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Federal judge tosses Alaska's sulfur emissions case

Jerzy Shedlock
An Alaska federal judge on Tuesday rejected the state’s case to challenge emissions control areas that would require ships off the Southeast and Southcentral coasts to use low-sulfur fuel. The state of Alaska says it's examining appeal options. NPS photo

A federal judge on Tuesday rejected the state of Alaska’s case to challenge emissions-control areas that would require ships off the state's Southeast and Southcentral coasts to use low-sulfur fuel in an effort to curb air pollution. U.S. District Judge Sharon L. Gleason tossed the case, finding the federal government’s imposition of stricter pollution rules wasn’t subject to judicial review, due to complications stemming from an international agreement that attempts to regulate emissions.

State attorneys say they are now looking at their appeal options.

Gleason wrote in a Sept. 17 court order dismissing the state’s case that then-Secretary of State Hillary Clinton’s acceptance of the emissions control area (ECA) in 2011 could not be challenged. “Accordingly, judicial review of (Clinton’s) decision to accept the North America ECA would demonstrate a lack of respect for both Congress’s intent and Secretary of State’s executive power,” Gleason wrote.

The state argued the U.S. State Department illegally accepted the control area amendment to the International Convention for the Prevention of Pollution from Ships, commonly called MARPOL.

It further argued the amendment would harm Alaska’s economy by significantly raising costs for marine vessels. Alaska’s seafood industry alone generates 78,500 jobs, and the industry’s total economic impact is estimated around $5.8 billion, according to the Alaska Department of Fish and Game.

And the Alaska cruise industry, which largely backed the state’s lawsuit, garners about $1 billion in annual revenue, which generates more than 20,000 jobs and wages totaling $850 for the state’s workers, according to Alaska Cruise Association.

In April 2009, the U.S. and Canada jointly proposed amending MARPOL to include control areas off Alaska’s coast where sulfur emissions would be strictly regulated. The amendment was adopted and became part of MARPOL in March 2010. Clinton accepted the amendment for the U.S. on Aug. 1, 2011.

One year later, the Environmental Protection Agency and the U.S. Coast Guard started enforcing the low-sulfur fuel requirements in Alaska. As of Aug. 1, 2012, vessels in the areas were required to use fuel with sulfur content that didn’t exceed 10,000 parts per million. Beginning in 2015, ships in the area will be required to use low-sulfur fuel, defined as having a sulfur content of less than 1,000 ppm. All ships operating within 200 miles of the coastlines will be required to use the costlier fuel.

According to the state’s complaint, Clinton failed to ensure the change was based on “relevant criteria,” and the EPA failed to provide a breakdown of emissions in control areas specific to Alaska. Alaska “already enjoys air quality that is generally cleaner than the EPA’s National Ambient Air Quality Standards,” state officials wrote in a press release last year.

Extension of emissions control to Alaska requires approval by two-thirds of the U.S. Senate, the complaint said. The feds failed to acquire that approval, argues the state, and therefore enforcement in Alaska is unconstitutional.

Ultimately, the district judge ruled that the court does not have jurisdiction to question how Clinton’s authority was exercised. A court order negating the enforcement would possibly embarrass the federal government in front of the international community through “multifarious pronouncements,” she wrote. Gleason also ruled the decision is not subject to review due to a complicating balance of factors in the realm of foreign affairs, Clinton’s area of expertise.

As for the two-thirds Senate vote requirement, Gleason ruled the treaty was self-executing, and MARPOL can be enforced without legislative action.

The state is currently examining its options, reported Law 360, a trade publication.  

"The State is disappointed in the district court’s dismissal of its challenge to the ECA imposed on Alaska and is looking at its appeal options," Cori Mills, an Alaska assistant attorney general, told Law 360. "The State remains concerned that the ECA will increase the cost of shipping goods to and from Alaska, thereby increasing the costs of goods that all Alaskans buy, and decreasing State revenues by increasing the cost to export its natural resources."

Arguing the case before the Ninth Circuit Court of Appeals would be the state’s next option, but it hasn’t decided if it will do so, said Alaska Assistant Attorney General Seth Beausang.

Contact Jerzy Shedlock at jerzy(at)alaskadispatch.com or via Twitter at twitter.com/jerzyms