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Pacific Merchant Shipping Association v. Goldstene

June 30, 2009

PACIFIC MERCHANT SHIPPING ASSOCIATION ("PMSA"), A CALIFORNIA MUTUAL BENEFIT CORPORATION, PLAINTIFF,
v.
JAMES GOLDSTENE, IN HIS OFFICIAL CAPACITY AS EXECUTIVE OFFICER OF THE CALIFORNIA AIR RESOURCES BOARD, DEFENDANT, NATURAL RESOURCES DEFENSE COUNCIL, INC., COALITION FOR CLEAN AIR, INC., AND SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, DEFENDANTS-INTERVENORS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Through the present action, Plaintiff Pacific Merchant Shipping Association ("PMSA" or "Plaintiff") seeks to prevent implementation of regulations recently adopted by the California Air Resources Board ("CARB"), and scheduled to go into effect on July 1, 2009.

Plaintiff sues Defendant James Goldstene, as CARB's Executive Director, on grounds that the regulations in question, which seek to specify fuel requirements for seagoing vessels traveling within twenty-four nautical miles of the California coast, are unconstitutional and contrary to federal law. In now moving for summary judgment, Plaintiff seeks declaratory and injunctive relief that the regulations are preempted by the federal Submerged Lands Act, 43 U.S.C. §§ 1301, et seq. CARB opposes Plaintiff's Motion. In addition, the Natural Resources Defense Council, Inc. ("NRDC"), the Coalition for Clean Air, Inc. ("CCA") and the South Coast Air Quality Management District ("SCAQMD"), who have intervened in support of CARB, join in opposing Plaintiff's Motion.

For the reasons set forth below, Plaintiff's Motion will be denied.

BACKGROUND

On April 16, 2009, the CARB regulations at issue in this matter were transmitted to the California Secretary of State for filing pursuant to California Government Code § 11349.3.

Under the terms of the regulations, enforcement will commence on July 1, 2009.

The express purpose of the regulations (hereinafter referred collectively as the "Vessel Fuel Rules" or the "Rules") is to reduce air pollutants affecting the State of California by requiring ocean-going vessels*fn1 to use cleaner marine fuels. Under the Rules, vessel operators are required to use cleaner marine fuels in diesel and diesel-electric engines, main propulsion engines, and auxiliary boilers on vessels operating within twenty-four nautical miles off the California coastline. Cal. Code Regs. tit. 13, § 2292.2(a); tit. 17, § 93118.2(a). Implementation is contemplated in two phases. Initially, beginning in July 2009, vehicle operators must use either marine gas oil (which typically averages 0.3% sulfur and is capped at 1.5%), or marine diesel oil with a sulfur limit of 0.5% or less. Thereafter, by January 2012, both fuels must not exceed 0.1% sulfur. Id. Failure to comply with the regulations subjects vessel owners and operators penalties, injunctive relief and other remedies as provided under California law. Id. at § 2299.2(f)(1); § 93118.2(f)(1).

According to the State of California, ocean-going vessels, which typically utilize large diesel engines, are a significant source of air pollution in California, due in part to their widespread use of low-grade bunker fuel. Bunker fuel consists primarily of thick, tar-like residual fuel formulated from the residues remaining after primary fuel distillation.

Decl. Of Paul Milkey in Support of CARB's Opp'n to Mot. for Summ. J., ¶ 16. As a result of its viscous nature, bunker fuel has to be heated before it can be pumped and injected into an engine for combustion. NRDC/CCA Undisputed Fact ("UF") No. 5. Residual fuel contains an average of about 25,000 parts per million (ppm) of sulfur, as opposed to diesel fuel for trucks and other motor vehicles, which is limited to 15 ppm sulfur. Id. at No. 6. The proposed Vehicle Fuel Rules mandate that ocean-going vessels coming into California ports use distillate fuel with a maximum sulfur level falling between these two extremes.

2006 data generated by CARB suggests that ocean-going vessels traveling within twenty-four nautical miles of California's coast generate approximately 15 tons per day of diesel particulate matter ("PM"), 157 tons per day of nitrogen oxides ("NOx"), and 117 tons daily of sulfur oxides ("SOx"). CARB UF No. 1. This makes SOx emissions from such vessels the single largest source of SOx emissions in the state, responsible for some forty percent of all SOx emitted. Milkey Decl., ¶ 13. Importantly, too, both NOx and SOx are precursors of PM2.5, or fine particulate matter pollution. SCAQMD UF No. 17. The PM emissions from ocean-going vessels are also significant and have been estimated as equivalent on a daily basis to approximately 150,000 big rig trucks traveling 125 miles per day. Milkey Decl., ¶ 13.

Long Beach and Los Angeles ports collectively constitute the largest port in the United States. Some forty percent of all national imports are estimated to move though those two California ports.

See Decl. of Dr. Elaine Chang in Support of SQAMD's Opp. to Mot. for Summ. J., ¶ 27. Research shows that pollutants discharged offshore migrate to the California coast. Vehicle emissions are likely to be transported onshore from even beyond the twenty-four nautical mile boundary used in the Rules. SCAQMD UF No. 8.

PMSA does not dispute that implementation of the Vessel Fuel Rules, which were adopted following a lengthy process which included consultation with both the public, state and local agencies, and the federal government, is estimated to reduce PM emission by 13 tons per day, NOx by 10 tons per day, and SOx by 109 tons per day. See CARB UF No. 6. For sulfur oxides, that reduction amounts to some ninety percent fewer estimated emissions upon full implementation of the Rules. SCAQMD UF No. 30 PMSA does not contend that compliance with the new Rules is technically impossible or even difficult. NRDC UF No. 22. Only costs are cited. It nonetheless appears that compliance would increase costs of imported goods by an insignificant amount. See NRDC UF No. 23.

From a public health and safety perspective, it is undisputed that twenty-seven million Californians, or eighty percent of the population, are exposed to ocean-going emissions that increase cancer risks. CARB UF No. 4, SCAQMD UF No. 41. Diesel emissions are known to cause premature death, cancer, aggravated asthma and other respiratory illnesses, and increased risk of heart disease. CARB UF Nos. 10, 11.

The problem particularly prevalent in the Southern California area encompassed by the South Coast Air Basin, where over eighty percent of the population is exposed to PM2.5 levels exceeding federal standards. SCAQMD UF No. 22. In fact, CARB has calculated that over fifty percent of the total population-weighted exposure to PM2.5 levels exceeding federal standards in the entire nation occurs in the South Coast Air Basin, although the Basin has only five percent of the nation's population. Id. at No. 23. Not surprisingly, the South Coast Air Basin has consequently been unable to attain national air quality standards.

CARB estimates that directly-emitted diesel particulate matter from ocean-going vehicles causes about 300 premature death statewide every year, not including cancer effects. SCAQMD UF No. 45. In contrast, research indicates that implementation of the Vessel Fuel Rules between 2009 and 2015 alone will prevent some 3,500 premature deaths, nearly 100,000 asthma attacks, and significantly reduce cancer risk. NRDC/CCA UF No. 14.

Plaintiff PMSA is an organization whose members own and operate U.S. and foreign-flagged ocean-going vessels subject to the proposed new Vessel Fuel Rules. As indicated above, PMSA now moves for summary judgment and seeks a judicial determination that the Rules at issue are preempted by the SLA, or are otherwise unlawful. PMSA further requests that a permanent injunction be issued ...


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