New Development
In a rather surprising turn of events, the California Air Resources Board ("CARB") announced on March 10, 2008, that, effective immediately, it will once again enforce its "Marine Vessel Rules."1 This notice was issued despite a February 27, 2008, opinion by the Ninth Circuit Court of Appeals that these Marine Vessel Rules are preempted by the federal Clean Air Act. CARB decided to begin enforcing the regulations again pending its request for a rehearing by the Ninth Circuit, which will be due by the end of the month. This action by CARB means that shipowners and operators must once again comply with the California Marine Vessel Rules-at least until the Ninth Circuit rules on CARB's request for a rehearing. Although these regulations are effective as of March 10, 2008, they will not be enforced against a vessel that departed its last port-of-call prior to March 14, 2008, and that is currently en route to California.
Background
On January 1, 2007, CARB began enforcing its Marine Vessel Rules regarding the limitation of certain emissions from auxiliary diesel engines aboard oceangoing vessels on waters within 24 nautical miles of the California coast. The regulations prohibited the operation of auxiliary engines within the regulated waters that emit levels of particulate matter, nitrogen oxide, or sulfur oxide, in excess of the rates that would result had the engine used certain specified fuels with a sulfur content of no more than 0.5 percent, by weight.
The Pacific Merchant Shipping Association ("PMSA") filed an action against CARB seeking a ruling that the regulations were preempted by federal law. On August 30, 2007, the district court ruled that the regulations were preempted by the Clean Air Act. The district court prohibited CARB from enforcing the regulations, and CARB appealed. On October 24, 2007, the Ninth Circuit permitted CARB to once again enforce the regulations while the case was on appeal.
On February 27, 2008, the Ninth Circuit emphatically rejected the arguments advanced by CARB and ruled that the Marine Vessel Rules are preempted by the Clean Air Act unless California first obtains authorization from the U.S. Environmental Protection Agency. Accordingly, the Ninth Circuit ruled that CARB could no longer enforce the regulations. (For more detailed information about these arguments and the Ninth Circuit's ruling, see the March 2008 Marine Developments Advisory, "California Court Helps Clear the Air for Vessels" at http://www.blankrome.com/index.cfm? contentID=37&itemID=1478.)
Current State Of Play
As announced in its March 10th notice, CARB will once again enforce the Marine Vessel Rules while its request for a rehearing is pending before the Ninth Circuit. As a result, ship operators must comply with CARB's regulations pending a further decision, which could take several months.
Footnotes
1. http://www.arb.ca.gov/ports/marinevess/documents/auxenforce031008.pdf
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