State v. Kerry

• Decision Date: 17 September 2013
• Docket Number: Case No. 3:12–cv–00142–SLG.
• Parties: State of ALASKA et al., Plaintiffs, v. John F. KERRY et al., Defendants.
• Court: U.S. District Court — District of Alaska

972 F.Supp.2d 1111

State of ALASKA et al., Plaintiffs,

v.John F. KERRY et al., Defendants.

Case No. 3:12–cv–00142–SLG.

United States District Court,

D. Alaska.

Sept. 17, 2013.

Seth M. Beausang, State of Alaska, Department of Law, Anchorage, AK, Stephen M. Rummage, Robert J. Maguire, Davis Wright Tremaine LLP, Seattle, WA, for Plaintiffs.

Gary M. Guarino, U.S. Attorney's Office, Anchorage, AK, Kate R. Bowers, U.S. Department of Justice, Washington, DC, Mark A. Nitczynski, U.S. Department of Justice, Denver, CO, for Defendants.

ORDER RE ALL PENDING MOTIONS

SHARON L. GLEASON, District Judge.

INTRODUCTION

The State of Alaska, later joined by the Resource Development Council for Alaska as a plaintiff-intervenor, initiated this action to challenge the federal enforcement of low-sulfur fuel requirements for marine vessels operating in certain Alaskan coastal waters.

The low-sulfur requirements were implemented pursuant to the United States' obligations as a party country to the International Convention for the Prevention of Pollution from Ships, known as MARPOL. Annex VI of MARPOL designates certain emission control areas (“ECAs”) in which sulfur, nitrogen, and other vessel emissionsare regulated more strictly than in other areas. In April 2009, the United States and Canada jointly proposed amending MARPOL to include a North American ECA, which includes the Southeast and Southcentral coasts of Alaska. The ECA amendment was adopted and became part of MARPOL in March 2010. The Secretary of State subsequently accepted the amendment for the United States on August 1, 2011.

One year later, on August 1, 2012, the Environmental Protection Agency (“EPA”) and the U.S. Coast Guard began jointly enforcing low-sulfur vessel fuel requirements in the North American ECA. As of that date, marine vessels within the North American ECA were required to use fuel with a sulfur content that does not exceed 10,000 parts per million (“ppm”). Beginning in 2015, marine vessels within the North American ECA will be required to use fuel with a sulfur content that does not exceed 1,000 ppm.¹

Currently pending before the Court are the State's Motion for Preliminary Injunction and two motions to dismiss filed by the Federal Defendants. For the reasons discussed below, the Court grants the motions to dismiss and denies the motion for preliminary injunctive relief.

FACTUAL AND PROCEDURAL BACKGROUND

I. MARPOL.

MARPOL is a convention of the International Maritime Organization (“IMO”), a specialized United Nations agency.² MARPOL was adopted in 1973 and amended in 1978.³ The convention's purpose is to reduce marine pollution by ships.⁴

MARPOL currently contains six annexes, each of which addresses a different type of marine pollution.⁵ Annex VI, the annex implicated in this litigation, addresses air pollution.⁶ It was adopted by the IMO in 1997.

Annex VI designates ECAs, a term which it defines as:

an area where the adoption of special mandatory measures for emissions from ships is required to prevent, reduce and control air pollution from NOx or SOx and particulate matter or all three types of emissions and their attendant adverse impacts on human health and the environment. Emission control areas shall include those listed in, or designated under, regulations 13 and 14 of this Annex.⁷

Regulation 14 of Annex VI provides standards for sulfur oxides (Sox) emissions. It specifies that the sulfur content of fuel used on board ships in all areas shall not exceed “4.50% m/m prior to 1 January 2012,” “3.50% m/m on and after 1 January 2012,” and “0.50% m/m on and after 1 January 2020.” ⁸ More stringent requirements apply within the ECAs identified in Regulation 14. In those areas, the sulfur content of fuel shall not exceed “1.50% m/m prior to 1 July 2010,” “1.00% m/m on and after 1 July 2010,” and “0.10% m/m on and after 1 January 2015.” ⁹

II. United States' Adoption and Implementation of MARPOL.

In 1980, MARPOL was approved by two-thirds of the Senate. Later that same year, Congress passed the Act to Prevent Pollution from Ships (“APPS”) to implement MARPOL.¹⁰ In April 2006, the Senate again approved MARPOL, including Annex VI. In 2008, Congress amended APPS to implement Annex VI. ¹¹ The North American ECA was added to Annex VI in 2010.¹²

III. Amendment of MARPOL to Include the North American ECA.

Appendix III to Annex VI was implemented by Congress in the 2008 amendments to APPS and sets forth criteria and procedures for designating ECAs.¹³ Appendix III states that an ECA “should be considered for adoption by the [IMO] if supported by a demonstrated need to prevent, reduce and control emissions of NOx or SOx and particulate matter ... from ships.” ¹⁴ It outlines the process for adopting an ECA: a party to MARPOL submits an ECA proposal; the IMO assesses the proposal, taking into account a specified set of criteria; if the proposal passes muster, it is adopted and brought into force by means of an amendment to Annex VI.¹⁵

MARPOL directs that a proposal for the designation of an ECA include the following:

• a description of the human populations and environmental areas at risk from the impacts of ship emissions;

• an assessment that emissions from ships operating in the proposed area of application are contributing to ambient concentrations of air pollution or to adverse environmental impacts. Such assessment shall include a description of the impacts of the relevant emissions on human health and the environment, such as adverse impacts to terrestrial and aquatic ecosystems, areas of natural productivity, critical habitats, water quality, human health, and areas of cultural and scientific significance, if applicable. The sources of relevant data including methodologies used shall be identified;

• relevant information, pertaining to the meteorological conditions in the proposed area of application, to the human populations and environmental areas at risk, in particular prevailing wind patterns, or to topographical, geological, oceanographic, morphological or other conditions that contribute to ambient concentrations of air pollution or adverse environmental impacts;

• the nature of the ship traffic in the proposed emission control area, includingthe patterns and density of such traffic;

• a description of the control measures taken by the proposing Party or Parties addressing land-based sources of NOx, SOx and particulate matter emissions affecting the human population and environmental areas at risk that are in place and operating concurrent with the consideration of measures to be adopted in relation to provisions of regulations 13 and 14 of Annex VI; and

• the relative costs of reducing emissions from ships when compared with land-based controls, and the economic impacts on shipping engaged in international trade.¹⁶

Appendix III also provides that “[t]he geographical limits of an emission control area will be based on the relevant criteria ... including emissions and deposition from ships navigating in the proposed area, traffic patterns and density, and wind conditions.” ¹⁷

On April 2, 2009, the United States and Canada submitted a 74–page joint petition to the IMO to create the following North American ECA, which would include certain designated Alaskan coastal waters ¹⁸:

IMAGE

The petition referenced a Technical Support Document (“TSD”) that had been published by the EPA in April 2009.¹⁹

Article 16 of MARPOL outlines the IMO's procedure for amending the convention. ²⁰ After being “adopted by a two-thirds majority of only the Parties to the Convention present and voting,” the amendment is communicated to all parties to MARPOL and deemed accepted unless certain types of objections are made.²¹ Once the amendment has been accepted, it becomes effective six months later with respect to parties that have accepted it, but not with respect to parties that declared they did not accept it or those that declared their express approval was necessary.²²

In March 2010, the IMO voted to amend Annex VI to designate the North American ECA.²³ As a result, the ECAs listed in Regulation 14 of Annex VI now include “the North American area as described by the coordinates provided in appendix VII to this Annex.” ²⁴ Appendix VII describes the North American ECA by a listed series of geographic coordinates, and, as noted above, it includes Southeast and Southcentral Alaskan coastal waters.²⁵

The ECA amendment was circulated to all MARPOL parties for acceptance. The United States Secretary of State did not reject the amendment, nor did any other party to MARPOL. As a result, the North American ECA entered into force as a matter of international law with respect to the United States and all other parties to MARPOL on August 1, 2011.²⁶

IV. EPA Action.

In January 2009, before the United States and Canada submitted their joint ECA petition to the IMO, EPA issued a Regulatory Update entitled “Frequently Asked Questions about the Emission Control Area Application Process” that expressed its intention to include the designated portion of Alaska in the North American ECA.²⁷ The Regulatory Update includes the following:

Will the coasts of Alaska and Hawaii (and other U.S. territories) be included in the application? If not, can they be included in the future?

Ideally, we would like to include all of the U.S. coasts in our application for ECA designation, including Alaska, Hawaii, and the U.S. territories. To do so, however, we will have to provide information that demonstrates a need for control, as specified in the criteria for ECA designation. This is challenging because, although our emissions modeling includes all 50 states, our air quality modeling does not extend beyond the 48 contiguous states. Therefore, it will be necessary to find other ways to measure the health and environmental impacts of marine emissions on health and human welfare outside the continental United States.

We have not made a final determination on whether the coasts of Alaska and Hawaii will be...