Is it still all up in the air? - New regulations for fuel and marine diesel air emissions in California - Timing and status

Is it still all up in the air? – New regulations for fuel and marine diesel air emissions in California– Timing and status

By attempting to move forward in lowering ship emissions, the state of California may be placing itself in the position of soliciting a new legal challenge.

For the last several years, the issue of emissions from marine diesel engines has become an international cause célèbre but, more particularly, the state of California has assumed a lead role in pushing forward with new, strict guidelines for the use of fuels for vessels within 24 miles of its coastline.  This is their effort to control air emissions in a state that is prone to various forms of air pollution, and thus is particularly sensitive to it. 

Background
The original set of guidelines, as promulgated in 2005 by the California Air Resources Board (CARB) for ship auxiliary engines, were initially challenged on various legal grounds by an industry trade group, the Pacific Merchant Shipping Association, and eventually a federal district court in California ruled in August 2007 that the regulations were improper and overstepped the jurisdiction of a state agency, CARB, into the arena of federal law. This ruling was upheld on appeal in February 2008. It was mentioned by the courts that CARB could cure the legal defects of its regulations by obtaining a waiver from the US EPA, allowing the state regulations to operate in the federal zone of authority, but thus far such a waiver has not been granted by the EPA.¹

The legal problem with these original CARB regulations were that they were air emissions standards for the maritime, interstate and international arenas, and the federal courts viewed this as an illegal imposition of state regulation into an area that is traditionally the exclusive province of the federal government.

This was further aggravated by the geographic scope of the regulations, to vessels transiting within 24 miles of the California coast, thus including an area far beyond California state territorial waters.

CARB then revised its regulations to attempt to satisfy the criticisms that the court had made, to permit it to go forward with regulation of the types of fuels used by marine diesel engines, both auxiliary and main power plants.  The new regulations, issued by CARB in July 2008, attempt to address marine diesel air emissions not by regulating the level of emissions per se, but by imposing rules on the types of fuels that can be used to power such vessel engines, with limits of  sulphur content of 0.5 per cent or less.  However, the regulations still would enforce application to 24 miles off the coast, which various trade groups, including the Pacific Merchant Shipping Association (PMSA), have stated is illegal and thus may probably attract another court challenge. 

International standards
In the meantime, the International Maritime Organization has adopted new air emissions standards to be reached in a downward standard schedule, with a general standard of diesel fuel containing 0.5 per cent sulphur by the year 2020, down from the current 2.7 per cent.  But countries are also given an option to expedite the lowering of marine engine exhaust emissions by establishing local or regional emission control areas off their coasts, and ships operating in those zones would have to use 0.1 per cent sulphur content fuel by the year 2015, while all new ships would have to reduce nitrogen oxide levels by 80 per cent. The US Environmental Protection Agency has stated that it will apply for designating US coastal waters as such emission control areas.

In addition, President Bush recently signed into federal law the Maritime Pollution Prevention Act, which enacts into US law the IMO standards.

Another legal challenge?
The situation therefore is that the state of California is attempting to move forward in lowering ship emissions, but is again placing itself in the position of soliciting another legal challenge, which could once more foil its attempts at state regulation in this area.  By not obtaining a waiver from the US EPA, California state officials are seemingly adopting a course that will run afoul of the prior adverse court rulings, and they will simply confuse and prolong the issues.  The state officials respond that they distinguish the current set of regulations from the prior ones that were struck down, namely that those were emission standards, whereas the current set of regulations being implemented are fuel requirements.  Whether this is a distinction without an actual difference is another matter, and will probably be the subject of judicial scrutiny in the near future. Thus the current posture of these regulations is at least questionable, and therefore must be monitored as to their eventual fate. But it should be noted that as of this writing, no legal challenge has been filed on these proposed regulations, and the time for same is running short.

On 21st October 2008 CARB issued an Advisory² in which it stated the deadline for compliance with the proposed fuel requirements. Requirements regarding fuel use in main engines and auxiliary boilers will be effective on 1st July 2009.  Requirements regarding fuel used in auxiliary engines, however, will be effective as soon as the regulation becomes legally binding, which will probably be in early 2009, about nine to ten weeks after the agency submits it to the California Office of Administrative Law for final approvals (there is not a specific date mentioned).

Whether these dates will hold true – or whether another round of legal challenges will emerge from industry groups, like the PMSA, that will create judicial injunctions, delaying regulatory implementation until a court decision on their merits – is still unknown.  This will necessitate close monitoring of the status of these regulations over the course of the next three to four months.

Footnotes
1 See articles  ”The new California Vessel Air Emission Regulations – Facing legal challenges” in Gard News issue No. 186, “Airing differences – Vessel air emissions in the US” in Gard News issue No. 188, “California diesel engine regulations – An update”
in Gard News issue No. 190 and “Update on California Air Emission Regulations” in Gard News issue No. 191.
2 Available at www.arb.ca.gov/ports/marinevess/documents/advisory1008.pdf.