On Friday, May 16, 2008, Long Beach Mayor Bob Foster gave a talk that blew the roof off the business-oriented FuturePorts conference in Long Beach. The beautiful setting, right by the water (thank you, Nancy), was a strong contrast to the tough words that Mayor Foster directed at industry. He told them, bluntly, that if the environmental measures that his port has enacted are halted, port expansion will halt also. “I'll see to it,” he said. And he will.
I hope that trucking industry representatives were in the audience, because they were the focus of Mayor Foster's promise. As reported in the May 19, 2008 Journal of Commerce, the American Trucking Association contends that the Long Beach plan is "unacceptable" because it contains a "command and control structure in the concession plan." Curtis Whalen, executive director of the American Trucking Association’s (ATA) Intermodal Conference, is quoted as saying: "We're definitely moving toward a trigger date for a lawsuit." Well, if ATA pulls the trigger, Mayor Foster says he will pull the plug on Port of Long Beach expansion, something no group with economic investment in the port wants to see.
The ATA's "command and control" trope hides the silliness of their core position: that the ports cannot legally decide that some trucks can come onto their land and some can't. Industry interprets the Commerce Clause in the U.S. Constitution to mean that because port-serving trucks are in interstate commerce, a truck full of fertilizer and fuel oil driven by a terrorist could not be denied admittance to the ports. Their interpretation says that while the ports may own their property and oversee cargo delivery from ships, trucks, or trains, they do not have any legal authority on their property to say the trucks should be electric and the ships should use low-sulfur fuel. It's like having a neighbor with a dilapidated, oil-leaking truck who parks on your driveway. According to the ATA, even though it's your property, you can't tell him not to park there/to fix his truck/maintain the truck because he has his own standards of upkeep that supersede yours because he owns the truck.
This is not just silly; it is plainly wrong. The Cities of Long Beach and Los Angeles are landlords who can control access to their property - here, their ports. As high courts have emphasized in several decisions, there is a "market participant" exception to the usual Commerce Clause rules when a governmental body is acting to buy, sell or lease property, rather than as a regulator. That is precisely the situation at the ports of LA and Long Beach who must consider public health impacts, just as airports have used this same exception to say, ban smoking on the premises.
The more the port expands, the more money the port makes. Stalling expansion projects is not good for business, but it is essential that any expansion project consider environmental and community health impacts. Some companies understand this: Maersk, the world’s largest shipping line, and Foss Maritime, which supplies tugs and barges on the West Coast and elsewhere, have already moved away from using heavily-polluting high-sulfur marine fuel. But the ATA doesn't want to play by those rules and Mayor Foster responded by saying he’ll just take the port expansion off the table.We're committed to working with both ports to ensure community and environmental concerns are heard while the port develops. Mayors Villaraigosa and Foster, Councilwoman Hahn, and LA Harbor Commissioner Freeman are also committed to this goal. At the end of the day, it will be the trucking industry, not NRDC, stalling the clean trucks plan at both ports, a plan that would provide cleaner air to port residents beginning this fall. But, depending on how the federal court rules, they may have to wait a lot longer than that.