Overreach on the High Seas?: Whether Federal Maritime Law Preempts California’s Vessel Fuel Rules

Abstract

The Vessel Fuel Rules (VFR) are currently being challenged in federal court. The PMSA is seeking an injunction in federal district court, and its motion for summary judgment seeking this injunction was denied. That decision was appealed, and the Ninth Circuit affirmed the district court’s denial of summary judgment. Because the PMSA contends that the Ninth Circuit’s holdings as to federal law were in error, it filed a petition for writ of certiorari with the Supreme Court, which is pending as this Comment goes to publication. Certainly, the precedential value of that case’s outcome, as well as issues addressed in this Comment, will have a long-term impact on the limits of state regulation in the field. The extent to which states may exercise their police powers in ocean waters beyond their borders will be informed by this ongoing litigation. This Comment takes no position on the wisdom of California’s environmental regulations or the science behind the policy, although it highlights the historical fact that California—and specifically, Southern California—has been confronted with a serious air pollution problem. Rather, this Comment addresses only the jurisdictional and preemption questions under current case precedent and shows that the VFR are likely preempted. Specifically, the regulations may be preempted by the CAA and MARPOL, and they are likely preempted by general principles of maritime law as espoused by the Supreme Court (the Ninth Circuit’s decision in PMSA II notwithstanding). Moreover, although it is unlikely that the statutory framework of the SLA preempts the VFR by itself, the territorial boundary that the SLA codifies is a factor that strongly favors preemption by general maritime law principles.

Part II gives a background on Article III’s jurisdictional grant of maritime jurisdiction to the federal courts and the substantive federal law that proceeds from that grant. Part III provides an overview of CARB’s 2007 regulations, which are no longer in effect, and its 2009 VFR, which are currently being enforced. Part IV discusses whether the VFR are preempted by congressional legislation, international legal frameworks, or constitutionally-derived federal maritime principles. Part V concludes.