Informing the discussion on Hawaii's attempt to regulate fuel types used by ships visiting Kauai, posted here, the Ninth Circuit issued a decision (summary here) yesterday involving California's attempts to regulate ship's fuels.
In Pacific Merchant Shipping Assn. v. Goldstene, the California Air Resources Board promulgated and enforced "Marine Vessel Rules" purporting to regulate particulate matter, nitrogen oxide, and sulfur oxide from ocean-going vessels on all waters within 24 nautical miles of the coast. The Pacific Merchant Shipping Association challenged the rules arguing that they were preempted by the federal government's Clean Air Act and Submerged Lands Act. The trial court found that the Marine Vessel Rules were preempted by the Clean Air Act and granted summary judgment to the Association. Because of its holding on the Clean Air Act, the trial court did not decide the Submerged Lands Act issue (the State of California only extends three nautical miles from its shore, these rules extend beyond the territory of the State).
The Ninth Circuit found that these Rules were preempted by the Clean Air Act. The Clean Air Act allows states to regulate emissions by obtaining authorization from the federal Environmental Protection Agency. California argued that the Rules regulated fuels and not emissions, thus the Rules were not preempted by the Clean Air Act. The Ninth Circuit said, "the plain language of the Rules regulates emissions, not fuel." Finding these rules to be "emissions standards" under the Clean Air Act, the Court held that the Clean Air Act "preempts the Marine Vessel Rules and requires California to obtain EPA authorization prior to enforcement because the Rules are 'emissions standards' that require that engines 'not emit more than a certain amount of a given pollutant.'" The Ninth Circuit, too, did not reach the Submerged Lands Act issue.
The proposed bill in Hawaii's Legislature goes out five nautical miles (Submerged Lands Act problem) and would regulate "emissions".
