Metropolitan News-Enterprise


Tuesday, October 4, 2011


Page 3


Supreme Court Asks U.S. for Views on California Shipping Pollution Rules


By a MetNews Staff Writer


The U.S. Supreme Court yesterday asked the solicitor general to weigh in on the validity of California regulations mandating use of cleaner marine fuels on vessels operating within 24 miles of the state’s coastline.

The court, on the first day of its new term, issued a brief order inviting the federal government to express its views on whehter the court should grant certiorari in Pacific Merchant Shipping Association v. Goldstene, 10-1555. The Ninth U.S. Circuit Court of Appeals ruled in March that the rules are constitutional and not preempted by federal statute.

U.S. District Judge Morrison C. England Jr. of the Eastern District of California earlier reached the same conclusion, rejecting a challenge brought by the Pacific Merchant Shipping Association.

The California Air Resources Board adopted its “vessel fuel rules” in 2009, requiring that vessels calling at California ports 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.

In challenging the current rules, the shippers argued that they were preempted by the Submerged Lands Act, the Commerce Clause, and general maritime law.

But Third Circuit Senior Judge Robert Cowen, sitting by designation, said the rules 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, he said.

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.

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.

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


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