Fednav, Ltd. v. Chester, 07-2083.

Citation547 F.3d 607
Decision Date21 November 2008
Docket NumberNo. 07-2083.,07-2083.
PartiesFEDNAV, LIMITED; Canadian Forest Navigation Company, Limited; Nicholson Terminal and Dock Company; Shipping Federation of Canada; American Great Lakes Ports Association; Seaway Great Lakes Trade Association; United States Great Lakes Shipping Association; Baffin Investments, Limited; Canfornav, Incorporated, Plaintiffs-Appellants, v. Steven E. CHESTER, Director of the Michigan Department of Environmental Quality; Michael Cox, Attorney General for the State of Michigan, Defendants-Appellees, Michigan United Conservation Clubs; National Wildlife Federation; Natural Resources Defense Counsel, Incorporated; Alliance for the Great Lakes, Intervenors-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

ARGUED: Norman Chester Ankers, Honigman, Miller, Schwartz & Cohn, Detroit, Michigan, for Appellants. Shannon W. Fisk, Natural Resources Defense Council, Chicago, Illinois, Robert P. Reichel, Office of the Michigan Attorney General, Lansing, Michigan, for Appellees. ON BRIEF: Norman Chester Ankers, Honigman, Miller, Schwartz & Cohn, Detroit, Michigan, for Appellants. Shannon W. Fisk, Natural Resources Defense Council, Chicago, Illinois, Robert P. Reichel, Office of the Michigan Attorney General, Lansing, Michigan, Neil S. Kagan, National Wildlife Federation, Ann Arbor, Michigan, Christopher E. Tracy, Howard & Howard, Kalamazoo, Michigan, for Appellees. Noah D. Hall, Law Office, Ann Arbor, Michigan, Amy L. Kullenberg, Mashantucket, Connecticut, Robert B.

Roche, Office of the Minnesota Attorney General, St. Paul, Minnesota, for Amici Curiae.

Before: GILMAN, KETHLEDGE, and ALARCÓN, Circuit Judges.*

OPINION

KETHLEDGE, Circuit Judge.

Plaintiffs—a coalition of shipping companies, non-profit shipping associations, a port terminal and dock operator, and a port association—appeal the district court's dismissal of their constitutional challenges to the so-called Michigan Ballast Water Statute, Mich. Comp. Laws § 324.3112(6), and the regulations promulgated pursuant thereto. We hold that Plaintiffs lack standing to challenge one portion of the statute, and reject their arguments as to its remainder. We therefore affirm.

I.
A.

Congress passed the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, 16 U.S.C. § 4701 et seq. ("NANPCA"), to combat the problem of aquatic nuisance species ("ANS") in United States waters. See 16 U.S.C. § 4701(b)(1) (1994). ANS are "nonindigenous species that threaten[] the diversity or abundance of native species or the ecological stability of infested waters, or commercial, agricultural, aquacultural or recreational waters dependent on such waters." Id. § 4702(1).

In NANPCA, Congress found that "the discharge of untreated water [from] the ballast tanks of vessels ... results in unintentional introductions of" ANS. Id. § 4701(a)(1). Some oceangoing vessels take on ballast water in foreign harbors to maintain trim, draft, and stability of the vessel when not carrying a full load of cargo. Appellants' Br. at 7. This ballast water "may inadvertently contain aquatic organisms, which are then released when the ballast is discharged in another port." Id. at 8-9. In most cases, these organisms die, but in some they thrive in their new environment in the absence of natural predators. Id. In those cases the organisms "may compete with or prey upon native species of plants, fish, and wildlife, may carry diseases or parasites that affect native species, and may disrupt the aquatic environment and economy of affected near-shore areas." 16 U.S.C. § 4701(a)(2).

One such organism is the zebra mussel, which was introduced into the Great Lakes via discharged ballast water in the 1980s. Id. § 4701(3). "In June 1988, this small bivalve mollusk, native to the Black, Azov, and Caspian Seas in [E]astern Europe, was discovered on the Canadian side of Lake Saint Clair in the Great Lakes." 58 Fed.Reg. 18330, 18330 (Apr. 8, 1993). It has since spread throughout the Great Lakes. Congress estimated in 1990 that "the potential economic disruption to communities affected by the zebra mussel due to its colonization of water pipes, boat hulls and other hard surfaces" could reach $5 billion by the year 2000. 16 U.S.C. § 4701(4). Moreover, "[a]s a filter-feeding organism, [the zebra mussel] removes vast quantities of microscopic organisms from the water, the same organisms that fish larvae and young fish rely upon for their food supply." 58 Fed.Reg. at 18330.

NANPCA's purpose, therefore, was "to prevent unintentional introduction and dispersal of nonindigenous species into waters of the United States through ballast water management and other requirements." Id. § 4701(b)(1). To that end, NANPCA required the Coast Guard to "issue regulations to prevent the introduction and spread of aquatic nuisance species into the Great Lakes through the ballast water of vessels." Id. § 4711(b)(1).

The Coast Guard issued such regulations on May 10, 1993. The regulations require vessels traveling to the Great Lakes and carrying ballast water from beyond the exclusive economic zone ("EEZ")1 to employ one of three "ballast water management practices": (1) carry out an exchange of ballast water on the waters beyond the EEZ to achieve a minimum ballast water salinity level of thirty parts per thousand; (2) retain the ballast water onboard the vessel; or (3) use an alternative environmentally sound method of ballast-water management that has been approved by the Coast Guard. 33 C.F.R. § 151.1510(a) (2008).

With respect to the saltwater ballast-exchange method, the Coast Guard explained that

[c]urrently, the most practical method of helping to protect the Great Lakes from foreign organisms that may exist in discharged ballast water is the exchange of ballast water in the open ocean, beyond the continental shelf. Water in the open ocean contains organisms that are adapted to the physical, chemical, and biological conditions (such as high salinity) of the ocean. These organisms will not, or are unlikely to, survive if introduced into a freshwater system.

58 Fed.Reg. at 18330.

The Coast Guard acknowledged the existence of other possible methods, including "discharging ballast water to reception facilities ashore, heating or chemically treating ballast water, disinfecting ballast water with ultraviolet light, depriving ballast water of oxygen, installing filters, and modifying vessel design." Id. But the Coast Guard said there was, at that time, "a lack of research and practical experience on the cost, safety, effectiveness, and environmental impact of these methods." Id. The Coast Guard has not approved any alternative ballast-water-treatment methods since 1993.

On October 26, 1996, Congress reauthorized and amended NANPCA by enacting the National Invasive Species Act of 1996 ("NISA"), 16 U.S.C. § 4701 et seq. In NISA, Congress noted the continuing problem of ANS and found that "if preventative management measures are not taken nationwide to prevent and control unintentionally introduced nonindigenous aquatic species in a timely manner, further introductions and infestations of species that are as destructive as, or more destructive than, the zebra mussel ... may occur." 16 U.S.C. § 4701(a)(13). Congress also found that "resolving the problems associated with aquatic nuisance species will require the participation and cooperation of the Federal Government and State governments, and investment in the development of prevention technologies." Id. § 4701(15).

NISA directed the Coast Guard to implement voluntary national guidelines for ballast-water management in the waters of the United States. If the Coast Guard deemed compliance with the voluntary guidelines inadequate, NISA authorized the Coast Guard to convert the voluntary guidelines into mandatory regulations. 16 U.S.C. § 4711(f). The Coast Guard did precisely that between 1999 and 2004, promulgating mandatory national regulations for ballast-water management. Those national regulations did not change the 1993 Great Lakes-specific regulations, however, except that vessels equipped with ballast tanks entering the Great Lakes are now required to comply with certain recordkeeping and reporting requirements. 33 C.F.R. § 151.2041.

This case ultimately arises from the fact that the Coast Guard's ballast-water regulations contain, for lack of a better term, a loophole. To wit, none of the Coast Guard's ballast-water requirements—neither the 1993 Great-Lakes regulations nor the 2004 national regulations (except for the recordkeeping and reporting requirements)—apply to vessels that declare they have "no ballast on board," so-called "NOBOBs." See 33 C.F.R. § 151.1502 (Great Lakes regulations apply to "each vessel that carries ballast water"); 69 Fed.Reg. 44952, 44955 (July 28, 2004) ("our final rule for mandatory [ballast-water management for U.S. waters] does not address NOBOBs"). The Coast Guard explains that NOBOBs are often fully loaded with cargo, and consequently cannot safely conduct a full ballast-water exchange at sea. See 70 Fed.Reg. 51831, 51832 (August 31, 2005). Importantly, however, the Coast Guard acknowledges:

NOBOBs have the potential to carry [ANS] in their empty tanks via residual ballast water and/or accumulated sediment. Once NOBOBs enter the Great Lakes, discharge some or all of their cargo and take on ballast water, this water mixes with the residual water and sediment and if this mixed ballast water is subsequently discharged into the Great Lakes, may provide a mechanism for [ANS] to enter the Great Lakes.

Id. (emphasis added).

Recognizing this threat, the Coast Guard announced in 2004 that it "is in the process of establishing ballast-water-discharge standards and evaluating shipboard treatment technologies." 69 Fed.Reg. 44952, 44955. The Coast Guard also stated that "[b]allast water discharge standards will be the subject of future rulemaking." Id. In the...

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