Maritime/Environmental, Land Use and Natural Resources Alert
March 2008
Authors:
Barry M. Hartman
+1.202.778.9338
barry.hartman@klgates.com
Christopher R. Nestor
+1.717.231.4812 christopher.nestor@klgates.com Mark Ruge
+1.202.661.6231 mark.ruge@klgates.com
John F. Spinello
+1.973.848.4061 john.spinello@klgates.com
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Ninth Circuit Holds That California’s
“Marine Vessel Rules” Are Preempted By
Federal Clean Air Act
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”),2 enacted 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.3 The 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 from … new nonroad engines and new nonroad
vehicles.”5 On 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.6 For 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.”7 Other states can adopt regulations
identical to California’s regulations approved by EPA.8
1
See 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).
Maritime/Environmental, Land Use
and Natural Resources Alert
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.9 The 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.10 Such 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 rates … that would result had the engine
used the [specified] fuels” with a sulfur content of no
more than 0.5 percent by weight.11 Compliance with
the Marine Vessel Rules is presumed where a vessel
uses the specified fuels.12 A vessel owner may also
comply by “alternative emission control strategies …
[that] result in emissions … that 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.14 The 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 CAA15 because 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
9
Cal. Code Regs. Tit. 13, §§ 2299.1(a), 2299.1(b)(1).
10
Id. at § 2299.1(d)(2).
Id. at § 2299.1(e)(1).
11
12
Id. at § 2299.1(e)(1)(C).
13
Id. at § 2299.1(g)(1)(A).
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.
14
15
42 U.S.C. § 7543(e)(1).
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.17 The 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
“standards … relating 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.18 Although 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).19 The 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.”20
The 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”
Pac. 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.
16
Pac. Merch. Shipping Ass’n v. Goldstene, No. 07-16695 (9th Cir. Oct. 23, 2007).
17
SCAQMD, 541 U.S. at 248-49.
18
Id. at 254.
19
Goldstene, 2008 U.S. App. LEXIS 4171 at *17.
20
Id., citing Cal. Code Regs. Tit. 13 § 2299.1(e)(1).
21
March 2008 | 2
Maritime/Environmental, Land Use
and Natural Resources Alert
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
See 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.
25
United 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).
26
22
Id. at *18-*19, citing Cal. Code Regs. Tit. 13 § 2299.1(e).
23
Id. at *19.
24
Id.
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