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COLUMN LEGAL BEAT Sea Change Ballast Water, Vessel General Permits, and the Limits of Preemption Doctrine The past year has witnessed dramatic new developments in the regulation of discharges from vessels in the United States. These changes have been driven by two federal appellate court decisions, one of which invalidated a decades-old exemption of discharges from vessels under the Clean Water Act ("CWA") and another which upheld the authority of a state to institute its own permitting regime regarding ballast water discharges from ocean-going vessels. These decisions give new vitality and force to environmental statutes that previously have had only limited application to commercial vessel operations in the United States. They also underscore the limitations of the federal preemption doctrine with respect to environmental regulation and create the potential for a patchwork of differing environmental requirements applicable to vessel operations in the individual states. Ultimately, the decisions may render compliance with environmental standards in the United States significantly more difficult for the maritime industry while multiplying the risks associated with non-compliance. False Security of MARPOL and the Locke Decision Since the 1980s, with the entry into force of the International Convention for the Prevention of Pollution from Ships, 1973, as modified by the Protocol of 1978 relating thereto, ("MARPOL"), the commercial maritime industry has understandably focused its attention and energy on the International Maritime Organization ("IMO") for the development of international environmental standards to govern discharges from vessels. The maritime industry has relied on a paradigm in which the member states of the IMO, with technical and operational input from the organization's observer delegations, would develop uniform environmental standards and a comprehensive regulatory system governing environmental requirements for vessel operations worldwide. One of the expectations built into the paradigm has been that, once an environmental treaty or convention was adopted by the IMO and entered into force following ratification by a sufficient number of member States, the Contracting States would enact implementing legislation that mir26 rored the standards and requirements of the treaty. It has also been presumed that the Contracting States would also ensure that their national environmental laws were otherwise consistent with the provisions of the implementing legislation. The passage of the Act to Prevent Pollution From Ships in the United States, implementing MARPOL Annexes I (Oil) and II (Noxious Liquids), combined with the earlier decision by the Environmental Protection Agency to exempt "discharges incidental to the normal operation of a vessel" from the permit requirement under the CWA, 40 C.F.R. � 122.3(a), contributed to the belief that environmental regulation of vessel operations could be achieved on the basis of uniform international standards that were understood by and workable for commercial vessel operators worldwide. The Senate's ratification of MARPOL Annex V (Garbage) in 1987 served to reinforce this view. Confidence in the viability of a uniform international regulatory regime governing commercial vessel operations was further strengthened by the decision of the Supreme Court in United States v. Locke, 529 U.S. 89 (2000). In Locke, the Supreme Court invalidated regulations enacted by the State of Washington regarding watch-standing procedures, training and casualty reporting for tank ships operating in state waters. That result was based on the finding that the regulations were preempted because they were within the field reserved for federal legislation. Although the specific ruling in Locke was based on the language of the Ports and Waterways Safety Act of 1972, as amended by the Port and Tanker Safety Act of 1978 and the Oil Pollution Act of 1990, the Court's opinion also referenced several related international maritime treaties, including SOLAS, and STCW, which the Court viewed as demonstrating Congress' insistence on "national uniformity regarding maritime commerce." Locke, 529 U.S. at 102. Although the past decade has witnessed a surprisingly steady stream of enforcement cases in the United States for MARPOL Annex I violations, there was at least a measure of cold comfort that could be taken from the knowledge that these cases involved a known international standard that was developed and ap- proved under the authority of the IMO. While it has proved difficult for vessel operators to achieve uniform compliance with the Annex I requirements for the management of oily wastes, vessel operators understood that their operations would be measured against a uniform environmental standard applicable essentially worldwide. Ballast Water Regulation Stalls In contrast with the progress achieved in environmental regulation through MARPOL, the IMO and its Marine Environmental Protection Committee ("MEPC") were slow to develop guidelines and standards for the control and management of ballast water. The significant environmental and ecological threats posed by the introduction of invasive species through ballast water exchange were initially brought to the attention of the MEPC during the 1980s. Three separate resolutions were adopted by the IMO Assembly and the MEPC in the 1990s acknowledging the urgent need for development of internationally applicable, legally binding standards to minimize the transfer of harmful aquatic organisms and pathogens, but progress on the development of a new instrument was halting, at best. It was not until 2004 that the IMO Assembly finally adopted the International Convention for the Control and Management of Ships' Ballast Water and Sediments ("BWM Convention"), but that instrument will not enter into force until 12 months after the ratification by 30 States, representing 35 per cent of the world merchant shipping tonnage. As of this printing, only 18 States have ratified the BWM Convention, representing just 15 per cent of the world's tonnage. It appears unlikely that the Convention will enter into force as written because it is now generally perceived as not sufficiently stringent to address the problems posed by ballast water exchange. Two statutes were enacted in the United States during the 1990s, the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 ("NANPCA") and the National Invasive Species Act of 1996 ("NISA"), which authorized the Coast Guard to develop a regulatory program to prevent the introduction and spread of aquatic nonindigenous species. The Coast Guard initially promulgated a mandatory ballast water management ("BWM") program limited to the Great Lakes and the Hudson River. CFR, Title 33, Part 151, Subpart C. In the wake of several high profile invasions in other parts of the country, NISA required the Coast Guard to promulgate voluntary national BWM guidelines, but directed the agency to convert them to a mandatory program if it was determined that the voluntary guidelines were inadequate. By 2002, the Coast Guard reported to Congress that compliance with the voluntary BWM guidelines was too low to permit the agency to determine the adequacy of the program, so the voluntary guidelines were converted to a national mandatory BWM program in 2004. The Coast Guard is currently engaged in a rulemaking that is intended to set a performance standard for the quality of ballast water discharged in U. S. waters, but it is not known when the work on that rulemaking will be completed. Decentralization of Vessel Discharge Regulation The absence of a comprehensive international regime for the effective management of ballast water from ships prompted California and several other states to develop their own ballast water regulatory programs. The perceived inadequacy of ballast water regulation also engendered litigation that produced two key federal appellate court decisions this past year that have resulted in the introduction of a national environmental permitting regime for vessels in the United States and have substantially altered the legal bases for environmental regulation of vessel discharges in the United States. In December 2003, several environmental interest groups, motivated primarily by environmental concerns stemming from the discharge of ballast water from vessels, brought suit against the EPA arguing that the agency's 30 year old regulation exempting "discharges incidental to the normal operation of a vessel" from the permit requirement of the CWA was inconsistent with the plain language of the statute. Northwest Environmental Advocates, et al. v. EPA, 2006 U.S. Dist LEXIS 69476 (N.D. Cal. 2006). Several Great Lakes states intervened in that suit, supporting the plaintiffs' position and urging the court to Maritime Reporter & Engineering News