Two days ago, my colleague Adrian Martinez wrote about a scheduled hearing where the Federal Maritime Commission (FMC) would decide whether to file a lawsuit against the ports of Los Angeles and Long Beach to enjoin all or parts of the ports' clean trucks programs. Yesterday, according to a confusing press release from the FMC, in a 2-1 decision the FMC decided to sue the ports over some portions of the programs.
This is a setback for the cause of clean air at the ports, as Senator Feinstein and others have recognized. In taking this unprecedented step, the FMC flouted the National Environmental Policy Act (NEPA), Clean Air Act, and the Energy Policy and Conservation Act, ostensibly because FMC staff thinks that the air near our ports could be cleaned up more cheaply.
It must be great to be able to make that analysis from a desk somewhere in Washington, D.C., when the Los Angeles and Long Beach Harbor Commissions and City Councils, in long, public proceedings, have decided how best to fix our local problems.
Fortunately, the FMC does not have the last word in this matter. NRDC, Sierra Club and the Coalition for Clean Air will be filing a lawsuit this week to rein in the FMC's cavalier treatment of federal environmental law and put a stop to this rogue behavior before it spreads to other ports. In our democracy, two appointed officials in Washington, D.C. do not get to substitute their judgment for the decisions of elected decisionmakers about local pollution control. FMC Commissioner Brennan agrees. His statement in dissent of the FMC's vote is so strong that I'm taking the liberty of quoting it in full below:
Commissioner Brennan's statement:
In an October 29th closed-session meeting of the Federal Maritime Commission, Commissioner Joseph E. Brennan voted against a motion to seek a federal injunction to stop the Clean Trucks Program (CTP) of the Port of Los Angeles.
Commissioner Brennan considers it a colossal mistake for the Commission to try to block a program of environmental protection and economic expansion that has been endorsed as reasonable and necessary by, among others, Los Angeles Mayor Antonio Villaraigosa, the Los Angeles Board of Harbor Commissioners, U.S. Senators Dianne Feinstein and Barbara Boxer, Speaker of the House Nancy Pelosi, U.S. Representatives Laura Richardson and Loretta Sanchez, and some 30 other members of the California delegation of the U.S. House of Representatives.
In Mr. Brennan's view, the Commission should give more deference to the policy judgments made in this matter by elected officials. Following years of extensive study in a public process with input from all concerned, Los Angeles has adopted a Clean Trucks Program that fairly falls within the broad definition of "reasonable" under the Shipping Act. Under these circumstances, the Commission majority has no basis for forcing the Port of Los Angeles to adopt an alternative port-management model that individual commissioners happen to think is reasonable.
Commissioner Brennan's vote against going to court represents his recognition that Los Angeles has superior knowledge of port operations and a direct interest in seeing the Clean Trucks Program succeed so as to clean up the air, allow expansion of the infrastructure, and promote efficient port operations. Brennan said he is appalled that the Commission's decision to seek an injunction displays a bureaucratic arrogance and ignores the felt needs of the citizens of Los Angeles to clean up their air, expand their port, and promote a living wage for truck drivers working at the port.
Brennan noted that the federal courts in California recently on two occasions rebuffed attempts by the trucking lobby to block the Clean Trucks Program. Brennan says he believes the FMC's attempt to block the CTP should, and will, meet the same fate in court.
For the Commissioner, the basic question under the Shipping Act is whether it is reasonable for the Port of Los Angeles to require truck drivers to be employees. It is likely, as Los Angeles argues, that so-called independent owner-operators will not have the control, capital, and economies of scale needed to keep their trucks within environmental standards. On that basis alone, it would be reasonable for Los Angeles to phase in its employee requirement.
Commissioner Brennan noted that the so-called independent owner-operators in Los Angeles earn, on average, only $29,000 annually, which qualifies a family of four for over $18,000 in public assistance, such as the earned-income tax credit, Section 8 housing, reduced-price school meals, and Women, Infants, and Children (WIC). In addition, a task force authorized by the Office of the Attorney General in California found numerous instances of trucking companies' illegally misclassifying workers as "independent contractors" to avoid the cost of workers' compensation, disability, and minimum wage laws. Attorney General Jerry Brown has brought suit on the basis of these alleged violations.
Commissioner Brennan asked his fellow commissioners to recognize these and other economic realities when evaluating whether any increased costs associated with the Clean Trucks Program would arguably be outweighed by positive effects on the health, safety, and welfare of the citizens of Los Angeles. He believes the Commission can legitimately take into account that the employee mandate could cause large numbers of truck drivers to no longer need government assistance, effectively ending taxpayer subsidies of large commercial shippers that can well afford to make payments supporting a living wage for truck drivers. There is simply no cause for the taxpayers of Los Angeles to subsidize large shippers.