We admit it. As opinionated and argumentative as we may be, we’re not lawyers. 

But The Road has had the good fortune to be advised by, kibbitz with, post the guest commentary of, and perhaps even have the occasional drink with bona fide, bar-admitted counsel who serve in environmental, maritime and labor fields. Their expert company assures us that despite maneuvers by the nation’s largest trucking lobby and their Beltway pals to temporarily obstruct the LA and Long Beach Clean Trucks Programs – both the good one and the bad one, respectively – the Federal Maritime Commission’s request for a preliminary injunction doesn’t have much of a legal leg to stand on, particularly because (and ironically enough) the two ports adopted two different policies.

Not that the outgoing Administration’s threat to the boldest green-growth program in our nation’s history (courtesy of Los Angeles and its mayor) isn’t real. After all, destroying the environment has been a hallmark of the Bush White House, and it wants to leave a parting gift to the polluting industry. That’s precisely why a little known D.C. agency that reviews ocean-bound commerce alleged it had jurisdiction over a sweeping initiative to prevent thousands of LA residents from premature illness and death (while likewise lifting barriers to expansion and protecting millions of Southern Californians through improved port security).

But back to the legalese, which will be heard in federal court on Friday. Although the FMC motion relates to the discussion agreement the twin ports requested and received from the agency, the main elements to which the FMC objects – a requirement for trucking companies to employ drivers to sustain a clean fleet and an incentive plan to get alt-fuel vehicles on the road quicker – are elements in which the ports were not in agreement. Los Angeles boldly adopted the employee-driver mandate, while Long Beach sold the community out to appease the industry, and the two ports never even discussed the incentive plan adopted by Los Angeles, according to the ports’ filing.

And at the risk of overdoing the legalese, this is a distinction with a big difference. Congress gave the FMC the authority to act against agreements that cause an unreasonable increase in competition. If there is no agreement, then the FMC has no authority to act. Except they have – exposing the nakedly biased nature of the FMC’s attack. Their allegiance to old-school industry is so strong that they are willing to extend beyond their Congressional mandate in an effort to stop progress.

The port’s brief does divulge that nearly 1,000 trucking companies have signed up for concession agreements, evidence that there will still be no reduction in competition or unreasonable increase in transportation costs. (In fact, both large and small American Trucking Association member companies filed declarations in favor of the Clean Trucks Programs, indicating their desire grow and prosper under the business model.)

But competition “is more than a headcount, and any analysis of economic impact must also account for the human health, safety, and security costs that the drayage industry has forced the ports and surrounding communities to bear,” the ports argued.  

However, the FMC “held no hearing and produced no administrative record below, has produced no analysis weighing the relative harm to interested parties and the public interest (including public health), and has declined to consider the effects of its action on the environment.”

Given the sparse evidence, a judge in a cherry-picked venue should agree with the two previous courts that there is no legal basis to shelve a critically needed environmental and public health initiative based on the unsupported assertion that “competition among hundreds of competing trucking companies will someday dwindle away.”  

But again, we’re not litigators. We’re just pragmatic – and prepared – laypersons. Should Southern California’s forward-looking environmental initiative be held up by out-going DC political motivations, we’ve got a plan.

Stay tuned for how President-elect Obama and leaders in Congress who have strongly endorsed the Los Angeles Clean Trucks Program can help ensure the policy is enacted, and see to it that it becomes the green-growth model in ports around the nation…