The Ninth Circuit Court of Appeals has upheld California rules requiring oceangoing vessels traveling within 24 miles of the state’s coastline to switch to low-sulfur fuels. Pac. Merch. Shipping Ass’n v. Goldstene, No. 09-17765 (9th Cir. 3/28/11). Adopted by Cal/EPA’s Air Resources Board in 2008, the rules establish fuel requirements for main propulsion engines and auxiliary engines and boilers. Since July 1, 2009, the ships have been required to switch from high-emitting bunker fuels to either marine gas oil with an average sulfur content of 0.3 percent or marine diesel oil with a 0.5 percent sulfur limit. By 2012, the rules will allow only marine gas oil or marine diesel oil containing no more than 0.1 percent sulfur.

Plaintiffs challenged the rules on the ground that the state lacked legal authority to impose rules on vessels outside of its three-mile coastal jurisdiction. Before the air board adopted the “vessel fuel rules,” the agency established a set of emission standards for ocean-going vessels. The Ninth Circuit invalidated the prior rules, finding that they were preempted by the Clean Air Act. PMSA v. Goldstene, 517 F.2d 1108 (9th Cir. 2008). The air board responded by suspending those rules and writing new vessel fuel rules that would address auxiliary engine fuels to curb diesel emissions from oceangoing vessels.

The district court held that federal law did not preempt the fuel rules and that plaintiffs failed to show that the rules were otherwise an unlawful attempt by the air board to “regulate navigation and foreign and domestic commerce.” The appellate court affirmed, ruling that, while the state agency may have pushed its legal authority to its very limits, the state was clearly justified in doing so given the severe environmental problems confronting it.