The U.S. 9th Circuit Court of Appeals in San Francisco has ruled that California’s regulation of pollution from ships using its port is pre-empted by the Clean Air Act, and thus requires a waiver from the EPA. This is bad news for the state, since the last time it requested a waiver from EPA, the agency delayed for a long time and then denied the request – against the advice of its legal and scientific staff.
Ships arriving at the ports of Los Angeles and Long Beach are a major source of the particulates, nitrogen oxide, and sulfur that make the region’s air so unhealthy. (The ports are also responsible for a lot of truck traffic, which adds still more pollution and a further burden on local residents’ health.) The California regulation targets auxiliary diesel engines, which many ships use for onboard electrical power, used within 24 nautical miles of the ports. These engines often run on highly polluting bunker fuel, and they emit an estimated 1,400 tons a year of particulates in the LA Basin.
Attorneys for the state’s air board decided that California should go ahead with the regulation rather than requesting a waiver because the regulation only applied to old engines and was thus not an emissions standard. The Pacific Merchant Shipping Association filed suit to block enforcement of the rule, and has now won in a federal district court as well as the 9th Circuit Court of Appeals.
California now has to decide whether to appeal to the Supreme Court or pursue a waiver from EPA. In the meantime, it has stopped enforcing its rule, and can only hope that shipping companies that have already made changes to comply with it – like switching to low-sulfur fuels or using shore-side electrical power – will stick with those changes.