Shipping Industry Ballast Water Coalition Files Remedy Brief

Intertanko has filed a remedy brief in the North California District Court case of Northwest Environmental Advocates against the Environmental Protection Agency (EPA) as part of a Shipping Industry Ballast Water Coalition, which consists of INTERTANKO, the American Waterways Operators, Chamber of Shipping of America, International Council of Cruise Lines, Lake Carriers’ Association, and the World Shipping Council. This brief, whose four main arguments are detailed below, sets out the ‘remedy’ that should be imposed as a result of the Court ruling that the EPA’s long-standing exclusion from Clean Water Act (CWA) requirements of operational discharges from ships is not authorised by the CWA and is therefore invalid. Background.

In 1973, shortly after the U.S. enacted the CWA, the EPA issued a regulation excluding, from CWA permit requirements, “any discharge of sewage from vessels, effluent from properly functioning marine engines, laundry, shower, and galley sink wastes, or any other discharge incidental to the normal operation of a vessel” (40 C.F.R. § 122.3(a)). For thirty years, this exclusion went unchallenged, while the federal government regulated ballast water discharges under other laws, such as the National Invasive Species Act. In December, 2003, two environmental advocacy groups, Northwest Environmental Advocates and San Francisco Baykeeper, filed a lawsuit in the United States District Court for the Northern District of California, against EPA, charging that the long-standing exclusion was not authorised by the CWA; several Great Lakes states later joined the suit as plaintiffs. On March 30, 2005, the District Court issued an order granting the environmental groups’ motion for summary judgment; in essence, the Court agreed with the argument that the exclusion was not authorised by the CWA. The Court ruled that the EPA had acted outside its statutory authority in exempting these discharges, declared that the exclusion is invalid, and asked the parties to file briefs explaining what remedy should be imposed. After the Court issued its March 30 Order, the Shipping Industry Ballast Water Coalition was granted the right to intervene as a defendant in order to defend the maritime industry’s interests in the “remedy” phase of the case.

On September 6, the environmental groups and the States filed their briefs on the appropriate remedy. The environmental groups proposed that the Court give EPA 90 days to declare whether or not it intends to replace the exclusion with a new permitting system. If EPA declares that it does not intend to do so, the exclusion would be repealed 270 days after the Court’s final order. If, on the other hand, EPA declares that it does intend to replace the exclusion with a new permitting system, the exclusion would be repealed 520 days after the Court’s final order (by which time EPA ostensibly would have developed and promulgated the new permitting system). The states, for their part, have proposed that the Court establish interim regulations, based on the current Coast Guard regulations, by April 1, 2006, and final regulations, establishing a new permitting system, by October 1, 2007. The remedy brief.

On October 20, the Coalition responded by filing its remedy brief. The brief makes four main arguments: • Congress and the executive have implemented intensive and extensive ballast water discharge control measures, which the maritime industry has long relied upon and complied with. The National Aquatic Nuisance Pollution Control Act, as amended by the National Invasive Species Act of 1990, designated the U.S. Coast Guard as the lead federal agency to address the problems surrounding the introduction of Aquatic Nuisance Species (ANS) through ballast water discharges. Acting on its own initiative and in concert with other federal and state agencies and cooperative arrangements, the Coast Guard has mandated a system of open-ocean ballast water exchange, or in some cases salt water flushing of ballast tanks, for all vessels, including those not traveling beyond the 200-mile Exclusive Economic Zone. • EPA should be afforded maximum discretion. The Court should not precipitate a rush to regulate under the CWA that would prevent EPA from accounting for the complex web of federal regulation that already is in place. If the Court must hold EPA to a deadline—as advocated by the Plaintiffs and the States—then the deadline should be consistent with the timetables adopted by the International Maritime Organization’s International Convention for the Control and Management of Ships’ Ballast Water and Sediments, which would require the installation of treatment technology on new vessels by 2009, and the retrofit of existing vessels by 2014 or 2016, depending on the size of the vessel. • Any specific remedy should be stayed pending appeal. There is a significant likelihood that the Court’s Order will be reversed on appeal, because the Court erred in its March 30 Order, such as by failing to take adequate account of the many ways that Congress has acquiesced in the EPA’s exemption. In addition, the Coalition could be significantly harmed by a precipitous rulemaking, but the environment—already protected by an extensive web of Coast Guard regulations and other federal laws—would suffer no harm from a stay. • The Court should modify its March 30 Order to clarify that it is limited to ballast water discharges only. The Court’s March 30 Order could be read broadly to invalidate the application of the exclusion not only to ballast water, but to all other discharges that occur in the ordinary course of vessel operations. However, the environmental groups and the States claimed injury only from discharges of ballast water. Accordingly, the Coalition proposed that the Court either clarify that its Order applies only to ballast water or, alternatively, use its equitable discretion to order injunctive relief as to ballast water only.