Alaska’s Failed Effort to Prevent Enforcement of MARPOL Annex VI in Alaskan Waters

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Alaska’s Failed Effort to Prevent Enforcement of MARPOL Annex VI in Alaskan Waters

By Andrew Thornton, Staff Contributor

A summary of Alaska’s lawsuit against the Secretary of State, the EPA, the Coast Guard, and the Department of Homeland Security over the implementation of the International Convention for the Prevention of Pollution from Ships (MARPOL) and the Act to Prevent Pollution from Ships (APPS).

In 1973, the International Maritime Organization (IMO) in London adopted the International Convention for the Prevention of Pollution from Ships (MARPOL). By the time it reached the Senate for advice and consent in 1978, MARPOL had been amended by Protocols I and II and Annexes I and II. The Senate ratified the amended MARPOL and Congress implemented it by the Act to Prevent Pollution from Ships (APPS) on October 21, 1980.

Several amendments were made to APPS after 1980. Important here, Congress implemented Annex VI on July 21, 2008, by the Maritime Pollution Prevention Act of 2008. This Act in turn gave the Secretary of the Department of Homeland Security (or of the Navy, if at wartime) and the Administrator of the EPA authority to issue regulations implementing Annex VI. EPA issued its notice of proposed rule-making soon after, on August 28, 2009.

“…require certain marine engines…to meet nitrogen oxide (NOx) emission standards…”

Broadly, EPA’s proposed rule was “part of a coordinated strategy to ensure that all ships that affect U.S. air quality meet [the] stringent NOX and fuel sulfur requirements” imposed by Annex VI. The proposed rule has two parts: First, the rule would require certain marine engines on U.S.-flagged vessels to meet nitrogen oxide (NOX) emission standards imposed by Annex VI. The rule would apply to Category 3 marine diesel engines, i.e., those which have minimum per cylinder displacement of 30 liters.  Second, for the same engines’ fuel, the rule would set a new sulfur standard if that fuel is produced or sold for use in the proposed U.S. emissions control area (ECA) and U.S. internal waters. EPA estimated dramatic health benefits from its rule: by 2030—fifteen years’ full implementation—the reform would save between $110 and $280 billion in health costs annually, and only cost $3.1 billion annually. At that time, the proposed ECA included waters off the Southeastern and Southcentral coasts of Alaska.

After receiving and responding to comments, the EPA issued its final rule on April 30, 2010. The final rule slightly differed from its proposed version. New NOX standards would still apply to new engines in 2011, but pre-2011 engines would only require an 80% reduction in NOX emissions by 2016 (instead of being rebuilt to fully meet the new NOX requirements).

Alaska objected to the procedure by which the EPA expanded the U.S. ECA to include waters off the ….coast of Alaska.”

Which brings us to Alaska’s lawsuit. On July 13, 2010, Alaska filed a complaint for declaratory relief against Hillary Clinton—then Secretary of State—the EPA, the Coast Guard, the Department of Homeland Security, and their heads. Alaska objected to the procedure by which the EPA expanded the U.S. ECA to include waters off the Southeast and Southcentral coasts of Alaska.

First, Alaska claimed that the Secretary of State improperly accepted the ECA as ultimately approved by the IMO, both under APPS’s own requirements for amendment and under the Administrative Procedure Act (APA). The court ruled for the defendants on this point, holding that the Secretary of State’s satisfaction of APPS’s own amendment standards was a nonjusticiable political question over which the court lacked subject-matter jurisdiction. And as to Alaska’s claim under the APA, the court held that the Secretary’s acceptance of the U.S. ECA was committed to agency discretion by APPS because there was no law to apply.

Alaska next contended that the Secretary of State’s acceptance of the U.S. ECA as approved by the IMO violated the Treaty Clause because it was never approved by the Senate; and it also violated the separation of powers doctrine because the APPS granted the Secretary the power to accept the ECA, a power Congress unconstitutionally yielded to the Secretary.

“…intended that…acceptance of an ECA amendment…would be effective domestic law…without further congressional action.”

The court held that because APPS specifically exempted amendments to MARPOL Annexes from the advice and consent of the Senate, while requiring advice and consent for amendments to MARPOL itself, “the Senate was aware that certain types of amendments would be approved without further Senate involvement.” Further, when the Senate approved Annex VI and Congress amended APPS to implement Annex VI, the court held that Congress had “intended that the Secretary of State’s acceptance of an ECA amendment at a future date would be effective domestic law . . . without further congressional action.” As to Alaska’s separation-of-powers argument, the court held that because APPS gave the Secretary of State the authority to accept or reject an amendment to a MARPOL Annex, Congress had not indirectly and improperly delegated that authority to the IMO, who received and approved proposed amendments.

Lastly, Alaska tried to block implementation of Annex VI as to foreign-flagged ships in the U.S. ECA because the EPA had not defined the ECA by proposed rule before its implementation. The court held that under APPS itself, Annex VI applies to vessels not just within the U.S. ECA but also within the U.S. Exclusive Economic Zone (EEZ) and navigable waters. Hence, the EPA had statutory authority to apply the U.S. ECA to foreign-flagged vessels without any rulemaking as to the scope of the ECA itself.

Alaska did not appeal the court’s decision to the Ninth Circuit, and thus ends its effort to prevent Annex VI’s implementation in Alaskan waters.

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