Clean Ports Act — Dead on Arrival (in the Senate)
An impressive coalition of environmental groups, labor organizations, local governments, and economic development agencies have teamed up to sponsor the Clean Ports Act of 2010, introduced on July 29th by Rep. Jerry Nadler of New York (who looks something like a cube but is an effective and conscientious legislator), and co-sponsored by 67 members of Congress. As I read it, the Act would essentially allow state and local governments to set air quality standards for vehicles going in and out of ports — authority that a federal district judge ruled last April was pre-empted by federal law.
I just learned about this through an e-mail from the Los Angeles Alliance for a New Economy, an impressive economic development organization based in this city. Lots of folks have trumpeted the legislation: LAANE, the Sierra Club, and the Teamsters, just to name a few. It’s not often that you can get Carl Pope and Jimmy Hoffa to write on op-ed together, but they did, strongly endorsing the Act.
Why are the Teamsters suddenly so gung-ho about environmental regulation? The issue is two-fold: 1) whether local government such as Los Angeles can prevent non-union trucks from using its port; and 2) whether local governments can institute container fees to pay for cleaner trucks. If local governments had this authority, then many of them would demand unionization and institute the fees.
Which is why there’s no way it passes. The auto and trucking interests will fight this thing, it will pass the House, and get filibustered in the Senate. You know those Republicans and Tea Partiers who love talking about local control and the Tenth Amendment? That only happens when it’s about providing health care to people. When it’s about the trucking industry, suddenly they start slobbering over Alexander Hamilton.
I’m somewhat skeptical that anyone is really principled about pre-emption and state control (although there are a few exceptions). But conservatives make this argument more often: they insist that it’s not about substance, you understand, just about the federal Leviathan. They thus claim to enforce constitutional punctiliousness (unless it’s about repealing the Fourteenth Amendment). They’ll be hoisted on their petard here, but the inability to feel shame is a great weapon in politics, and in the absense of filibuster reform, they’ll get away with it. Then folks will vote against the Democrats because “they didn’t get anything done.” Ah, voters….
Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic – Land Use, the Environment and Loc…READ more