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Federal appeals court orders EPA to rewrite ballast rules for ships

Oct 8, 2015

The American Victory
Credit Rebecca Williams / Michigan Radio

This week, the 2nd Circuit U.S. Court of Appeals in New York ordered the Environmental Protection Agency to write new rules for the ballast water in ships.

Four environmental groups sued the EPA over its current ballast water rule.

Invasive species can get into the Great Lakes in ballast water. Salties are ships that cross the ocean, and lakers are ships that travel only within the Great Lakes. In the decision, the judges criticize the EPA for exempting lakers from certain regulations. 

Robert Lewis-Manning is the president of the Canadian Shipowners Association.

He says salties pose a bigger risk of bringing new invaders in than his ships (lakers) do. But he acknowledges lakers can also move invaders around the lakes once they’re in.  

“We do understand there is a transfer risk that can happen, and finding the right technology to address the right risk is really what we’re trying to achieve as the next step,” Lewis-Manning says.

The EPA declined to comment on the decision, and sent us to the Department of Justice. A DOJ spokesman said they’re reviewing the court’s decision.

What the ruling means

"What this court does is it takes the EPA's modest and not-strong-enough attempt to regulate this dangerous form of pollution from ballast water from ships which brings invasive species to the Great Lakes and other waters of the United States," Hall says. "And it sends it back to the drawing board."

Noah Hall is an expert on water law and a professor at Wayne State University. He says the ruling sends EPA back to the drawing board to rewrite its ballast water rules.

“It tells the EPA that their rule is not strong enough. Their rule does not comply with the Clean Water Act. It doesn’t do enough to force the industry to adopt the best technology available, and it’s going to force the EPA to go back and take some time and issue a better, more protective, stronger rule.”

Hall says the EPA’s original rule will remain in effect while the EPA works on writing new rules on ballast water.

“The court could have vacated the rule while the EPA went back to work, but that would have left the Great Lakes and other waters even more vulnerable, because without a rule in effect there’d be even less controls on pollution,” Hall says. “So the court allows the EPA’s rule to remain in effect for the brief period of time it will take the EPA to go back and do a better job.”

Tougher regulations for lakers

The shipping industry has argued that stricter standards are not necessary. The judges, however, singled out lakers in particular, for their role in potentially moving invasive species around the lakes.

Hall says one of the most important parts of the court ruling is the requirement for EPA to revisit its regulations on lakers.

“The EPA regulations took a somewhat strict approach to the salties, the ocean-going vessels, but largely gave the lakers a free pass,” he says.

Here’s what the federal judges ruled:

EPAʹs exemption of the pre‐2009 Lakers from the 2013 VGP [Vessel General Permit] was also arbitrary and capricious due to EPAʹs failure to conduct an appropriate and factually‐supported cost-benefit analysis. Such an analysis might have shown that the cost of subjecting pre-2009 Lakers to the 2013 VGP was not unreasonably high, or, alternatively, that onshore treatment was economically feasible.

“And this ruling requires the EPA to go back and subject the lakers to the same strict standards that the EPA needs to impose on the ocean-going vessels,” Hall says.

But it could get more complicated.

Senator Marco Rubio (R-FL) introduced a bill this year (S. 373) that would make the Coast Guard the lead agency on ballast water regulation.

If the bill passes, Hall says, it would gut this court decision.

“That legislation would in effect exempt these vessels — both lakers and salties — from regulation by the EPA under the Clean Water Act,” Hall says. “It would more or less gut this decision and it would take this entire form of pollution, take it out of the Clean Water Act regulatory scheme which applies to all other forms of pollution, and give the shipping industry its own special, unique free pass to avoid Clean Water Act regulation and simply comply with some other guidelines issued by the Coast Guard.”