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Updated: Ninth Circuit Court of Appeals Holds that the Federal Clean Air Act Preempts California’s Emissions Standards for Auxiliary Diesel Ship Engines

Beveridge & Diamond, P.C., March 7, 2008

On February 27, 2008, the United States Court of Appeals for the Ninth Circuit issued a decision in Pacific Merchant Shipping Association v. Goldstene, holding that California’s Marine Vessel Rules (Cal. Code Regs. tit. 13, § 2299.1) are preempted by the Federal Clean Air Act ("CAA").

California’s Marine Vessel Rules regulate emissions from auxiliary diesel ship engines, which are used primarily for onboard electricity. The Rules require oceangoing vessels in California waters (within 24 miles of California’s coast) to reduce emissions of diesel particulates, nitrogen oxides and sulfur dioxides. In Pacific Merchant Shipping Association v. Goldstene, a group of companies that own or operate oceangoing vessels filed suit against the California Air Resources Board ("CARB"), arguing that the CAA preempts CARB’s attempt to regulate auxiliary diesel ship engines unless EPA authorizes such regulation. The Ninth Circuit agreed.

CARB began enforcing the Marine Vessel Rules on January 1, 2007, without seeking EPA approval for the Rules pursuant to CAA Section 209(e)(2) (42 U.S.C. § 7543(e)(2)). In the case, CARB argued that Section 209(e)(2) approval is required only for new engines and the Rules did not apply to new engines and that the Rules were "in-use requirements" as opposed to "emission standards."

The Ninth Circuit rejected these arguments. Adopting the D.C. Circuit’s analysis of Section 209(e)(2) in Engine Manufacturers Association v. EPA, 88 F.3d 1075 (D.C. Cir. 1996), the Ninth Circuit found that Section 209(e)(2) applies to both new and non-new engines and "creates a sphere of implied preemption surrounding those regulations for which California must obtain authorization." Slip Op. at 1747-48. Further, the Ninth Circuit held that, by their very terms, the Marine Vessel Rules were emission standards as defined by the U.S. Supreme Court in Engine Manufacturers Association v. South Coast Air Quality Management District, 541 U.S. 246 (2004), because they "explicitly prohibit the operation of auxiliary diesel engines ‘which emit[] levels of diesel PM, NOx, or SOx in exceedance of the emission rates’ that would result from the use of certain fuels." Slip Op. at 1748. Thus, the Ninth Circuit concluded, "CAA § 209(e)(2) preempts the Marine Vessel Rules and requires California to obtain EPA authorization prior to enforcement." Slip Op. at 1751.

The Ninth Circuit decision follows EPA’s denial of California’s request for a preemption waiver for its motor vehicle greenhouse gas emissions standards (http://www.bdlaw.com/news-291.html) and serves as another blow to California’s attempts to regulate air emissions from mobile sources. CARB is appealing EPA’s tail pipe emissions waiver denial in federal court. Press reports indicate that CARB also plans to request en banc review of this decision by the full Ninth Circuit in addition to requesting that the EPA grant California a CAA waiver for the Marine Vessel Rules on an expedited basis and allow CARB to enforce the regulations while it seeks the waiver.

The Marine Vessel Rules were part of California’s broader Goods Movement Action Plan aimed at reducing air pollution from international trade and goods movement in the state. Additional CARB measures to reduce air emissions from marine vessels are pending, including a proposed regulation that would reduce emissions of diesel particulate matter, nitrogen oxides and sulfur dioxides from the use of main propulsion diesel engines and auxiliary boilers on ocean-going vessels within California waters. Press reports indicate that CARB intends to proceed with regulations pending for marine vessels notwithstanding the Ninth Circuit’s ruling. More information regarding these regulatory activities may be found at http://www.arb.ca.gov/ports/marinevess/marinevess.htm.

Update, March 10, 2008: CARB announced that as of March 10, 2008, it will resume enforcement of the Marine Vessel Rules pending further appeals of the Ninth Circuit decision.  CARB will not enforce the Rules against any vessel that left its last port-of-call before March 14, 2008 on route to California.  To view CARB's March 10, 2008 notice, please click here.

Update, May 7, 2008:  CARB announced that as of May 7, 2008, it will discontinue enforcement of the Marine Vessel Rules pursuant to the injunction ordered by the district court.  The May 7 announcement supersedes the March 10 advisory stating that CARB would continue to enforce the Rules pending further appeal.  The Ninth Circuit did not grant CARB’s petition for rehearing.  CARB plans to seek EPA authorization to enforce the Marine Vessel Rules, pursuant to CAA Section 209(e).  CARB also will develop a new regulation for ship auxiliary engines that will address the issues raised in the Ninth Circuit decision discussed above.  To view CARB’s May 7, 2008 advisory, please click here.

For additional information, please contact Nicole Leonard at (nleonard@bdlaw.com) or Jia Yn Chen at (jchen@bdlaw.com).

For a printable PDF of this article, please click here.