Is the haze clearing on the US approach to vessel air emissions?
Changing regulatory atmosphere
In recent editions of Gard News we have tracked the continually changing regulatory atmosphere of vessel air emissions in the United States.1 The last of these articles2 discussed a new legislative bill which had been proposed by California Democratic Senator Barbara Boxer called the “Marine Vessel Emissions Reduction Act of 2007.” The proposed bill is aimed at reducing sulphur and nitrogen oxide emissions to a level significantly below the standards called for under MARPOL Annex VI. Senator Boxer is the chairman of the Senate Committee on Environment and Public Works and has been publicly airing her view concerning what she claims are the dire effects of poor-quality shipping fuel and ship engines on the health of residents near the ports of Los Angeles and Long Beach.
The proposed bill is now competing against two bills previously proposed by Republican Congressman Jim Oberstar. One of these bills, H.R. 802, which would amend the current Act to Prevent Pollution from Ships (APPS) and implement the provisions of MARPOL Annex VI, passed the House of Representatives on 26th March 2007 but it has been stalled in the Senate. It is believed that Congressman Oberstar’s second proposed bill, H.R. 2701, which seeks to address various energy and climate change issues, but also incorporates the same APPS amendments as H.R. 802, is a tactical way to have the legislation approved as this bill is more likely to pass both the House of Representatives and the Senate.
Meanwhile, on 30th August 2007 the US Federal Court for the Eastern District of California decided the widely-publicised legal action brought by the Pacific Merchant Shipping Association (PMSA) against vessel emission regulations instituted by the California Air Resource Board (CARB) at the beginning of this year. The regulations placed an emission rate cap on auxiliary diesel and diesel electric emissions for all commercial vessels within 24 miles from the California coast and included criminal sanctions for violations.
To summarise, the court found that the CARB regulations were pre-empted by the US Clean Air Act, a federal statute.3 In its decision, the court held that the State of California can not promulgate any “standards or other requirements relating to emissions” for non-road engines unless approved by the Environmental Protection Agency (EPA). Historically, the US Clean Air Act, as amended in 1967, pre-empted States from adopting emission standards for motor vehicles.
However, the statute contained an exemption which permitted California to regulate emissions from cars which was, subsequently, extended to “non-road sources” as long as the EPA approved standards proposed by California. The concession had been given to California because it had been the leader in the establishment of standards for regulation of automotive pollutants emissions. But the court noted that a distinction in this case was that Congress clearly intended to pre-empt States from adopting “emission standards” and that the challenged regulations affects the field of international maritime commerce, which has historically been within the purview of the federal government. The court did not address whether or not California is pre-empted from enforcing the regulations beyond three nautical miles from its shoreline as opposed to 24 miles as contained in the CARB regulations.
The result is that the court has issued a permanent injunction in favour of PMSA whereby California can no longer enforce the regulations. But the injunction may be subject to reversal as the court noted that, should defendants receive authorisation from the EPA pursuant to their rights under the Clean Air Act, they may seek to dissolve the injunction.
The decision is the next chapter in what appears to be a political battle both at the federal and state level to decide whether or not the United States will adopt an international or unilateral approach to vessel source air pollution. The Bush administration has previously stated its support for adoption of MARPOL Annex VI and it had been widely anticipated that H.R. 802 would finally pass this legislative session and be signed into law. However, the competing Democrat bill has stifled movement of the proposed legislation in Congress. It is possible that, regardless of which of the competing bills is passed, US courts will ultimately have to interpret the application of vessel emissions legislation. Gard News will continue to keep readers apprised.
Gard News 187, November 2007/January 2008
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