Metropolitan News-Enterprise


Tuesday, March 29, 2011


Page 1


Ninth Circuit Upholds State’s Rules on Pollution From Vessels




California regulations mandating use of cleaner marine fuels on vessels operating within 24 miles of the state’s coastline are constitutional and not preempted by federal statute, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed a ruling by U.S. District Judge Morrison C. England Jr. of the Eastern District of California, denying summary judgment in a suit against the state by the Pacific Merchant Shipping Association.

The California Air Resources Board adopted its “vessel fuel rules” in 2009, requiring that vessels calling at a California port use low-sulfur fuels whenever traveling within the area encompassed by the rules. The shippers contended that federal law precludes the state from regulating fuel content within the approximately 14,000 square miles of ocean lying within the 24-mile limit but beyond the state’s three-mile coastal zone.

CARB previously had adopted rules limiting emissions within the same zone. The Ninth Circuit struck down the rules, however, noting that because they were emission standards and not in-use fuel restrictions, they were preempted by the Clean Air Act.

CARB then adopted the current regulations, which now permit vessels to “use either marine gas oil (which typically averages 0.3% sulfur and is capped at 1.5%), or marine diesel oil with a sulfur limit of 0.5% or less.” But in the second phase, scheduled to begin next January, either type of fuel will be limited to 0.1 percent sulfur.

The regulations are to remain in effect until the executive officer of CARB certifies that the federal government has adopted and is enforcing requirements that will achieve equivalent reductions in emissions.

Preemption Argument

In challenging the current rules, the shippers argued that they were preempted by the Submerged Lands Act, the Commerce Clause, and general maritime law. England disagreed and denied the plaintiff’s motion for summary judgment, but certified the case for interlocutory appeal.

Third Circuit Senior Judge Robert Cowen, sitting by designation, said the district judge was correct. The rules, he said, are a reasonable and permissible response to the “especially severe” pollution that plaques the South Coast Air Basin.

Cowen acknowledged that regulating sources so far from the state’s land boundaries “pushes a state’s legal authority to its very limits.” But the plaintiff failed to show that the federal government intended to absolutely bar state regulation beyond the three-mile zone.

The Submerged Lands Act, Cowen explained, limits each state’s “seaward boundary” to three miles from the coast, as an exercise of congressional power to define the terms under which states are admitted to the union.

The judge noted, however, that the act does not expressly preempt all application of state laws beyond the boundary, that there is a long-standing presumption against implied preemption, and that courts have upheld various exercises of state power to regulate or punish conduct occurring beyond the state’s boundaries, based upon the impact of those activities on the state.

Cases Cited

Cowen cited a number of cases, including Skiriotes v. Florida, 313 U.S. 69 (1941), upholding the state’s right to prohibit its residents from using diving equipment to take sponges, even outside the state’s territorial waters, and State v. Stepansky (Fla. 2000) 761 So.2d 1027, upholding the conviction of a U.S. citizen under a Florida law allowing that state to prosecute crimes committed aboard cruise ships on the high seas when the ship embarked from Florida and no other entity asserted jurisdiction.

The same presumption and reasoning, the judge went on to say, leads to the conclusion that neither the “dormant” Commerce Clause nor general maritime law preempts the CARB rules.

Senior Judge A. Wallace Tashima and Judge Barry G. Silverman joined in the opinion.

The appeal was argued by Erich Wise of Long Beach’s Flynn, Delich & Wise for the shippers, Deputy Attorney General Nicholas Stern for CARB, and Barbara B. Baird for the South Coast Air Quality Management District as intervenor in defense of the rules.

The National Resources Defense Council, Inc. and Coalition for Clean Air, Inc. also intervened.

The case is Pacific Merchant Shipping Association v. Goldstene, 09-17765,


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