Wednesday, November 26th, 2008

Permit requirement of MI ballast water statute is not pre-empted by federal law or does not violate the United States Constitution.

The balkanized approach to regulating ballast water discharges in U.S. waters will continue, so says the US Court of Appeals for the Sixth Circuit, which upheld the permit requirement of the Michigan Ballast Water Statute. Challenged by ship owners, shipping associations, a terminal, and port association, it was asserted that the permit requirement and treatment system requirement were pre-empted by federal law and violated the United States Constitution. But, in the absence of a firm federal standard – one which has been promised but has yet to appear – by the U.S. Coast Guard, Michigan went ahead and addressed the matter in a local fashion.

The domestic effort to eradicate waterborne invasive species and prevent the introduction of still others has been ongoing here and overseas for more than ten years. Unfortunately, the broader effort has come to be characterized by its lack of central coordination and corresponding lack of results. Today, we have competing protocols from places such as California, Michigan, the IMO, the EPA and a myriad of other places.

Ultimately, the standard for testing, certification of equipment and the ballast water handling protocols of the future will have to go through the Coast Guard. The Coast Guard’s rulemaking effort can nominally be measured through their progress their Shipboard Technology Evaluation Program (STEP), which (a) helps technology developers test their systems and incentivizes ship operators to install equipment without fear that the equipment will be declared inadequate down the road when and if a standard is defined, and (b) provides the Coast Guard and the general public with high-quality information and data about how the systems work and how well they achieve the desired results. Commercial systems are already receiving program approvals.

In the end, getting this done on a national basis will be difficult – if not impossible – especially without setting the standard high enough to satisfy key coastal states and also giving them the right to impose higher standards if they want. – MarEx

Download the Case Information (Fednav, Limited v. Chester, No.07-2083 / 6th Cir., November 21, 2008) by clicking HERE.