Court overturns injunction, allows Calif. to enforce emission regs

Court overturns injunction, allows Calif. to enforce emission regs A federal court panel Tuesday rescinded an earlier state court injunction and allowed California air quality regulators to resume enforcing emission regulations on oceangoing marine vessels calling in California waters.
   The nearly two-month-old injunction prevented the California Air Resources Board from enforcing the Auxiliary Engine Rules the air agency adopted in 2005 and put in place at the start of this year. Marine vessels use their auxiliary 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 earlier this year in California District Court, charging that CARB 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 that 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 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 a 2-1 vote, the three-member Ninth Circuit panel on Tuesday granted CARB's motion to remove the injunction, allowing CARB to enforce the regulations until its appeal date.
   The Ninth Circuit Court's brief majority opinion on the CARB motion, accompanied by a rare and lengthy dissenting opinion, found that the legal issues raised in the original case were 'difficult and significant,' but decided in favor of the public interest in granting CARB's motion to remove the injunction.
   The two affirming judges wrote that CARB 'has estimated that exposure to pollution from oceangoing vessels causes 31 premature deaths and 830 asthma attacks per year and that [these] regulations will have the effect of reducing emissions by 70 percent.'
   The judges said despite that the 'irreparable harm claimed by [CARB] is nebulous at best,' it was more reasonable to err on the side of potential public health benefits and remove the injunction, given that a formal appeals decision on the original case is only months away.
   The two jurists also noted that their decision was in the best interest of the shipping industry.
   'No stay has ever been sought by the shipping interests,' the judges wrote. 'We would be upsetting the status quo if we held that the regulations could not be enforced until our court rules on the merits. To minimize harm to the shipping industry we have expedited the appeal.'
   The judges went on to detail a new schedule for the overall appeals case, setting the date for filing briefs as Dec. 30 and consideration by the court for the second week of February 2008.
   In the dissenting opinion, Ninth Circuit Judge J. Ikuta said he would deny the CARB motion because the district court 'correctly applied our standards for stays pending appeals.'
   He also reiterated the district court's finding that took exception to the claims by CARB lawyers of potential health impacts from vessel emissions.
   'Based on the review of the voluminous conflicting information submitted by the parties,' wrote Ikuta, 'the district court stated that 'it cannot conclude that any number of deaths, asthma attacks or lost work days will be proximately caused by the additional air pollution created by oceangoing vessels operating in full compliance with the [federal] Clean Air Act and all regulations promulgated by the EPA.' '
   Ikuta concurred with the findings of the district court, noting in his dissension that despite the lack of conclusive evidence pointing to health impacts as claimed by CARB, there were definite financial impacts to the shipping industry that could be proved.
   'The district court,' wrote Ikuta, 'determined that PMSA would incur additional annual expenses of $37.88 million to comply with CARB's additional regulations. The district court concluded that because [CARB's] harm is speculative, while PMSA's harm is concrete, the district court 'cannot fathom what possible circumstances it could in good conscience grant [CARB's] stay.' '
   Ikuta agreed with the district court ruling and said he would rule the same. He added that the Ninth Circuit does not have any rule entitling a government defendant claiming its regulations provide health benefits to a stay pending appeal.
   CARB, concluded Ikuta, has 'not shown a high degree of likely success on the merits [of their defense], nor that the balance of harms tips decidedly in their favor.'
   While not originally named by the PMSA filing, the National Resources Defense Council, the Coalition for Clean Air, the South Coast Air Quality Management District and the City of Long Beach asked to be included as co-defendants after the suit was filed, which the state district court judge allowed.
   The Southern California ports of Long Beach and Los Angeles are still considering implementing tariff changes that would enforce similar fuel rules affecting vessels coming within 40 nautical miles of the ports. Neither the Ninth Circuit nor the state district court ruled on the issue of how far out to sea state authority extends.
   Since the injunction was ordered in August, the PMSA has 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.