01 FEB 2009
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.
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.
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?
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.