California's offshore ship emissions rules upheld by 9th Circuit

The Sacramento BeeMarch 29, 2011 

The merchant shipping industry has failed a second time to short-circuit California's effort to combat the toll on the health of its population from air pollution caused by oceangoing vessels.

The industry is contesting California's authority to regulate fuel used by seagoing vessels up to 24 miles off its coast.

The Air Resources Board estimates the vessels' emissions of particulate matter cause 300 premature deaths across the state every year.

California mandates that ships "use cleaner marine fuels in diesel and diesel-electric engines, main propulsion engines, and auxiliary boilers" while operating far beyond the traditional three-mile jurisdictional limit. The Pacific Merchant Shipping Association, in a lawsuit closely watched by states on both coasts, argues that federal statutes and the U.S. Constitution preempt those state rules.

The association asked U.S. District Judge Morrison C. England Jr. to summarily invalidate the rules adopted by the ARB in 2009.

England refused, and the association took its case to the 9th U.S. Circuit Court of Appeals. On Monday, a three-judge appellate panel upheld England and sent the case back to Sacramento for trial.

In their 45-page opinion, the judges acknowledged as unusual both California's Vessel Fuel Rules and the environmental problems they are intended to address.

Neither the constitution nor federal maritime law "should be used to bar a state from exercising its own police powers in order to combat these severe problems," the judges said.

Widely used low-grade bunker fuel contains an average of 25,000 parts per million of sulfur. In contrast, the diesel fuel used in trucks and other land vehicles is limited to just 15 parts per million.

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