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    News / In Depth

    Port of LB Seeks Legislative Loopholes & Entitlements In Sen. Lowenthal's "Port Investment Bill," While Admitting LB/L.A. Ports' "Clean Air Action Plan" May Not Deliver Claimed Pollution Reductions

    (May 6, 2007) -- In a challenge to LB Mayor Bob Foster and LB City Councilmembers with long term implications for the city and the region, the Port of LB's Board of Harbor Commissioners is seeking state legislative entitlement via State Senator Alan Lowenthal (D., LB-SP-PV) to use proposed container fee revenue to expand the Port's infrastructure capacity even if the Ports of LB/L.A. fail to deliver emission reductions claimed in their own highly-publicized "Clean Air Action Plan" adopted just months ago.

    In an April 20 letter obtained by, LB Harbor Commission President James C. Hankla informs State Senator Alan Lowenthal (D., LB-SP-PV) -- with copies sent to Mayor Foster and Councilmembers precluding them from claiming they weren't informed -- that LB's Harbor Commission voted on April 16 to endorse Senator Lowenthal's "Port investment" bill (SB 974) subject to certain amendments. provides the full text of Harbor Commissioner Hankla's letter in pdf form on a link below.

    [PoLB has separately told that the Harbor Commission action was:
    President Hankla moved to support SB 974, if amended as follows:
    a) The bill must require that the user fee funds be spent where collected.
    b) The bill must allow the use of user fee funds for port-related highway projects, such as the Gerald Desmond Bridge replacement project and the SR47 project.
    c) The bill must not restrict the use of user fee funds if Clean Air Action Plan emission reduction goals are not achieved due to circumstances beyond the reasonable control of the Ports.
    Ayes: Hancock, Cordero, Hankla
    Noes: Topsy-Elvord, Walter]

    Sen. Lowenthal's bill has been criticized by some local community and environmental advocates for letting the Ports use bond money to expand their infrastructure without a "no net increase in pollution" guarantee to protect residents. The Port of LB now seeks additional amendments that would entitle the Ports to use container fees ("user fees") without restriction even if the Ports fail to deliver pollution emission reduction goals stated in their "Clean Air Action Plan" due to "circumstances beyond the reasonable control of the Ports."

    In addition, LB Harbor Commissioners seek the explicit authority to use container fees to help fund replacement of the Gerald Desmond bridge...which would for the first time let mega-size container ships enter LB's inner harbor, bringing even larger container volumes ashore into LB...and requiring trucks, trains or other mechanisms to move them.

    In a bullet-pointed section acknowledging at least one failed pollution reduction measure to date and forecasting the possibility of others that could prevent pollution reductions in the Ports' "Clean Air Action Plan," Harbor Commission President Hankla's letter cites the lack of Port-ensured pollution reductions as reasons why Port-desired amendments are "necessary":

    [April 20 Comm'n President Hankla letter text]

  • The CAAP [Clean Air Action Plan] does not estimate emission reductions associated with rail or harborcraft because of the speculative nature of the emission reductions, and therefore the Ports have no control over these sources.

  • While rail emission reductions are not quantified (with the exception of Pacific Harbor Line), the rail measures are dependent on EPA regulatory action.

  • The California Environmental Quality Act (CEQA) will ensure that all projects are mitigated. As described in the CAAP, CAAP measures will be incorporated into each CEQA document and subsequent lease.

    The CAAP is dependent on lease requirements and, hence, project approvals. If a project is delayed (i.e. Middle Harbor) the Port will be unable to meet the emission reduction goals outlined.

  • Some events are beyond the Ports control. Pacific Harbor Lines (PHL) agreement, which is included in the CAAP, requires the use of emulsified diesel fuel. Unfortunately, the vendor has removed the product from the market as of January 1, 2007. As a result, we will not be able to achieve all the emission reductions described for PHL.

  • The Port faces serious litigation challenges that may take years to resolve and may tie-up programs like Heavy Duty Vehicle-1 and prevent implementation of, or potentially much worse, courts may rule against the Port.

  • Emission reductions associated with low sulfur, distillate marine fuels are dependent on the fuel availability. If the fuel availability study being conducted jointly by California Air Resources Board (CARB) and the ports reveal [sic] insufficient fuel to meet our demands, the Port would not meet its estimated emission reductions. [end Hankla letter text]
  • In key language, the letter seeks inclusion of language specifying:

    If any of the source specific emission reduction goals have not been met, due to circumstances outside of the control of the ports, the commission [CA Transportation Comm'n, which Sen. Lowenthal's bill would put in control of dispensing project funding] shall weigh the Ports' ability to achieve the emission reduction when determining whether to award funding to any project.

    Harbor Commission President Hankla's letter also contends that recent AQMD efforts to attach conditions to the use of infrastructure bond funds for rail purposes are similar to amendments recently added to SB 974 which "create a number of obstacles for both the Port and the City of Long Beach in implementing its air quality improvement programs."

    The Port's withholding of its support for Sen. Lowenthal's bill unless the Port receives amendments in its interest contrasts with the March 20, 2007 City Council action (8-0 vote) that endorsed Sen. Lowenthal's bill without any conditions. That Council action effectively lets Senator Lowenthal claim in legislative hearings (as he has) that the City of LB supports his bill...despite subsequent amendments not discussed by the Council.

    At the March 20 Council meeting, 2nd district Councilwoman Suja Lowenthal moved swiftly to argue against attaching any conditions to City Hall's endorsement of Sen. Lowenthal's bill. Amendments sought by the AQMD and proposed by Councilwoman/AQMD boardmember Tonia Reyes Uranga were relegated to an accompanying cover letter that merely asks the Senator to consider them.

    In April, Sen. Lowenthal amended his bill to let the CA Transportation Commission -- a non-elected state body whose job is to dispense infrastructure expanstion money -- decide if the Ports meet the goals of their "Clean Air Action Plan" in dispensing that money.

    The City Council could revisit its current unconditioned support for Sen. Lowenthal's "port investment" bill, and by majority vote could condition city support on amendments to the bill (which the Port of LB is doing). Such amendments could include protective measures including the "no net increase" mechanism that was City policy by explicit City Council votes spanning several years.

    The developments come as Vice Mayor Bonnie Lowenthal and Councilwoman Tonia Reyes Uranga are among a field of Democrats seeking election to the State Assembly in 2008. At least two former Councilmembers (Laura Richardson and Jenny Oropeza) are now seeking election to Congress to replace former Rep. Juanita Millender-McDonald (D., Carson-LB) who routinely supported Port-desired infrastructure expanding projects.

    LB Councilmembers annually approve the Port's spending budget (including sums for state legislative advocacy)...and following LB voters' approval of Prop A on May 1, LB's Mayor now has the power to line-item veto items in the Port's proposed budget (next one coming July-Sept. 2007)...and a 2/3 vote of the Council can replace incumbent Harbor Commission members for any reason.

    At an April 17 hearing on his "port investment" bill, Senator Lowenthal told the State Senate's Transportation Committee that in an April 16 action LB's Harbor Commission "supported this bill with some caveats." Senator Lowenthal continued:

    Sen. Lowenthal [April 17]: ...They want us to make sure that the money stays in the local area. They want to make sure, they're asking for amendments that we focus not just, the bill primarily focuses on rail and grade separations. They would like some of their projects to be focused on, that's a technical issue. And they also want to make sure that they're not held totally accountable for things that are beyond their control. Those are issues that they want to work out with me, but in concept after they passed that [Clean Air Action Plan], they voted last night [April 16] to support SB 974 with these amendments...No, I have not sat down and worked on those amendments yet.

    As previously reported by, Sen. Lowenthal has failed to keep a publicly made pledge to reintroduce his no net increase measure, which Democrat leaders in the state Assembly blocked amid industry opposition in August 2006.

    At a November 2006 CSULB conference on the "True Cost of Goods Movement," Senator Lowenthal explained the importance of the bill and, under pressure during Q & A from a local activist, indicated that he planned to bring it back in 2007 (audio below).

    The bill was blocked in August 2006 by the Assembly Democrats' leadership after it had already cleared the State Senate. The legislation was also opposed by the CA and LB Area Chambers of Commerce and Port-related industry interests.

    The No Net Increase bill sought to set baseline levels for certain pollutants with attainment by 2010. It was supported by the South Coast Air Quality Management District and by the City of Long Beach, the latter through a unanimous vote of the City Council.

    Asked during audience Q & A if he planned to bring the No Net Increase bill back in 2007, Sen. Lowenthal responded by citing reasons why the bill was important...but didn't answer the question. That prompted the questioner, LB activist Bry Myown, to rise from her chair and ask, "Are you bringing it back?..." Senator Lowenthal replied, "Of course I'm coming back [with it]" as he was interrupted by applause.

    To hear this in MP3 form, click here.

    As reported in February 2007 by, Sen. Lowenthal declined to reintroduce the "no net increase" measure. His office emailed us the following statement in response to our request for comment:

    Senator Lowenthal Feb. 27 statement: While I believe the original goals of my "no net increase" bill were laudable at the time, I no longer believe it is sufficient; we need to go further than maintaining the status quo.

    As Chair of the Senate Transportation and Housing Committee and as the author of the bills that will implement the goods movement and emissions improvement portion of Proposition 1B, SB 9 and SB 19, I fully intend to include accountability measures in these bills that will require reductions in all types of harmful emissions.

    I felt, after long deliberation, that a re-introduction of a "no net increase" bill would set conflicting standards as we try to achieve accountable, measurable reductions in pollution related to port activities.

    I remain more committed than ever to holding the ports accountable in regards to reducing harmful emissions related to goods movement.

    Sen. Lowenthal had previously called his "no net increase" in pollution bill the most important bill he'd introduced in all his years in the state legislature...but

    Sen. Lowenthal has also reversed the pubicly stated position he took in July 2006 testimony to Port of LB/L.A. reps in which he said their "Clean Air Action Plan" required the enforcement mechanism of his no net increase bill. At that time, Senator Lowenthal said:

    Sen. Lowenthal [July 2006]: We have to build in to any of our plans, if we're investing billions of dollars, accountability. Everyone must be accountable and we must have put into statute, another bill, SB 764 [no net increase] does, we must put into statute quantifiable air quality standards which must be attained by 2010 which allows for the disbursement of these public funds, but if not attained, there must be significant financial penalties.

    We cannot tolerate after 2010 any increase, we must begin to demonstrate as a first step that we're beginning to bring that pollution down. We cannot simply dole out billions of dollars and not reduce the pollution.

    In contrast, Sen. Lowenthal's 2007 "port investment" cites the Ports' CAAP as its basis for supposed pollution "mitigation"...reductions which Harbor Commission President Hankla's April 20 letter now admits may not be attained.

    To view Harbor Commission President Hankla's letter, click here.

    Mayor Foster and LB Councilmembers have thus far remained publicly silent on the April 20 letter...with nothing on the May 8 Council agenda to address the matter.

    Meanwhile, Sen. Lowenthal's bill with LB City Hall's support continues to advance...scheduled for a May 14 Senate Appropriations [non-policy committee] hearing later this month and on passage, on to the Senate floor.

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