California’s Emissions Regulations Preempted

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SandBar 7:2, July, 2008 California’s Emissions Regulations Preempted Pacific Merchant Shipping Association v. Goldstene, 517 F.3d 1108 (9th Cir. 2008). Terra Bowling, J.D. The Ninth Circuit has ruled that California’s regulations limiting emissions from ships are preempted by the Clean Air Act (CAA). The court found that the California Air Resources Board (Board) must obtain permission from the Environmental Protection Agency (EPA) before adopting standards related to the control of emissions from vehicles and engines. Background The CAA amendments of 1990 regulate emissions of nonroad sources, including marine vessels. The amendments preempt state regulation of certain sources; however, Section 209(e)(2) of the CAA allows California to regulate other nonroad engines and vehicles if it obtains authorization from the EPA prior to enforcement. In this instance, the Board did not obtain EPA authorization prior to enforcing its Marine Vessel Rules. The rules limit emissions from the auxiliary diesel engines of oceangoing vessels within 24 miles of the state’s coast. The rules regulate the emission of particulate matter, nitrogen oxide, and sulfur oxide, specifying that the emissions may not exceed the emission rates that would result from the vessel using certain (listed) fuels with a sulfur content of no more than 0.5% by weight. The rules exempt certain vessels, including vessels passing through the regulated waters but not entering or stopping at a port in California and vessels owned or operated by any federal, state, local, or foreign government. After the Board began enforcing the rules in January, the Pacific Merchant Shipping Association (PMSA) brought suit alleging that the regulations were preempted by the Clean Air Act (CAA) and the Submerged Lands Act. The United States District Court for the Eastern District of California found that the regulations were emissions standards and were preempted by § 209(e)(2) of the CAA. The court granted summary judgment to PMSA on the CAA claim, but did not rule on the Submerged Lands Act claim. Preemption The Board and other groups appealed the decision, arguing that the Marine Vessel Rules were not within the scope of § 209(e)(2), which requires California to obtain EPA authorization before adopting “standards and other requirements relating to the control of emission from … vehicles or engines.” PMSA again argued that the regulations were preempted by the CAA, as well as the Submerged Lands Act. The board first argued that § 209(e)(2) applies only to new engines and the Marine Vessel Rules only apply to non-new engines, therefore, the rules were not preempted. The court disagreed, relying on a D.C. Circuit case holding that the preemption of § 209(e)(2) applies to both new and non-new engines. Next, the Board argued that the Marine Vessel Rules were not emissions standards subject to § 209(e)(2), but, instead, were “in use requirements” under § 209(d), which are not subject to preemption. The court concluded that the rules were in fact emissions standards. Because the rules subject the engines to precise quantifications, the Marine Vessel Rules “fit within the . . . definition of ‘standards’ as a requirement that a ‘vehicle or engine must not emit more than a certain amount of a given pollutant.’”1 The court also concluded that the Marine Vessel Rules were not mere “in use requirements” under § 209(d). Under 209(d), states may enact in use requirements to “control, regulate, or restrict the use, operation, or movement of licensed motor vehicles.” The EPA has extended this allowance to the regulation of nonroad engines, including marine vessels. The Board argued that the Marine Vessel Rules met the definition of an in use requirement, because they regulated the sulfur content of the fuel in marine vessels. However, the court found that the plain language of the rules regulated emissions and not fuel content. Conclusion In this instance, the court found that the regulations were emissions standards and were therefore preempted by the § 209(e)(2) of the CAA. California will be required to obtain EPA authorization prior to enforcing the Marine Vessel Rules. The court did not address preemption under the Submerged Lands Act. Endnotes 1. Pacific Merchant Shipping Association v. Goldstene, 517 F.3d 1108 (9th Cir. 2008).
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SandBar 7:2, July, 2008

Pacific Merchant Shipping Association v. Goldstene, 517 F.3d 1108 (9th Cir. 2008).

Terra Bowling, J.D.

The Ninth Circuit has ruled that California’s regulations limiting emissions from ships are preempted by the Clean Air Act (CAA). The court found that the California Air Resources Board (Board) must obtain permission from the Environmental Protection Agency (EPA) before adopting standards related to the control of emissions from vehicles and engines.

Background

The CAA amendments of 1990 regulate emissions of nonroad sources, including marine vessels. The amendments preempt state regulation of certain sources; however, Section 209(e)(2) of the CAA allows California to regulate other nonroad engines and vehicles if it obtains

authorization from the EPA prior to enforcement. In this instance, the Board did not obtain EPA authorization prior to enforcing its Marine Vessel Rules.

The rules limit emissions from the auxiliary diesel engines of oceangoing vessels within 24 miles of the state’s coast. The rules regulate the emission of particulate matter, nitrogen oxide, and sulfur oxide, specifying that the emissions may not exceed the emission rates that would result from the vessel using certain (listed) fuels with a sulfur content of no more than 0.5% by weight. The rules exempt certain vessels, including vessels passing through the regulated waters but not entering or stopping at a port in California and vessels owned or operated by any federal, state, local, or foreign government.

After the Board began enforcing the rules in January, the Pacific Merchant Shipping Association (PMSA) brought suit alleging that the regulations were preempted by the Clean Air Act (CAA) and the Submerged Lands Act. The United States District Court for the Eastern District of California found that the regulations were emissions standards and were preempted by § 209(e)(2) of the CAA. The court granted summary judgment to PMSA on the CAA claim, but did not rule on the Submerged Lands Act claim.

Preemption

The Board and other groups appealed the decision, arguing that the Marine Vessel Rules were not within the scope of § 209(e)(2), which requires California to obtain

EPA authorization before adopting “standards and other requirements relating to the control of emission from … vehicles or engines.” PMSA again argued that the regulations were preempted by the CAA, as well as the Submerged Lands Act.

The board first argued that § 209(e)(2) applies only to new engines and the Marine Vessel Rules only apply to non-new engines, therefore, the rules were not preempted. The court disagreed, relying on a D.C. Circuit case holding that the preemption of § 209(e)(2) applies to both new and non-new engines.

Next, the Board argued that the Marine Vessel Rules were not emissions standards subject to § 209(e)(2), but, instead, were “in use requirements” under § 209(d), which are not subject to preemption. The court concluded that the rules were in fact emissions standards. Because the rules subject the engines to precise quantifications, the Marine Vessel Rules “fit within the . . . definition of ‘standards’ as a requirement that a ‘vehicle or engine must not emit more than a certain amount of a given pollutant.’”1 The court also concluded that the Marine Vessel Rules were not mere “in use requirements” under § 209(d). Under 209(d), states may enact in use requirements to “control, regulate, or restrict the use, operation, or movement of licensed motor vehicles.” The EPA has extended this allowance to the regulation of nonroad engines, including marine vessels. The Board argued that the Marine Vessel Rules met the definition of an in use requirement, because they regulated the sulfur content of the fuel in marine vessels. However, the court found that the plain language of the rules regulated emissions and not fuel content.

Conclusion

In this instance, the court found that the regulations were emissions standards and were therefore preempted by the § 209(e)(2) of the CAA. California will be required to obtain EPA authorization prior to enforcing the Marine Vessel Rules. The court did not address preemption under the Submerged Lands Act.

Endnotes

1. Pacific Merchant Shipping Association v. Goldstene, 517 F.3d 1108 (9th Cir. 2008).