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Why Clean Air and Worker Justice Are in Peril at America's Ports

The air in Los Angeles is the cleanest it's been in decades, but it may be a matter of time before backsliding begins.

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Los Angeles has long had the worst air quality in the nation, and one major cause of that in recent decades has been the twin ports of Los Angeles and Long Beach. When the latest battle to improve the air at the ports reached the Supreme Court in mid-April, the Obama administration showed up with an amicus brief... on the side of dirty air. 

Here's how: The Obama administration backed a strict interpretation of federal law, preventing the Port of Los Angeles from enforcing rules on trucking companies as part of its “Clean Trucks Program.”

It's the very same Clean Trucks Program that candidate Obama praised in a letter to three California mayors of port cities when he was running for president in November 2007.

"I write to express my support for the efforts you are making to ensure that our ports are environmentally sound, secure, and supporting middle-class living standards for those working there," his letter to the mayors of Los Angeles, Long Beach and Oakland began. "In particular, the Clean Trucks Program recognizes trade, labor, and the environment are not separate, but linked issues. The program sets tough standards to clean up truck diesel emissions and provides generous subsidies for vehicle purchase and retrofit. And it also recognizes that responsibility for investing in higher standards is best borne by firms rather than the individual truck drivers fighting to make a living with little leverage to negotiate for better pay."

Running as a candidate, Obama was pitching a strong appeal to labor and environmental activists, whose work had been instrumental in shaping the Clean Trucks Program. But now he's taking a conventional big-business view favoring strictly uniform national laws—even though there's strong precedent for certain kinds of exceptions. The port argues that it's operating as a “market participant,” not a legislative body, and this allows it to act like a private business would, setting rules for people it does business with, which is qualitatively different than passing laws that apply to the general public. Airports routinely regulate taxis and limousines using a similar concession model and their representative organization, Airports Council International North America,  has filed an amicus brief in support of the port.

“If our name was Walmart, you wouldn’t even be having this lawsuit. We’re operating like a private company,” said David S. Freeman, former president of the port's governing board.

Administration supporters might argue that the provisions involved would only have a minor impact on air quality. The employee mandate, requiring that trucking companies treat truckers as employees, rather than independent contractors, was already struck down by an appeals court panel. But if Obama really believed what he wrote in that 2007 letter, the earlier setback should have only increased his efforts on other fronts, such as direct labor law enforcement, which has not happened.

The employee mandate was the most prominent concern of Obama's one-page letter. He made the case for it over the course of two full paragraphs, in which he wrote, "Many of these truckers may be legally misclassified. Worker misclassification is an issue I have worked on at the federal level to remedy because it hurts workers and costs the taxpayer billions in uncollected taxes.... According to a recent survey of truckers at the ports, five out of six drivers only work for one trucking company at a time and nearly nine in ten own only one truck. They are dependent on the trucking companies for work."

Over the next three years, the argument Obama made in his letter was strengthened substantially on two fronts: First, within a few months of Obama's letter, two independent economic studies were released, both concluding that the employee mandate had a crucial role to play in ensuring the long-term success of the Clean Trucks Program, just as Obama argued in his letter. Second, in December 2010, a much more comprehensive study of port trucking across the country was released, which conclusively removed any uncertainty over port trucker misclassification.

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