On February 27, 2008, the U.S. Court of Appeals for the Ninth Circuit ruled that California's "Marine Vessel Rules," limiting emissions from the auxiliary diesel engines of ocean-going vessels within 24 miles of California's coast, are preempted by the federal Clean Air Act. See Pacific Merchant Shipping Association v. Goldstene , 2008 U.S. App. LEXIS 4171 (9th Cir. Feb. 27, 2008). "In the end," the Ninth Circuit stated, "the [federal] Clean Air Act preempts the Marine Vessel Rules and requires California to obtain EPA authorization prior to enforcement."
The Ninth Circuit's Goldstene decision will likely add to the ongoing debate among the shipping industry, regulators and environmental advocates over the best way ( i.e. , federal regulation, state and local regulation, or some combination thereof) to address air emissions from vessels, and other vessel discharges, such as ballast water. This debate is in addition to the current efforts to address other alleged environmental impacts from the shipping industry.1
Clean Air Act Background
The federal Clean Air Act ("CAA"),2enacted in 1970 and amended substantially in 1977 and 1990, is designed to protect and enhance the nation's air resources, to promote public health and the productive capacity of the nation, and to develop and operate regional air pollution programs.3The CAA establishes a comprehensive program to abate air pollution. It authorizes individual states and the U.S. Environmental Protection Agency ("EPA") to bring enforcement actions, limit emissions, abate pollutants through technologies, create incentive programs, and institute other control measures to accomplish the objectives of the act.4
The CAA grants the federal government the authority to promulgate "regulations containing standards applicable to emissions fromnew nonroad engines and new nonroad vehicles."5On the other hand, the CAA expressly preempts state regulation of emissions from new engines used in construction and farm equipment, new engines smaller than 175 horsepower, and new locomotive engines.6For other nonroad engines and vehicles, the CAA allows California to seek authorization from EPA to adopt "standards and other requirements relating to the control of emissions."7Other states can adopt regulations identical to California's regulations approved by EPA.8
The Goldstene Decision
On January 1, 2007, the California Air Resources Board ("CARB"), without prior authorization from EPA, began enforcing its "Marine Vessel Rules" regarding the emission of particulate matter (PM), nitrogen oxide (NOx), and sulfur oxide (SOx) from ocean-going vessels on all waters within 24 nautical miles of the California coast.9The Marine Vessel Rules apply to emissions of "auxiliary diesel engines," which are engines "designed primarily to provide power for uses other than propulsion" and used for on-board electricity needs.10Such engines, as the Goldstene decision indicates, are typically powered by residual fuel, commonly called bunker fuel in the maritime industry, which has an average sulfur content of 2.5 percent by weight. Under the Marine Vessel Rules, emissions of auxiliary diesel engines must not exceed "the emission ratesthat would result had the engine used the [specified] fuels" with a sulfur content of no more than 0.5 percent by weight.11Compliance with the Marine Vessel Rules is presumed where a vessel uses the specified fuels.12A vessel owner may also comply by "alternative emission control strategies [that] result in emissionsthat are no greater than the emissions that would have occurred" using the specified fuels.13
The Pacific Merchant Shipping Association ("PMSA"), filed a suit seeking to enjoin California from enforcing the Marine Vessel Rules because the CARB failed to obtain the EPA authorization required by the CAA prior to enforcing the Marine Vessel Rules.14The district court granted PMSA's motion for summary judgment on its CAA claim, holding that the Marine Vessel Rules are preempted by Section 209(e)(2) of the CAA15because the regulations are emissions "standards" and not so-called "in-use requirements" that merely regulated how vehicles can be used. The district court found the regulations to be emissions standards "[b]ecause the regulations set numerical requirements for the reduction of emissions relating to particular emissions rather than to a fleet as a whole."16
CARB and several intervenors appealed the district court's decision to the Ninth Circuit, which had previously stayed the district court's order enjoining enforcement pending appeal.17The Ninth Circuit affirmed the district court's decision and vacated the stay of the court's injunction previously imposed. According to the Ninth Circuit, the "key issue" in the case was whether the Marine Vessel rules constitute "standardsrelating to the control of emissions from [ ] vehicles or engines," and thus are preempted, or whether the Rules are mere "in-use requirements" under Section 209(d) that are not preempted. The Ninth Circuit concluded that the Rules were "standards" and, thus, preempted.
The Ninth Circuit first determined that the Marine Vessel Rules plainly fit within the definition of "standards" established by the United States Supreme Court's decision in Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt. Dist. , 541 U.S. 246 (2004) (" SCAQMD "). In SCAQMD , the Supreme Court considered whether regulations that prohibited the purchase or lease of motor vehicles that do not comply with certain emission requirements were preempted standards under Section 209(a) of the CAA.18Although it defined "standard" under Section 209(a), the Supreme Court indicated that its definition of "standard" is applicable throughout Title II of the CAA, which includes Section 209(e).19The Ninth Circuit concluded that the Marine Vessel Rules plainly fit within the SCAQMD definition of "standards" as a requirement that a "vehicle or engine must not emit more than a certain amount of a given pollutant."20The Rules, according to the court, "require that engines 'not emit more than' the amount of diesel PM, NOx, or SOx they would emit if using the specified fuels."21
The Ninth Circuit then determined that the Marine Vessel Rules are not mere "in-use requirements" under Section 209(d) that would survive preemption. The CARB and intervenors contended that the Marine Vessel Rules are a permissible in-use requirement because the Rules regulate the sulfur content of the fuel used by ocean-going vessels. The court, however, rejected that contention, concluding the plain language of the Rules, rather than regulating fuel, created a limit on emissions that is presumed to be met if the specified fuels are used.22 Supplying a presumed mode of compliance, the court concluded, does not alter the nature of the general requirement limiting emissions.23
"In the end," the Ninth Circuit concluded, Section 209(e)(2) of the CAA "preempts the Marine Vessel Rules and requires California to obtain authorization prior to enforcement because the Rules are 'emission standards' that require that engines 'not emit more than a certain amount of a given pollutant.'"24
Implications Of Goldstene
The Ninth Circuit's Goldstene decision will likely add yet another dimension to the ongoing debate among the shipping industry, regulators and environmental advocates over the best way to address air emissions from vessels, and other vessel discharges, such as ballast water. The lawsuit, at its core, is not about whether air emissions and other discharges from vessels should be regulated; rather, it is about who should have the jurisdiction to impose and enforce such regulations. While the shipping industry has generally taken the position that air emissions and other vessel discharges should be addressed at the federal and international levels, some regulators and environmental advocates continue to push for allowance of local or state regulation. In short, the shipping industry's need for global solutions, consistency and the avoidance of a patchwork of federal, state and local regulation is pitted against basic rights of states to protect the public health and safety of their citizens. Yet another added dimension to the debate is the recent effort by citizens' groups to use the hazardous waste laws as a means of regulating air emissions from vessels, alleging that deposition of particulate matter from such emissions constitutes illegal disposal of hazardous waste.25 This ongoing debate, as federal and state legislative efforts and litigation around the country indicates, offers no easy solutions.
It is unknown whether CARB will petition the Supreme Court to hear the case. If it does, it will have to contend with a tribunal that has, in the past, emphasized the need for "uniformity of regulation for maritime commerce" and shown some hostility to states regulating in an area where ". . . the federal interest [in maritime commerce] has been manifest since the beginning of our Republic and is now well established."26
1See K&L Gates Alert , The Perfect Storm: Ballast Water Discharges Face Potential New Regulatory, Legislative and Judicial Rules (September 5, 2007), available at the K&L Gates Newstand, http://www.klgates.com/newsstand/search.aspx.
2 42 U.S.C. §§ 7401 et seq .
3 42 U.S.C. § 7401(b).
4 42 U.S.C. §§ 7410, 7413(a)(2).
5 42 U.S.C. § 7547(a)(3).
6 42 U.S.C. § 7543(e)(1).
7 42 U.S.C. § 7543(e)(2)(A).
8 42 U.S.C. § 7543(e)(2)(B).
9 Cal. Code Regs. Tit. 13, §§ 2299.1(a), 2299.1(b)(1).
10Id. at § 2299.1(d)(2).
11Id. at § 2299.1(e)(1).
12Id. at § 2299.1(e)(1)(C).
13Id. at § 2299.1(g)(1)(A).
14 PMSA also argued that Submerged Lands Act, 43 U.S.C. §§ 1301 et seq., preempts application of the Marine Vessel Rules outside of California's boundary.
15 42 U.S.C. § 7543(e)(1).
16Pac. Merch. Shipping Ass'n v. Cackette, No. S-06-2791 (E.D. Cal. Aug. 30, 2007) (order granting summary judgment). The district court did not rule on the Submerged Lands Act claim.
17Pac. Merch. Shipping Ass'n v. Goldstene, No. 07-16695 (9th Cir. Oct. 23, 2007).
18SCAQMD, 541 U.S. at 248-49.
19Id. at 254.
20Goldstene, 2008 U.S. App. LEXIS 4171 at *17.
21Id., citing Cal. Code Regs. Tit. 13 § 2299.1(e)(1).
22Id. at *18-*19, citing Cal. Code Regs. Tit. 13 § 2299.1(e).
23Id. at *19 .
25See February 6, 2008, notice of intent to sue by the National Resource Defense Council and Coalition For A Safe Environment, available at http://www.nrdc.org/media/2008/080206.asp.
26United States v. Locke, 529 U.S. 89, 99, 108 (2000) (holding that several of Washington's rules governing oil tankers were preempted by the federal regulatory scheme governing the tankers' design, specifically the Oil Pollution Act of 1990 and the Ports and Waterways Safety Act of 1972).
Barry M. Hartman , Christopher R. Nestor, Mark Ruge and John F. Spinello are Partners in Kirkpatrick & Lockhart Preston Gates Ellis LLP. Mr. Hartman engages in a national litigation and counseling practice, with an emphasis on matters involving environmental issues, the regulation of chemical and biological materials, as well as hazardous substances and wastes. He can be reached at (202) 778-9338. Mr. Nestor concentrates his practice in commercial litigation, environmental litigation, zoning and land development litigation, administrative law, and commercial and industrial tax assessment. He can be reached at (717) 231-4812. Mr. Ruge co-chairs the Public Policy and Law practice group at K&L Gates, one of the largest policy groups in the United States, and is a member of the firm's Maritime group. He can be reached at (202) 661-6231. Mr. Spinello's practice focuses on regulatory counseling, advocacy and environmental litigation for clients in the energy, maritime, cement, glass, iron and steel, chemical and highway construction industries. He can be reached at (973) 848-4061.