The U.S. Court of Appeals for the Sixth Circuit (Kentucky, Michigan, Ohio, Tennessee) recently upheld Michigan's statute asserting jurisdiction and regulatory powers over all vessels (including foreign flagged ones) in pursuit of Michigan's aim to protect its waters from aquatic invasive nuisance species. Opinion in Fednav v. Chester, here.
Michigan, like California and Hawaii, has decided to not wait for federal government action to address invasive species. Michigan's statute provides:
Beginning January 1, 2007, all oceangoing vessels engaging in port operations in this state shall obtain a permit from the department. The department shall issue a permit for an oceangoing vessel only if the applicant can demonstrate that the oceangoing vessel will not discharge aquatic nuisance species or if the oceangoing vessel discharges ballast water or other waste or waste effluent, that the operator of the vessel will utilize environmentally sound technology and methods, as determined by the [Michigan Department of Environmental Quality], that can be used to prevent the discharge of aquatic nuisance species.
Mich. Comp. Laws § 324.3112(6).
Several shipping companies brought suit against the State of Michigan to invalide the statute. The shipping companies asserted that they had standing to assert claims of invalidity of Michigan's statute, that Michigan's statute was preempted by federal law, and that the statute was unconstitutional as violative of the U.S. Constitution's commerce clause. The Court found no preemption, express or implied, nor any constitutional violation dismissing the argument that because the federal government has two statutes regarding shipboard ballast waters, Michigan's law could not stand.
The seminal case in this area is U.S. v. Locke, also known as the Intertanko decision. The U.S. Supreme Court struck down Washington's regulations of oil tankers transiting its waters as being preempted by federal law. The decision's clause by clause review of the federal statute seems to lead the Sixth Circuit to its conclusion: Locke is limited to a rigid statutory analysis and not a "metaphysical one."
This case would be a good case for the U.S. Supreme Court to take on cert because the lower courts have grappled with the applicability of Locke and while the federal government has not expeditiously promulgated regulations to deal with these vexing environmental issues, several states have impinged on the federal government's constitutional turf to address the problems themselves.
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