Fednav et al., v. Steven E. Chester (MI DEQ)

Nov 21: In the U.S. Court of Appeals, Sixth Circuit, Case No. 07-2083. In the case of Fednav et al., v. Steven E. Chester, et al, the Appeals Court unanimously upheld the U.S. District Court, Eastern District, Southern Division decision of Judge John Feikens [Case No. 07-11116, See WIMS 8/16/07] that ruled that Michigan's Ballast Water Statute, Mich. Comp. Laws § 324.3112(6), is constitutional. The case challenging the Michigan law was brought by nine shipping companies and associations. Defendants in the case were Michigan Department of Environmental Quality (MDEQ) Director Steven Chester and Michigan Attorney General Mike Cox. Four environmental and conservation organizations intervened in the case supporting the State's position including: Michigan United Conservation Clubs (MUCC); Alliance for the Great Lakes (Alliance); National Wildlife Federation (NWF); and Natural Resources Defense Council (NRDC).

In summary, the Appeals Court said, "We hold that Plaintiffs lack standing to challenge one portion of the statute, and reject their arguments as to its remainder. We therefore affirm." The Appeals Court summarized the Federal regulations that exist and why Michigan felt compelled to adopt its own, separate law. The Court said, ". . . to summarize, the Coast Guard’s ballast-water regulations applicable to the Great Lakes have remained essentially unchanged since 1993. Vessels entering the Great Lakes carrying ballast water from outside the EEZ [exclusive economic zone] must either conduct a mid-ocean ballast-water exchange before discharging ballast water into the Great Lakes, or retain their ballast water. NOBOB [No Ballast On Board] vessels are essentially unregulated with respect to their ballast-water practices. They are thus free to take on ballast water in the Great Lakes, mix it with any sediment or residual water in their tanks, and then discharge the mixture into the Great Lakes."

The Appeals Court explains the argument of the Plaintiffs saying, "Each of these Plaintiffs seeks, in this Court at least, to challenge two distinct provisions of the Michigan Ballast Water Statute. First, they challenge the statute’s requirement that all 'oceangoing vessels engaging in port operations in' Michigan obtain a permit (the 'permit requirement'). Mich. Comp. Laws § 324.3112(6). Second, they challenge the requirement -- applicable only to oceangoing vessels that discharge ballast water in Michigan -- that they employ a treatment system approved by the MDEQ as a safe and effective means of preventing the discharge of ANS (the 'treatment requirement')."

Plaintiffs include four shipping companies: Fednav, Limited, Canadian Forest Navigation Company, Limited, Baffin Investments, Limited, and Canfornav, Incorporated (the “Shipping Companies”). They include three shipping associations: the Shipping Federation of Canada, the Seaway Great Lakes Trade Association, and the United States Great Lakes Shipping Association (the “Shipping Associations”). They also include a port terminal, Nicholson Terminal and Dock Company (“Nicholson”), and a port association, The American Great Lakes Ports Association (the “Ports Association”).

The Appeals Court then considers whether each of the Plaintiffs has standing to challenge each of these requirements, i.e. the permit requirement and the treatment requirement. The Appeals Court determines that the Shipping Companies and each of the Shipping Associations has standing to challenge the permit requirement, but Nicholson and the Ports Association do not.

On the treatment requirement, the Court says, "'virtually all' of Plaintiffs’ ships do not discharge ballast water in Michigan. And to the extent that Plaintiffs do not so discharge, they are not even subject to the treatment requirement, much less harmed by it. . . And none of them have remotely alleged that they have taken any action, much less an injurious one, in compliance with the treatment requirement. The complaint is conspicuously silent on that point. Second, and more fundamentally, we simply will not strain to construe the complaint to say by negative implication what it very simply could have said directly. . . We instead hold fast to the 'longsettled principle that standing cannot be inferred argumentatively from averments in the pleadings, but rather must affirmatively appear in the record.'”

Thus the Appeals Court determines that, "The only claims over which we have jurisdiction, then, are those of the Shipping Companies and the Shipping Associations (hereinafter, 'Plaintiffs') with respect to the permit requirement." The Appeals Court conducts a rigorous analysis of preemption issues and determines that, ". . . we know that Congress contemplated ANS [aquatic nuisance species] prevention measures 'in the Great Lakes region that are not conducted pursuant to this chapter.' Id. § 4723(a)(1)(D) (emphasis added). That leaves only the question whether the reference to ANS prevention measures 'not conducted pursuant to this chapter' includes measures conducted by the states. For several reasons, we believe that it does. . . The permit requirement does not conflict with NISA [National Invasive Species Act of 1996] or the Coast Guard’s regulations promulgated pursuant to it. The requirement therefore is not preempted by federal law."

The Court also rejects a claim by Plaintiffs that the Michigan law violates the so-called “dormant” Commerce Clause by burdening interstate commerce and a "due process" claim and concludes, "Michigan, for undisputedly legitimate reasons, has enacted legislation of a type expressly contemplated by Congress. We have no basis to disrupt the result of those democratic processes. The August 15, 2007 order of the district court is affirmed."

Alliance vice president for policy, Joel Brammeier, praised the court's ruling saying, “We’re pleased with this confirmation of the states’ authority to protect the Great Lakes from invaders. While the federal government spent 2008 sitting on its hands, this decision reinforces the only real line of defense we have right now -- state action to shield the Great Lakes from these biological threats.”

Access the Appeals Court decision (click here). Access the complete 32-page district court opinion (click here). Access MDEQ's Ballast Water Reporting website for extensive information (click here). Access legislative details for PA 33 of 2005 (click here). Access a release from the Alliance (click here). Access various media reports on the decision (click here).

Northwest Environmental Advocates v. U.S. EPA

Jul 23: In the U.S. Court of Appeals, Ninth Circuit, Case Nos. 03-74795, 06-17187, 06-17188. Plaintiffs in this case are Northwest Environmental Advocates, San Francisco Baykeeper, and The Ocean Conservancy. Plaintiffs-intervenors are the States of Illinois, Michigan, Minnesota, New York, Pennsylvania, and Wisconsin. Plaintiffs and plaintiffs-intervenors challenge a regulation originally promulgated by U.S. EPA in 1973 exempting certain marine discharges from the permitting scheme of sections 301(a) and 402 of the Clean Water Act (CWA). The Shipping Industry Ballast Water Coalition was an intervenor on behalf of EPA.

That regulation, 40 C.F.R. § 122.3(a), provides that the following vessel discharges into the navigable waters of the United States do not require permits: discharge of effluent from properly functioning marine engines; discharge of laundry, shower, and galley sink wastes from vessels; and any other discharge incidental to the normal operation of a vessel, including the discharge of ballast water. The district court concluded that EPA had exceeded its authority under the CWA in exempting these discharges from permitting requirements and vacated § 122.3(a), effective September 30, 2008 [See WIMS 9/19/06]. The Appeals Court affirm the decision of the district court.

The Ninth Circuit notes in its decision, "The district court’s order requires the EPA to perform a substantial task -- to bring the discharges previously exempted by § 122.3(a) within the permitting process of the CWA. Neither the district court nor this court underestimates the magnitude of the task. . .

"The EPA informed this court at oral argument that it has been proceeding in accordance with the district court’s order. We anticipate that in formulating a new regulation to replace § 122.3(a) the EPA will take advantage of the flexibility of the NPDES permitting process. For example, we take judicial notice of the fact that, in its request for comments, the EPA has indicated that “use of general permit(s) would appear to be an attractive possibility.” Development of [NPDES] Permits for Discharges Incidental to the Normal Operation of Vessels, 72 Fed. Reg. 34,241, 34,247 (June 21, 2007).

"On July 11, 2008, the Department of Justice informed us by letter that on June 17, 2008, the EPA published in the Federal Register draft “General Permits for Discharges Incidental to the Normal Operation of a Vessel,” and that the public comment period on the draft is scheduled to close on August 1. See 73 Fed. Reg. 34,296 (June 17, 2008). The letter warns that a final version may not be ready by the September 30, 2008, deadline established by the district court, but the letter stops short of a request to extend the deadline. If the government chooses to request an extension of the deadline, that request should be addressed to the district court.

The Healing Our Waters-Great Lakes (HOW) Coalition issued a statement on the decision saying, “We applaud the court for upholding Clean Water Act’s jurisdiction over the release of ballast water discharges into the Great Lakes and other U.S. waters. Unfortunately, the EPA has put forward a weak permit that will not fully protect the Great Lakes or other U.S. waters from the threat of aquatic invasive species. Congress has now, at its disposal, a strong bill that contains the national protections that people, businesses and cities have been seeking for years. It’s time that Congress act now to provide the millions of people who rely on the Great Lakes and our nation’s other great waters with the security of knowing that we have finally slammed the door on invasive species introduced by ballast water. We urge federal leaders to act now to protect our lakes, our public health, our economy and our way of life. Delay will only make the problem worse and the solution more costly.”

The decision comes during a flurry of action on ballast water and vessel discharge regulatory activity. The House has approved and the Senate is about to vote on the Coast Guard Authorization Act (H.R. 2830) which would require ocean vessels coming to any U.S. port to install treatment technology to clean their ballast water by as early as next year [See WIMS 7/16/08]. Further, EPA has proposed its Vessel General Permit (VGP) for All Commercial Vessels and Large Recreational Vessels (79 feet or longer) incorporates the Coast Guard’s mandatory ballast water management and exchange standards and supplemental ballast water requirements for vessels that carry ballast water.

Access the complete 39-page opinion (click here). Access the statement from HOW (click here). Access legislative details for H.R. 2830 (click here). Access the U.S. EPA’s draft general permits and pertinent information about the permits (click here).