of the U.S. coast by 2015; see my colleague Rich Kassel's post on this here. In fact, this cleaner fuel is currently being offered free to ships docking at the L.A. ports, see my blog post on that program. Moving pollution monitors near freeways is a no-brainer, except that EPA doesn't want to do it. Reducing diesel pollution on our freeways is tougher, but there are trucks available right now that are 60 times cleaner than pre-1989 diesels. Impressive work is going on right now in Los Angeles on a fleet of electric port drayage trucks. And although the Union Pacific and BNSF railroads will tell you that electric powered locomotives are infeasible to carry freight, they exist in Europe, Australia and China -- and indeed, the Alameda Corridor that links the L.A. ports to a huge local railyard was built with the idea that it could, one day, be electrified.

Leverage of 50 million to 1 can work both ways. Cleaning up just one big container ship can give us tremendous bang for the buck. Putting cleaner diesels and electric trucks and trains on the streets and rails near our busy ports is also hugely cost-effective in terms of public health. Let's get this done.

Driving Towards Anarchy, or Be Careful What You Ask The Court For.

2009-04-09T19:12:58Z

After the Ninth Circuit's recent decision in the lawsuit brought by the American Trucking Association ("ATA") against the Ports of Los Angeles and Long Beach, District Court Judge Snyder asked the parties to file additional briefs for an April 27, 2009 hearing in her court on what to do next. ATA has taken a position that may lead to anarchy and disruption of cargo movement at the ports or, if not that, a system where its poorer members will be driven out of business.

The ATA has unequivocally asked Judge Snyder to enjoin both Ports' trucking concession plans. As I've discussed before, this will kill the Ports' clean trucks plan because, without the funding mechanism provided by the concession plans, there is no way to replace in time the 7,500 pre-1994 trucks that will be banned by the Ports and by the California Air Resources Board on January 1, 2010.

7,500 trucks is just short of half the fleet that serves the Ports, which collectively are the busiest port in the U.S. If those trucks disappear and are not replaced, how is the cargo that they now carry going to be moved? Does ATA not remember what happened to the economy during the 2002 lockout at the Los Angeles and Long Beach ports?

But wait, there's more. If new trucks do show up at the Ports, who is likely to own them? Not the thousands of low-paid owner-operators who currently haul containers at the Ports; they were relying on Port subsidies and incentives to fund the otherwise-unavailable $150,000 clean trucks, and those subsidies and incentives will go away if ATA gets what it is asking for. Instead, it will be the biggest and best capitalized large trucking companies, who don't need subsidies and who will drive the "Mom and Pop" operators out of business.

According to the ATA's website, one of its missions is: "to serve and represent the interests of the trucking industry with one united voice." It's unclear to me how the word "united" fits where ATA takes a position that favors the wealthiest few of its members over the masses of low-profit licensed motor carriers. We may soon see how united ATA is if if Judge Snyder gives ATA what it wants.

ATA Needs to Get The Facts Straight About Clean Trucks

2009-03-27T00:36:29Z

Yesterday, industry lobbyists from the American Trucking Association ("ATA") posted a piece on ATA's web site asserting that NRDC, the port of Los Angeles and the Mayor of Los Angeles have not been truthful in talking about the potential consequences of last week's Ninth Circuit ruling on the Los Angeles and Long Beach ports' clean trucks concession plans. Not surprisingly, the narrative from the ATA and its staff of trucking industry advocates is not complete. So, as Paul Harvey used to say, I will provide you the Rest of the Story. In particular, ATA said:

"Last week, the NRDC claimed the Court of Appeals decision "places in jeopardy the clean air goals at the ports, as well as every port infrastructure expansion project that relies on clean trucks." Those claims aren't supported by the facts. Los Angeles Mayor Antonio Villaraigosa and Port of Los Angeles Executive Director Geraldine Knatz have made similar incorrect claims."

ATA is fighting for the right of trucking companies to do business at the ports no matter how dirty or unsafe they are. Its lawsuit stands in the way of cleaning up some of the filthiest air in the nation. Industry's reluctance to do its part in cleaning the air at the ports is a long tale, but we can focus in on a few critical facts that are absent from the ATA's spin.

From the public health perspective, the Southern California ports are the single largest source of cancer risk from air toxics in the area. The transport of freight in California leads to 3,700 premature deaths per year. Trucking is a major source of this pollution, and it is undeniable that these dirty diesel vehicles that travel along the freeways, on harbor area streets and next to schools are leading to significant respiratory illnesses and worse.
From the economic development aspect, Mayors Foster and Villaraigosa have both said repeatedly that their ports cannot expand unless the port trucking system is cleaned up. And they are right. A delay in expansion projects could also impair commerce and cost the ports billions of dollars in revenue during this tough economic period. The Clean Trucks Programs, including the concession plans, are needed to avoid these bleak consequences.
ATA's own court papers and filings in other venues contradict its position that its actions are innocent and will not impede clean air objectives -- because they ignore the fact that killing the port concession agreements will kill the funding for replacement of 17,000 dirty port trucks.
ATA's complaint alleges that "Defendants' use of contractual Concession Plans to regulate access to the Port of Los Angeles by motor carriers engaged in port drayage, violates the FAAA Act." The complaint also asks for an injunction to stop the entire concession program. Counsel for the ATA confirmed today that ATA will be asking District Court Judge Snyder for an injunction against both local ports' concession plans - in total. ATA wants the concession plans dead, although they are willing to take the ports' container fee money in return for nothing.
Back in March of 2008, Richard O Levine on behalf of ATA's Curtis Whalen submitted a request to the Federal Maritime Commission asking the agency to halt the ports and the West Coast Marine Terminals Operators from "collect[ing] and exchanging information, engage[ing] in discussions, and reach[ing] agreement" with regard to several environmental, security, and infrastructure programs. This effort was part of the reason that critical programs such as the collection of the ports' clean truck fee were delayed, and millions of dollars that could have gone to ATA's members to clean up their trucks was never collected. The ATA has advocated for the FMC to make a sweeping attack on the clean trucks programs at both ports, and the FMC has been a willing partner.

Here's how all this comes together. Both ports require that, to get incentives or subsidies paid for by container fees, a driver or trucking company must sign a concession agreement. So if ATA knocks out the concession agreements, container fees stop flowing to trucking companies and the truck fleet will stay dirty. It's just too expensive for the truck drivers to buy new, $150,000 trucks on their own.

The ports need to replace approximately 7,000 old, dirty trucks by the end of the year under a phase-out program that ATA purports not to challenge. ATA knows well that this phase-out will not happen if there are no container fees to pay for it. So what's happening is that ATA is using the Ninth Circuit decision to play "chicken" with the ports, betting that the ports will back down and give container fee money away to anyone without requiring anything in return. Does this remind you of AIG's bailout strategy: take public money but disclaim any responsibility to the taxpayers?

So, we are left with an epic battle. On one end are the harbor area residents that have for so many years paid with their health for the freight industry and its deadly pollution, and on the other end, a trucking industry that does not want to be held accountable for being a responsible business partner with the ports. NRDC and our clients intend to make this clear in the upcoming hearings before Judge Snyder.

EPA Gives Port Pollution Failing Grade

2009-03-26T21:36:51Z

The EPA's Office of the Inspector General (IG) recently issued an 80-page report calling out EPA for its failure to protect Americans from pollution from oceangoing ships. Margot Roosevelt of the L.A. Times has a description of the report here.

As the IG report points out, EPA has the legal authority to regulate emissions from foreign-flagged ships calling at U.S. ports, but has declined to use that authority even though the threat to public health from ship emissions is well-known. For example, a July 2008 NOAA study "found that emissions from shipping have a significant impact on air quality and health on both local and regional scales. Extensive measurements of the emissions of light absorbing carbon aerosol, or soot, from commercial shipping showed increased concentrations of this aerosol at U.S. ports on the East Coast, West Coast, and Gulf Coast. The study also suggested that large oceangoing vessels may emit up to twice as much aerosol as previously estimated." Ship emissions also contribute to the formation of ground level ozone, acid rain, and crop damage.

EPA itself recently conducted an initial screening level analysis on the size of the U.S. population living near 47 marine ports and 37 rail yards. The results indicate that at least 13 million people, including a disproportionate number of low-income households -- many African-American and Hispanic families -- live in the vicinity of port-related facilities and are exposed to toxic levels ambient diesel particulate matter. A 2007 study referred to by the IG estimated that PM2.5 emissions (diesel particulates) from ships are responsible for approximately 8,800 deaths in North America annually.

The IG report also tell us: "In addition to public health impacts, serious public welfare and environmental impacts are associated with mobile source emissions at ports. Pollutants such as NOx, SOx, and fine particulate matter (PM2.5) can impair visibility in many parts of the United States. These pollutants contribute to structural damage to bridges and other structures by corrosion or erosion, and damage the exteriors of buildings, monuments, and other culturally important articles. Finally, NOx and SOx emissions from diesel engines contribute to increased acidity and higher amounts of dissolved chemical nutrients (especially nitrogen and sulfur) in water bodies. For example, airborne NOx from diesel and other sources contributes about 32 percent of the excess nitrogen load to the Chesapeake Bay, North America's largest and most biologically diverse estuary, home to more than 16 million people and 3,600 species of plants, fish, and animals."

None of this is a surprise to those of us who have working to clean up the L.A. area ports. The EPA Inspector General report does a good job of showing that the port pollution problem that Southern California has struggled with for years is really a nationwide problem - a problem that the EPA has been ineffective in dealing with.

There are tools available now to help clean up the problem, such as shore-side power (plugging into electrical power while at dock) and low-sulfur, less polluting marine fuel. The California Air Resources Board has enacted regulations to require these measures in California and EPA could do the same nationwide. NRDC hopes that the Obama Administration EPA will take the IG report to heart to protect the health of all Americans.

The Struggle Continues

2009-03-20T23:50:17Z

A federal court ruling today put at risk all the trucking-related clean air gains that NRDC and its community and labor partners have forced the Southern California Ports to support in the last several years. From the Ports' standpoint, what is at stake is their ability to build the new expansion project that they want - because those projects depend on a clean truck fleet that now may never exist.

The Ninth Circuit Court of Appeals issued an opinion today in the American Trucking Association's case against the Southern California ports. The ATA had appealed a decision from U.S. District Judge Christina Snyder that denied the ATA's request for a preliminary injunction against the trucking concession plans enacted by the Ports of Los Angeles and Long beach. I blogged about Judge Snyder's decision last September.

NRDC was hoping that the appellate court would affirm Judge Snyder's denial of an injunction. That didn't happen. The ATA was hoping that the appellate court would issue an injunction itself, putting the concession plans on ice. That didn't happen either.

What the appellate court did was this: it told Judge Snyder that she had made a mistake in the way she handled the case, and sent the case back to her with instructions to analyze separately each of the provisions of the concession plans that ATA attacked to see whether they pass legal muster. The court also told Judge Snyder to consider whether, if she finds some of the provisions illegal, the entire concession agreement should be enjoined pending the trial on the merits.

The appellate court strongly suggested, but did not decide in a way that is binding, that the employee provisions of the Port of Los Angeles concession plan are illegal. Those provisions phase in a requirement that trucks serving the Port be owned by companies that employ the drivers - the theory being that these well-capitalized companies would be better able to maintain, repair and replace the trucks than the low-income drivers who fulfill (or don't) those requirements now.

These are the issues that will be before Judge Snyder very soon. NRDC will be there, fighting for clean air and public health.

L.A. Port Traffic Goes Off The Cliff

2009-03-17T01:02:35Z

Just a quick note to follow up my February 26, 2009 blog post on declining cargo volume at the Port of Los Angeles. According to LA Biz Observed, inbound traffic in February dropped 35.3% from a year earlier, and outbound traffic dropped 27.6%. It's hard to see why, given these conditions, the Port is continuing work on huge expansion projects that are based on projections of constantly rising trade volumes.