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Gard News 195, August/October 2009

Every breath you take? – California's legal and regulatory changes with regard to ship air emissions

 

A new lawsuit, seeking an injunction to halt the enforcement of the 2008 marine emissions regulations and challenging their validity, has been filed, but an initial ruling upholds the regulations.

 

 

An article in Gard News issue No. 1931 discussed the new regulations promulgated by the California Air Resources Board (CARB) issued in July 2008, which handed down specifications on the types of fuels that can be used in vessel engines for ships operating within 24 miles of the California coastline.  These regulations had been crafted to try to address a successful court challenge by an industry group, the Pacific Merchant Shipping Association (PMSA), to a prior set of marine engine air emission regulations announced by CARB, which was held by a federal appeals court to be overly broad, and an intrusion into federal authority and jurisdiction. An advisory was issued by CARB in October 2008, that these regulations would be put into place, with a starting deadline of compliance for auxiliary engines in early 2009 and a deadline for fuel used in main engines and boilers on 1st July 2009.

It was mentioned in the Gard News article in issue No. 193 that a significant possibility of a filing of a court case in an attempt to enjoin these regulations might occur, and that prediction has been realised. At the end of April 2009, once again the PMSA filed a lawsuit in a federal district court in Sacramento, asking for an injunction to halt the enforcement of the regulations, and challenging their validity.

The grounds for that legal challenge were again jurisdictional in nature, namely that the CARB regulations seek to control vessel activities up to 24 miles from shore, which is far beyond the California state territorial waters limit of three miles, as per the federal Submerged Lands Act.2 Also in the court papers, the PMSA mentioned that the US government is moving forward to designate an Emissions Control Area under MARPOL Annex VI, and when that comes into force, it will in fact give even more strict limits on sulphur content of fuel, up to 200 miles from the US coastline.

The federal court, in deciding the request for injunctive relief, considered the substantive legal arguments raised by the PMSA against the CARB regulations, but ruled that the regulations could stand.  The court saw a distinction between the traditional area of state regulation of air pollution and navigational issues, which were seen as a federal matter.  It will be very interesting to see if the PMSA appeals the decision, although in a public statement that organisation indicated it was “fully prepared to comply” with the new regulations.

However, even if that occurs, since 2008 there has been a change in White House administration, and this new federal government regime will probably adopt a completely different stance on state control of air emissions with regard to the entire nation. In fact, on 30th June the US Environmental Protection Agency (EPA) announced a total reversal of its prior decision, now granting California’s application for a waiver by the EPA of federal supremacy on air pollution issues, giving that state unfettered ability to issue further air pollution laws.3 Other states will probably soon follow the lead of California. While aimed at terrestrial sources, there is no limit as to maritime matters, and thus that decision may further solidify the state of California’s legal footing in regulating marine sourced air emissions.

These two recent events make a prediction of the ultimate outcome even more challenging than before, and so continued monitoring of the ultimate fate of this issue must continue, but it would now seem the trend is moving clearly towards state-by-state control of marine air emissions, through fuel standards and other means.

Footnotes
1 See article “Is it still all up in the air? – New regulations for fuel and marine diesel air emissions in California – Timing and status”.
2 43 U.S.C. sec. 1301.
3 CARB could cure the legal defects of its regulations by obtaining a waiver from the US EPA specific as to the marine emission regulations, which thus far had not been granted, but the waiver recently announced by the EPA could be construed to meet this aim.

 

Gard News 195, August/October 2009

Any comments to this article can be e-mailed to the Gard News Editor.

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