Court denies new hearing for marine auxiliary engine rules

The Ninth Circuit Court of Appeals rejected a rehearing petition by California air regulators and others, effectively blocking a state rule mandating reductions in ocean going marine vessel auxiliary engine emissions.

The court is expected to reinstate an injunction against the state rule by the end of the week.

The case stems from the California Air Resources Board's implementation of the Auxiliary Engine Rules at the start of 2007. Marine vessels use auxiliary engines to provide power to onboard systems not involved with propulsion such as lighting and refrigeration. The rules sought to limit emissions from these engines by such measures as the use of low-sulfur fuel, which burns cleaner than typical bunker diesel fuel.

The San Francisco-based Pacific Merchant Shipping Association, which represents nearly 90 percent of the U.S. West Coast shipping lines, sued CARB shortly thereafter in California District Court, alleging the board had not followed correct procedures in instituting the emission rules. The PMSA, while not opposing the specific CARB rules, argued that although the federal Clean Air Act allows states to regulate mobile source emissions such as marine vessels, the regulations must be reviewed and approved by the U.S. Environmental Protection Agency, which CARB did not do. A federal waiver, argued the PMSA, would make the CARB regulations the de facto national standard and thus create a level playing field for all shipping interests.

In August, a District Court judge agreed with the PMSA, issuing a declaratory judgment finding CARB had failed to obtain the proper EPA approvals. The judge, without deciding on the actual merits of the CARB regulations, cited constitutional issues of state versus federal authority and ordered CARB to stop enforcing the rules. The stay on the regulations, imposed by the judge in the case and not asked for by the PMSA lawyers, was made effective Aug. 30.

CARB, along with the National Resources Defense Council, the Coalition for Clean Air, the South Coast Air Quality Management District and the City of Long Beach, appealed the decision to the U.S. Ninth Circuit and asked the court to remove the injunction on the regulations until the appeals case is heard.

In October, the court stayed the District Court injunction, allowing the rule to be enforced while the petition process moved forward.

In addition to rejecting the CARB appeal en banc, the three-judge panel also made the unusual step of putting the case to the entire Ninth Circuit bench.

The PMSA recommended to its members that they continue to use the low-sulfur fuel on a voluntary basis. The group reports that polls of its members show that the vast majority are doing so. The PMSA has also said it continues to encourage its members to move forward with ongoing efforts to test alternative emission cutting technology. 

Source: American Shipper