Ports of Harm

Last December, the two sometimes-competing mayors – L.A.’s Antonio Villaraigosa and Long Beach’s Bob Foster – sat side-by-side at ceremonies opening the region’s first liquefied natural gas pumping station for big trucks in Carson. Surrounding them were a couple dozen white tractor-trailer rigs, so clean that the sushi served up to the crowd and dignitaries, including oilman Boone Pickens, should have been spread across their cabs instead of on tables under a tent.

The scene stood a world apart from the industrial noises and grit just on the other side of the block wall. You could imagine a giant vacuum cleaner appearing from under the hood of one of the rigs that could sweep trillions of tiny specks – so small that thousands of them could fill the head of a nail – that now spew from the diesel exhaust of trucks clogging the 710 and lodge in the heart and lung tissue of thousands of people unlucky enough to live and work in their path.

Speaker after speaker declared the day historic and an example of the unity needed to crack the elusive political code that can lead to a cleanup plan that, once and for all, will sharply reduce the deadly pollution spewing from the 18,000 trucks that ferry goods from the cities’ competing ports. On this bright morning, it sounded possible that somehow the right side finally neared victory in the perennial L.A. battle pitting environmentalists and health advocates against those who would gladly sacrifice a neighbor’s lung as the cost of expanding the economy.

Oilman Pickens, a very rich man, and founder of Clean Energy – told the gathering the deal to clean up the ports came together over breakfast with L.A. Harbor Commission President S. David Freeman. Everyone in the crowd had a reason to believe in fairy tales that morning.

It all sounded too good to be true, and now, three months later, it may be proving to be so.

Unlike the unity proclaimed that day, the two ports have gone their own ways in the name of cleaning up the air. The Port of Long Beach commissioners, who answer to Foster, have decided not to adopt the revolutionary plan that would have done away with independent truckers, and allowed only big trucking firms to do business at the port starting in 2012. The Port of Los Angeles commissioners, who answer to Villaraigosa, continue to insist that independent truckers lack the wherewithal to buy and maintain clean-burning trucks, even with government help. Details of their plan to be considered in coming weeks are still being developed. It might be the radical version, doing away with independent truckers, or a “hybrid” proposal.

“I support both ports, but it pains me that they haven’t been able to work out a solution,” said State Sen. Alan Lowenthal, the Long Beach Democrat who’s been at the forefront of efforts to get industry to pay its share of the cleanup. “We might be on a collision course. There are different ways of getting there. But it’s too bad it can’t be resolved.”

Lowenthal said his primary goal is to see an aggressive plan approved by both ports that won’t get tied up in court. He wouldn’t choose the Long Beach plan over the Los Angeles plan: “There is right on both sides.”

The dispute over what economic model to install has exposed the sometimes conflicting agendas of L.A.’s leading forces – big labor, the environmentalists and big business. The trio, embodied by the Teamsters, the Natural Resources Defense Council, and the American Trucking Associations, must be satisfied or you can expect trouble, delays and lawsuits.

And while the piles of threatened legal actions might fill a Brinks truck, so would the money that’s already been approved to fuel plans to clean up the port. The fight to get a piece of the $2 billion – and growing – that’s been set aside by the two ports, the state Air Resources Board and the South Coast Air Quality Management District – is a driving force in this dispute.

If the Teamsters could organize 18,000 truckers, the Jimmy Hoffa Jr.-led union could reap millions of dollars in union dues and leverage enough clout to increase its control at ports nationwide. The union found easy allies in the Los Angeles Alliance for a New Economy, a key player in the living-wage battle for L.A.’s janitors and hotel workers, and in the NRDC, a major force in bringing environmental issues to the forefront. It took an NRDC lawsuit in 2001 to stop construction on the China Shipping Terminal after it was nearly 90 percent complete because pro-growth commissioners had blindly approved it without requiring an environmental impact report.

NRDC lawyer David Pettit said that on February 6 he gave the Long Beach commissioners a 90-day notice that he intends to sue them on the basis of a federal statute: the Resource Conservation and Recovery Act (RCRA), a law intended to stop an action that “poses an imminent and substantial danger to public health.”

His legal theory has not been tested, but because no one disputes the continuing health problems caused by the pollution, he’s confident that he will win after some “legal skirmishing.” He also does not foresee a long, protracted legal battle, saying cases tend to be heard quickly in federal court. If the NRDC ends up suing and wins, the judge would create a list of objectives, a schedule and then a “receiver” who would oversee the port cleanup. Pettit says the technology exists to put the plan “into practice this afternoon if they wanted to.”

Pettit also says the NRDC’s primary goal is to clean the air, and he dismisses any talk that he’s doing the bidding of Big Labor. “It’s been a distraction. We have many issues with the ports that don’t have anything to do with labor.”

He makes no apologies for doubting whether independent truckers could afford new trucks under the Long Beach plan. “We have a common goal with the Teamsters. They have reasons for wanting to support this trucking plan. We have reasons for wanting to support this trucking plan. We have the same goal but we’re coming from different directions.”

He added that he doesn’t want his agency to be called a “pimp” for the Teamster concerns.

And, like other recent battles over developments with so many powerful stakeholders, the lines sometimes become blurred. Remember Mayor James Hahn’s many-billion-dollar plan to expand Los Angeles International Airport? It was a disastrous idea, and current plans are but a shadow of the Hahn vision, but the plan promised thousands of jobs to win labor’s backing and it offered just enough money to mitigate aircraft noise and other impacts to win support of the environmental community. But in the end, even offering the right compromises and money to the special interests failed to make it a feasible project, and it was back to square one.

The lesson for the port clean-up: Beware the sometime conflicting motives of all the players. As Villaraigosa put it at a conference last week on the goods movement, competing interests of economic growth, health and fair treatment of workers are at play in the port drama: “I’ve always believed and I’ve said many times that the way to have the coexistence, if you will, of the environment, of the economy, of the many communities that make up the city, is that everybody has to benefit.”

The Big Breakup

Months after that ceremony of unity in Carson, the revolution to transform the ports is in danger.

Both ports are facing the revolution-squashing possibility of litigation – even Los Angeles, which has yet to propose, much less pass a comprehensive plan. Both ports managed to march in step on key issues for the first few months. They levied cargo fees on containers and banned dirty trucks in the coming year.

But only Long Beach, with Mayor Foster, has put two and two together and figured out a way to use the fees to phase out the dirty, old trucks for newer, cleaner trucks. He has only been in office two years, but like his counterpart in Los Angeles, he’s known to harbor ambitions for statewide office, maybe even governor one day. He’s a former trustee of the California state university system and used to be president of Southern California Edison.

While at the helm of the giant utility, he oversaw the development of major renewable clean energy programs, including solar, geothermal, biomass and wind. He said he considered labor to be an ally, going all the way back to his first job decades ago as a carpet installer.

Even people who disagree with the Port of Long Beach’s rejection of the most radical plan to do away with independent truckers, say Foster is no lackey for big business. Throughout his career at Edison and later as a Cal State trustee, he worked closely with labor. “I’m very sympathetic to labor,” Foster says. “It pains me to have to part way with the Teamsters.”

Foster, sounding like a man who’s decided he cannot serve two masters, says that he must put the clean-air interests of his constituents above those of labor. “I have a responsibility to protect the health of my residents, and we need to get the air cleaner faster. I hope people understand that I’m trying to do my part.”

Foster insists that for Long Beach and for the sake of cleaning up the air as fast as possible, his plan is the best. Changing the rules so fundamentally that only drivers who work for a company can pick up a load at the port doesn’t make sense to a guy like Foster.

“We’re doing this to clean the air. That’s the first priority. Anything else is secondary.”

Long Beach uncovered the beginnings of what they diplomatically call an “agnostic” program last month. Whoever pays for the trucks – independent owner-operator or employed – will receive aid. Long Beach will provide a grant covering 80 percent of the cost, the interest of the remaining 20 percent and pre-paid maintenance. Whoever owns the truck pays for the remaining 20 percent or about $20,000, depending on the model. The funding for this plan will come from the $35 fee being levied on the owners of each 20-foot cargo container that comes in through the ports.

Next door, the port in Los Angeles is still trying to hammer out the details, although “details” would suggest that they have figured out the general direction of their proposal to rid their port of dirty trucks. Despite any rumors, an employer mandate is far from finalized. They’re still in the studying phase of creating a proposal. They’re considering plans like Long Beach’s without an employer mandate, plans with an employer mandate, and hybrid plans. They don’t have a proposal to vote on. They don’t even have a date or a rough estimate of when they might vote on a proposal.

The mayor said that compared to the employer mandate still being considered in the port next door, Long Beach’s plan is “less drastic” and “more workable.”

A call to revolution, it’s not.

But Foster has been banking on the idea that “less drastic” and “more workable” might be just the kind of adjectives the ports need to achieve any sort of recognizable forward motion.

A Rude Awakening

This language of urgency and pragmatism dominates the politics of Long Beach, and rightfully so. The sick days, the asthma and cancer rates, the death toll on residents around the port area is staggering.

But Foster is learning the hard way that a pressing, deadly health crisis won’t give him enough political capital to forge ahead in Southland politics.

He might have had inklings of this before, which is why he eliminated the employer mandate from his proposal. He thought that such a move would eliminate the Achilles heel of the proposal still being considered next door. He would not go so far as to say that an employer mandate would be outside the bounds of legality, but he did say it would weaken the legal basis for the entire proposal.

Perhaps the threat of a lawsuit from the Natural Resources Defense Council was to be expected. The NRDC claims that the employer mandate is the best, most workable solution for labor and the environment. But the lawsuit baffles Foster: “I don’t see how it challenges us to move faster. I don’t see how a lawsuit of any nature would do that.”

He said that the port has already addressed or has plans on the way to address many of the issues described in the letter of the intent to file a lawsuit. He cites the truck ban that will go into effect in October and the cargo fee charged to those who are using the port as a part of their business, like Target, Wal-Mart, and Costco. He said that while he cannot move fast enough on an issue like this that poses such an imminent threat, his office is moving as fast as it can.

But it was a bigger blow to the mayor’s proposal for the mayor to find that he hadn’t conceded enough for the American Trucking Associations. The ATA has openly threatened to sue the Port of Los Angeles should they try to pass an employer mandate. One of their representatives, Clayton Boyce, said that if they passed such a mandate, they would be incredibly vulnerable to litigation. But even Long Beach’s plan did not escape the scrutiny of the association, which filed comments with the Federal Maritime Commission, arguing the legal case against both proposals.

At issue is how much authority ports have in regulating commerce. The ATA takes issue with anything the ports do that could be seen as regulating routes, trade, and pricing.

They believe a recent Supreme Court ruling backs them up. The Court voted unanimously to overturn key portions of a Maine law that sought to hold shipping companies responsible for verifying the age of customers buying tobacco. The court ruled that states could not pass their own laws regulating shipping companies. Justice Stephen Breyer penned the decision, writing, “To interpret the federal law to permit these, and similar, state requirements could easily lead to a patchwork of state service-determining laws, rules, and regulations.”

Based on this case, Boyce believes that the Port of Los Angeles has no authority to mandate that truckers be employed, even in the name of social justice and fair wages for a key player in the production chain.

Those in favor of the employer mandate fire back that legally ports can create their own set of regulations in response to a public health crisis.

Before the association filed its complaints against both ports, Foster hinted that the looming threat of legislation is justification enough for a more incremental approach. But neither Port got off easy. And now Long Beach finds itself in the especially unsavory position of angering both groups who are saying that his plan oversteps its bounds and that it doesn’t go far enough.

The Coalition for Clean & Safe Ports and the National Resources Defense Council have attacked his plan and called it “half-baked.”

And, unfortunately, Foster’s response to these criticisms has done little to allay fears that he has buckled to the trucking industry. He insists that he’s doing everything in his power to attack the problem of clean air head-first, but he hasn’t offered even as much as a politician’s empty promise to ease the load of the truck drivers during any phase of the port cleanup. He dodges the question of whether it is fair to ask drivers, many of whom now make about $30,000 after taking care of upkeep on their trucks, to take on $20,000 in debt to get behind the wheel of a clean-burning truck. Like a broken record, he can only insist over and over that his plan is the easiest and fastest way to tackle the problem of air pollution.

“Let’s get on with it. Let’s get these clean trucks out there. There’s no other way to do this. We’re making it as easy as possible.”

Foster, like a good politician, is probably loath to admit to what his plan doesn’t address. But if, as someone who got his start laying carpet and was a card-carrying union member, he is as sympathetic to labor as he claims, he needs to acknowledge the concerns of labor and the drivers more fully.

Petitt, from the NRDC, says that Foster will have the chance to redeem himself this week, when the two will meet to revise their proposal and attempt to hit the legislative sweet spot that will bypass time-wasting litigation on the road to cleaner air.

For some inspiration, the pair met over lunch at the Carson LNG-pumping station, where the various players preached unity only three months ago. They might as well bring in Freeman, the 80-year-old career energy manager tapped in 2005 by his mayor to take on the mission of cleaning up pollution at the Los Angeles port. After the ceremony in Carson last December, Freeman declared the task of cleaning up the ports, and reorganizing the way business now is done, to be nothing short of a revolution. “Come and watch us,” he responded, just a bit impatiently, when asked how he and his fellow commissioners would pull it off.

That was three months ago, and the world is still watching.

Daryl Paranada contributed to this story.