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Gard News 204, November 2011/January 2012

By Frances L. Keeler,
Keesal, Young & Logan, Long Beach.

Ruling may impact on the enforcement of visible emissions regulations against vessels throughout the US.

As a further example of California's aggressive enforcement of environmental laws, the Los Angeles City Attorney filed criminal charges against the owners and operators of a refrigerated cargo vessel for alleged emissions of smoke in excess of California state and local laws. The court dismissed the action, finding that the laws do not apply to diesel engines on a ship because they are preempted by the federal Clean Air Act.  This June 2011 ruling could have a significant impact on the enforcement of visible emissions regulations against vessels throughout the United States.

At question are California Health and Safety Code Section 41701 and South Coast Air Quality Management District (SCAQMD) Rule 401.  Both these statutes limit the amount of visible emissions, or smoke, from a source.  The California statute limits emissions to a Ringelmann 2 for 3 minutes in any one hour, and the SCAQMD rule set a more stringent Ringelmann 1 standard.  The statutes are enforced by a trained visible emissions reader, in this case an inspector for the air agency.  The SCAQMD inspector alleged that the vessel had lost main engine power and had alternatively been running its auxiliary engines for power. The auxiliary engine may have also been damaged; however the inspector still issued a citation for "excessive smoke."

In a motion to dismiss the action in its entirety, the attorneys for the defendants argued that the laws were preempted by Section 209(e) of the federal Clean Air Act (CAA).  Under the Clean Air Act, states have the primary responsibility for controlling emissions from stationary sources, while the federal government had primary jurisdiction over mobile sources.  The Clean Air Act preempts state and local jurisdictions from adopting and enforcing "standards or other requirements" that regulate emissions from non-road engine sources such as ships, locomotives and farm and construction equipment.  While California may obtain an authorisation for such regulations, it has failed to do so.  According to the Clean Air Act, once California obtains an authorisation for the regulations, any other state or local jurisdiction may adopt the identical regulation.

Superior Court Judge Henry Hall agreed with defendants that the federal statute had created a preemption for non-road engines from state and local regulations, such as the general smoke abatement laws, that limit visible emissions.  In dismissing the action, Judge Hall rejected arguments by the City Attorney that ships were not mobile sources when at berth or that the visible emissions laws were not "standards or other requirements".  In his 18-page opinion Judge Hall found that "[t]he statutes in issue in this case are clearly preempted and may not be enforced against the defendants under the Supremacy Clause of the United States Constitution."

Historically, violations of smoke abatement regulations by ships in California and other states have resulted in modest administrative or civil penalties.  This is the first known effort to prosecute such violation criminally since the Clean Air Act Amendments in 1990 that added the preemption provision.  While civil or administrative settlement of violations of this type would normally result in penalties in the USD 2,000 to USD 5,000 range, a criminal conviction in this case could have resulted in penalties in the hundreds of thousands of dollars, and according to the City Attorney, up to three years of probation under a court supervised compliance plan.

While not precedent at the lower court level, this case could have wider implications.  Because the Clean Air Act provisions preempt state and local regulation of engines in a variety of mobile sources similar rules in other state and local jurisdictions may be subject to challenge.


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