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Gard News 191, August/October 2008

 Update on California Air Emission Regulations

CARB discontinues enforcement of the Ocean-Going Auxiliary Diesel Engine Regulations.

The California Air Resources Board (CARB) recently announced that it will discontinue enforcement of the Ocean-Going Auxiliary Diesel Engine Regulations. These regulations, which limit emissions of diesel particulate matter, sulphur oxides and nitrogen oxides from auxiliary diesel engines and diesel-electric engines on ocean-going vessels operating within 24 miles of the California coastline, have been the subject of an on-going court battle in California since they entered into force on 1st January 2007.1 The following chronology highlights the checkered history of these regulations and their enforcement:

– On 30th August 2007, the United States District Court for the Eastern District of California issued a permanent injunction which prohibited CARB from enforcing the regulations. The court stated that the CARB had exceeded its authority under the Clean Air Act because it was required to obtain the approval of the Environmental Protection Agency (EPA) and had not done so. The CARB appealed this decision to the Ninth Circuit Court of Appeals.

– On 24th October 2007, before deciding the appeal on the merits, the Court of Appeals agreed to lift the enforcement stay that had been imposed by the District Court (which meant that the regulations could continue to be enforced pending the Court of Appeals' decision on the issues raised by the appeal).

– On 27th February 2008, the Court of Appeals issued its opinion, agreeing with the District Court’s decision that CARB had exceeded its authority under the Clean Air Act in issuing and enforcing the regulations without obtaining prior approval of the EPA. The CARB then petitioned the Court of Appeals for a re-hearing of its decision and advised that it would continue to enforce the regulations until the Court of Appeals ruled on the petition for re-hearing.

– The Ninth Circuit Court of Appeals denied the CARB's petition for re-hearing. On 7th May 2008, an advisory was issued stating that CARB intends to seek authorisation from the EPA to enforce the regulations and that the enforcement of the regulations would be suspended pending approval from the EPA. In the same advisory, it was announced that CARB "...will also develop a new regulation for ship auxiliary engines" and that the CARB "encourages ship operators to use 0.5 per cent sulphur marine distillate oil (MDO) or marine gas oil (MGO) within 24 nautical miles of California".

Gard News will continue to keep readers informed of developments.

1 See articles “The new California Vessel Air Emission Regulations – Facing legal challenges” in Gard News issue No. 186, “California diesel engine regulations – An update” in Gard News issue No. 190 and “Ports of Los Angeles/Long Beach – Voluntary incentive programme for low sulphur fuel” elsewhere in this issue of Gard News.



Gard News 191, August/October 2008

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Gard News is published quarterly by Gard AS, Arendal, Norway.