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Gard News 186 - The new California Vessel Air Emission Regulations

 



By Frank Gonynor of Eastham, Watson, Dale & Forney, LLP, Houston


New regulations that aim to reduce vessel engine air emissions for ships passing within 24 miles of the California coastline face legal challenge.

California
Regulations issued by the California Air Resources Board on 1st January 2007 provided measures designed to regulate and reduce vessel engine air emissions for ships passing within 24 miles of the California coastline.1 These requirements are in addition to those regulations already enforced by the US Coast Guard. Besides placing strict limits on emissions of diesel particulate matter, nitrous oxide and sulfur oxide, the regulations also require inspection by California officials of documentation regarding fuel switching procedures to be used in California regulated waters, and records regarding the purchase, supply and specifications of the fuel. Additionally, vessels are required to document the make, model, serial number and specifications of all auxiliary engines subject to the regulations, as well as piping diagrams and specifications for mixing tanks or other fuel handling tanks. Violation of any of these regulations carry various penalties under California law, including hefty fines that escalate with each successive violation. Alternatively, the regulations provide that vessel owners can enter into a programme called “Alternative Control of Emissions” (ACE), a plan that requires a much higher degree of cleanliness than is mandated by either MARPOL or US federal law.

Challenge
The California regulations have faced immediate challenge by an industry group, the Pacific Merchant Shipping Association (PMSA), which filed a lawsuit in the US District Court in Sacramento, seeking injunctive relief from the application of these regulations. The regulations are subject to legal attack on several grounds. First, the assertion by the state of California of its authority beyond its state territorial waters is certainly questionable, although California state officials argue that this is within the federal limits, and is a permissible extension of jurisdiction. Secondly, the types of regulations involved could be seen as undue interference by a state within federal and international zones of authority and regulation. The legal issue, which has arisen before in other guises, pits an individual state, such as California or Washington, and its interests in regulating air or water pollution, against the United States federal government’s interest in regulating maritime commerce. Typically, when a state law is enacted covering a subject area traditionally occupied by the federal government, or when state law overlays, modifies or restricts a federal regulation, the federal courts will generally invalidate the state law in question, under a legal doctrine known as pre-emption.

It should also be noted that several environmental groups and at least one governmental agency have filed with the court a request to intervene in the case, in support of the new regulations, and thus the case is gaining wider attention in the US.

Washington and Massachusetts

For instance, in two other recent cases reported in the last issue of Gard News,2 the states of Washington and Massachusetts attempted to enforce oil pollution laws and regulations of their own, over and above those promulgated by the federal government enforced by the US Coast Guard. In one case, United States v. Locke,3 the state of Washington was chastised by the US Supreme Court for these regulations, most of which were struck down by that court. In a more recent case, the state of Massachusetts, in reaction to the Buzzards Bay oil spill, attempted to pass its own regulatory anti-pollution measures regarding vessels calling in that state. The US District Court in Massachusetts issued an injunction against those laws being enforced, although that case has been appealed.4

Comment
The individual states can not be faulted entirely in their motivation to try to institute their own legal schemes. After all, the Oil Pollution Act of 19905 specifically reserves to the states their ability to install their own legal schemes. The only problem arises when a state’s chosen scheme goes beyond the state geographic authority or unduly overlaps US Coast Guard and Federal authority (including international conventions that the US is a signatory to, such as Marpol). In those cases, state regulatory schemes have been thwarted by the courts. It will be interesting to see how the latest efforts of California, as well as those of Massachusetts, will fare in the US judicial system, and whether other individual states will be encouraged, or discouraged, to launch their own regulatory schemes. It can also be noted that authorities in New York and Texas may be considering their own vessel emission regulations.

Footnotes
1 13 Cal Civ. R. Code §§ 2299.1 and § 93118 (Deering 2007).
2 See article “US federal law v. US state law – The legal battle continues” in Gard News issue No. 185.
3 United States v. Locke, 435 U.S. 151 (1978).
4 United States v. Massachusetts, 440 F.Supp 2d 24 (Mass. 2006).
5 33 U.S.C. §§ 2701 et. seq.

 

Gard News 186, May/July 2007

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

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