Court's ruling a setback for state's air regulators

0 Comments | Oakland Tribune, Feb 29, 2008 | by Erik N Nelson

A federal appeals court agreed Wednesday that state air pollution regulators can't order ships arriving at California ports to reduce their toxic contributions to local smog.

At the beginning of 2007, the California Air Resources Board imposed emission rules for large container ships, cruise vessels and tankers that continually call at port facilities in Oakland, Los Angeles and Long Beach, which are among the busiest in the nation.

The board wanted the ships to switch their auxiliary engines, which generate onboard electric power, from dirty, sulfur-laden bunker fuel oil to low-sulfur fuel within 24 miles of California ports.

On Wednesday, however, the 9th U.S. Circuit Court of Appeals in San Francisco upheld a lower court ruling that the state air board could not supersede federal regulatory authority over the federal Clean Air Act.

To impose its own regulations on shipping, the state board would need to get the U.S. Environmental Protection Agency to grant a waiver of federal authority.

"We're pleased that the 9th Circuit Court reaffirmed that the establishment of these emissions standards should be made pursuant to the Clean Air Act," said John Berg, vice president of the Pacific Marine Shipping Association, a shipping industry group that sued the air board to stop its regulatory efforts.

The association doesn't object to control of ship emissions, Berg said. It filed the lawsuit to prevent the state from imposing a "de- facto national standard," because ships calling in California would need to be outfitted the same way at ports in other states.

The state air board's attorneys are now reviewing what to do next, said board spokeswoman Gennet Paauwe.

Although she wouldn't comment on a likely next step, Paauwe said the board's options include appealing to the U.S. Supreme Court or requesting a federal waiver from the EPA.

"It's a temporary setback," she said of the appeal ruling that followed the state's efforts to curb all sources of diesel exhaust emissions, which contribute 70 percent of Californians' daily toxic exposure. The air board also will continue backing a federal bill to regulate ship emissions, introduced by U.S. Sen. Barbara Boxer of California, and international emissions standards being considered by the International Maritime Organization, an arm of the United Nations.

Ship emissions put California's often smog-shrouded cities in a particular bind where federal regulations are concerned, said Sarah Burt, an attorney with nonprofit environmental law firm Earth Justice. The firm is suing the EPA to force it to regulate nitrogen oxides and sulfur oxides from shipping, and petitioning the agency to regulate greenhouse gases from ships.

The city of Santa Barbara, for example, could be sanctioned by the EPA for failing to attain Clean Air Act standards, she said.

"Even if Santa Barbara reduced all its other (pollution) sources to zero, they would still be in nonattainment," Burt said, "because so much of this pollution is coming from ships in their waters."

The court's decision was no surprise, Burt said, but it did "drive home the need for EPA to take action on these types of ships."

"I don't think that we would at all disagree," said Matt Haber, deputy director of EPA's Region 9 Air Division, which covers western states. The agency is negotiating with the International Maritime Organization to establish global air emission standards even stronger than those the California board has so far failed to impose, he said.

As for the Santa Barbara syndrome, "there's definitely some truth to that," but "if the treaty goes into effect, this would do what those agencies and groups want," Haber said. "Pretty much everybody would be thrilled if this gets adopted."

Staff writer Francine Brevetti contributed to this story. Contact Erik Nelson at enelson@bayareanewsgroup.com or 510-208-6410.