Ports, shipping representatives mull over a further appeal
By JULIE GEDEON
February 11, 2010
A New York appeals court has upheld the state’s regulations obliging ships to replace their ballast water at least 50 nautical miles (92.6 kilometres) offshore before entering its waters.
In a five-page ruling, the Appellate Division concluded that the New York regulations were not unconstitutional, illegal nor arbitrary, as alleged by a coalition of shipping industry representatives and port officials. The court noted the explicit right of individual states under the (U.S.) Clean Water Act to add conditions to federal vessel discharge permits.
New York officials and environmental groups hailed the ruling as a huge victory for states to protect their waters. “These rules don’t just protect the ecosystem. They help defend multibillion-dollar tourism, fishing and recreational boating industries in New York and throughout the Great Lakes,” said Thorn Cmar, a Natural Resources Defense Council attorney. “By putting up these rules as a strong first line of defence, the state has joined Michigan and California as leaders in the fight to protect our waterways.”
Meanwhile, the petitioners are contemplating whether to appeal. They include the Port of Oswego, the Port of Albany, Polska Zegluga Morska (Polsteam), Federal Marine Terminals, Inc., Canfornav Inc., the American Great Lakes Ports Association, the Chamber of Marine Commerce and the Canadian Shipowners Association (CSA).
“From what I read, it’s a very short ruling that discusses some of the legal intricacies of the process that were followed but doesn’t address the substance of our appeal,” said CSA president Bruce Bowie. “It doesn’t appear to deal with most of the arguments we put forward.”
A panel of four judges concluded that state conservation officials had supplied ample scientific evidence and expert opinion to support their concern about the need to protect New York waters against the further introduction of aquatic invasive species (AIS) via ballast water.
The court rejected the petitioners’ assertions that broader water quality standards – namely, the bi-national requirement for all ships entering the St. Lawrence Seaway to first do a mid-ocean ballast-water exchange – are sufficient.
It also concluded that the “coalition of maritime trade interests” lacked standing to challenge New York’s environmental quality review because those interests “fail to allege anything other than economic harm to themselves or speculative ecological injury to the general public.”
Marc Smith, a state policy manager with the (U.S.) National Wildlife Federation, said the decision reaffirms that AIS are damaging the Great Lakes’ economy, quality and way of life. “This ruling sends a strong message to other Great Lakes states and the EPA (Environmental Protection Agency), after 30 years of inaction, to finally slam the door on invasive species by requiring the shipping industry to install effective protections against invasive species.”
Mandatory offshore ballast exchanges have already come into effect under the New York law. The regulations further require ships to be equipped with ballast-water treatment systems by 2012 and to have systems with even higher standards on vessels that are built in 2013 or later.
The judges remained “unpersuaded” by the contention that the additional state requirements violate the U.S. Constitution’s Commerce Clause (which gives the U.S. Congress the power to regulate commerce among states and with other nations), again citing the clear right of states to add conditions under the Clean Water Act.
While the court rejected arguments that the regulations violate U.S. foreign relations power and the Boundary Treaty of 1909, it did not outline why. The lack of explanation is among the reasons why Mr. Bowie is disappointed in the ruling.
“One of our points was that this is a ballast water discharge regulation and yet New York is applying it to all the vessels going through the Seaway locks whether or not they’re discharging ballast,” he said. “So, effectively, what they’re doing is applying those regulations to Canadian traffic going, say, from Montreal to Thunder Bay with no intention of discharging ballast in New York waters.”