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Melissa Lin Perrella’s Blog

California's Clean Shipping Fuel Rules Win In Court Today

Melissa Lin Perrella

Posted March 28, 2011 in Curbing Pollution, Health and the Environment, U.S. Law and Policy

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Today, the Ninth Circuit Court of Appeals recognized California’s severe air pollution problem and gave the state the green light to protect its citizens from ship-related exhaust.  In a unanimous decision, the Ninth Circuit ruled that California has the authority to require ocean-going vessels that visit this state’s ports use cleaner marine fuels. 

California’s “Vessel Fuel Rules” have the opportunity to be one the most health protective regulations ever adopted.  The rules require thousands of vessels that ship our TVs, tennis shoes and cars over the Pacific and to our ports to use less polluting fuel starting 24 nautical miles from California’s shore.  Over the course of six years, between 2009 and 2015, these rules will prevent 3,500 premature deaths. 

Eighty percent of Californians are exposed to air pollution from large ocean-going vessels as their exhaust drifts inland.  Every day, these vessels spew toxic diesel particulate matter (PM) in an amount equivalent to 150,000 big rig trucks driving 125 miles daily.  While people living close to ports are particularly affected, wind patterns, geography, and meteorology transport vessel-generated air pollution well beyond our coastline and into too many of our lungs.

The shipping industry, led by PMSA (Pacific Merchant Shipping Association), launched a legal challenge against the rules arguing that the rules were “preempted” by the federal Submerged Lands Act, and that they violated the Dormant Commerce Clause. 

The Submerged Lands Act was adopted in 1953 to restore state rights in the submerged lands within three miles offshore to promote the harvesting of oil and gas from the ocean seabed.  There is nothing in the Submerged Lands Act that suggests that Congress intended the Act to prevent coastal states from regulating offshore air pollution from ships.  Nonetheless, PMSA vigorously maintained that California does have not have the legal authority to regulate farther than 3 miles from its coastline (the regulations reach 24 nautical miles from shore). 

In a 45-page opinion, the Court told PMSA that it “reads too much into the [Submerged Lands Act] and what Congress intended to achieve,” and that the association failed to raise any facts demonstrating that the shipping industry was sufficiently harmed to sustain its Commerce Clause challenge.  

Indeed, PMSA told the district court that compliance with the Vessel Fuel Rules is not technically impossible or even difficult.  It failed to show that the requisite fuel was unavailable or would adversely affect operations.  And the facts demonstrated that the cost of compliance, once passed on to the consumer is minimal—we’re talking an extra dime on a plasma TV—whereas the cost to a person’s life dealing with a lifetime of asthma can be astronomical.   

The Court concluded by stating:

"In the end, we acknowledge the unusual characteristics and circumstances of the Vessel Fuel Rules.  We are clearly dealing with an expansive and even possibly unprecedented state regulatory scheme.  However, the severe environmental problems confronting California (especially Southern California) are themselves unusual and even unprecedented.  Under the circumstances, we do not believe that the Commerce Clause or general maritime law should be used to bar a state from exercising its own police powers in order to combat these severe problems."

The message is clear.  It is time for the shipping industry to get on board or get out the way.  California is moving forward to protect its citizens, and now has the Ninth Circuit firmly behind it.

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