The following article appeared Oct. 21 on Law360.

Effective control of ship-borne, nonindigenous organisms has proved to be a major challenge to the maritime industry, international maritime organizations, national and local governments, environmental organizations, and, most recently, the courts.

Large ocean-going vessels use seawater as ballast to ensure stability across varying load profiles. Water is taken on board into segregated tanks and then discharged into the environment as cargo and fuel are loaded. Amounts vary with the design, function and size of the ship. In the largest vessels, millions of gallons of ballast water can be taken on in one port, transported across the globe and released into a new aquatic ecosystem along with debris, sewage, pollutants, benign and pathogenic micro-organisms, and small marine plant and animal species that are inadvertently sucked into a ship’s tanks during ballasting operations.

While there are trade routes in which the environments at either end of a voyage are so disparate that plants, animals and other biota carried in ballast cannot survive, there have been numerous examples of non-native species being transported in ballast water and adapting successfully to their new surroundings, some spectacularly so to the injury of native species. Zebra mussel populations in the Great Lakes originated several decades ago in the discharged ballast water of a ship that transported them from their native Eurasian habitat. Once released into their new surroundings in the Lakes, they thrived to the point that they soon were encrusting water intakes at power plants and factories, while dining voraciously on small aquatic organisms that were important links in the food chain for larger native fish species. These mussels multiplied rapidly and spread throughout the Great Lakes region, working their filtering magic on water quality while devastating populations of local lake creatures.

Examples of other infestations traceable to ballast water transfers are numerous both in the United States and abroad. It is not controversial that inadvertent introduction of non-native species via ship ballast water can have significant negative environmental and economic effects. What is controversial is identifying effective measures to control the problem. Increasingly, the U.S. judicial system is weighing in and placing increasing demands on industry, the U.S. Environmental Protection Agency and the venerable Clean Water Act (33 U.S.C. § 1251 et seq.) to provide solutions.

Earlier this month, a unanimous panel of the United States Court of Appeals for the Second Circuit sent the Environmental Protection Agency back to the drawing board on measures intended to give effect to the CWA’s prohibition on “the discharge of any pollutant” from point sources into the navigable waters of the United States. Natural Resources Defense Council et al. v. EPA, 2015 WL 5780393, Oct. 5, 2015. For more than 30 years following the enactment of the CWA, the EPA had exempted from the permitting requirements of the act discharges from vessels that were “incidental” to the “normal operation” of the vessel. Ballast water discharges were covered by this exemption. Environmental groups challenged the exemption in federal court and, in 2006, prevailed in their efforts to vacate it. Northwest Environmental Advocates et al. v. EPA, 2006 WL 2669042, N.D. Cal., Sept. 18, 2006, aff’d. 537 F.3d 1006 (9th Cir. 2008).

The removal of the exemption threw the industry, the United States Coast Guard (which has regulatory responsibilities as the U.S. Port State Control authority and under specific federal legislation addressing invasive species), and the EPA into a chaotic compliance dilemma. International standards had recently been established by the International Convention for the Control and Management of Ships’ Ballast Water and Sediments (2004); technologies capable of treating ballast water were in development, but were unproven; impacted U.S. states were volubly expressing different notions about what standards should apply; and environmental advocacy groups were none too pleased with what they regarded as a tepid EPA response to the elimination of the exemption for vessels. The EPA established a vessel general permit (VGP) system to replace the exemption and to meet the permitting requirements of the CWA. It was the 2013 iteration of the VGP program that came under judicial scrutiny in the Second Circuit, pursuant to a consolidation order that collected petitions for review from Second, Ninth and D.C. Circuits.

The Second Circuit’s critique of the EPA’s ballast water standards endorsed petitioner environmental organizations’ charges that the EPA’s decision to conform its effluent limits to standards set internationally by the International Maritime Organization, a United Nations Agency, was arbitrary, capricious and inconsistent with the CWA’s requirement that technology-based limits should reflect best available technology. The court further faulted the EPA for failing to consider onshore treatment options (as opposed to vessel-based systems), for exempting certain classes of vessels from the 2013 VGP, and for using narrative, as opposed to numerical standards for permitted effluents. While the 2013 VGP is expressly granted continued life while new standards are developed, the effect of the circuit court’s decision is to throw U.S. regulation of vessel-transported marine species back to a position fairly close to the state of affairs following the elimination of the CWA exemption in 2006.

No 21st century environmental issues are simple. Ballast water regulation seems particularly and frustratingly piled high with legal and practical difficulties. The merchant fleet serving the commerce of the United States is overwhelmingly an offshore, multinational fleet composed of vessels of many nations that trade in a variety of geographies. The very nature of the industry strongly suggests that any effective regulation of ballast water quality must reflect standards and technologies that work globally.

The Second Circuit decision expressly faults EPA for publishing effluent standards reflective of international norms — the implication being that the Clean Water Act cannot admit of international solutions that would not pass muster under U.S. law. Because the CWA also grants individual states considerable latitude to set water quality standards within their boundaries, the achievement of mutually agreed, uniform international standards for the international fleet seems an unrealistic ambition unless the maritime nations of the world acquiesce in the most stringent regulations of the most aggressive U.S. coastal state. Moreover, technology issues continue to vex efforts to identify economically viable, reliable on-board treatment systems for vessels operating in international trade. The Second Circuit notes that the CWA was intended to be a “technology-forcing” regime. Uncertainty about what standards will apply to a fleet that, of necessity, must operate through scores of maritime jurisdictions in addition to the United States means that technology development is hobbled by uncertainty concerning the performance standards that must be targeted. On-board systems are expensive and, because they operate in internal spaces of a vessel, are best installed during the construction of a vessel, a process that can take many months from order to delivery.

A possible bright spot in the Second Circuit’s decision is its attention to shoreside treatment facilities. Chief Judge Denny Chin’s opinion bluntly states that the EPA “turned a blind eye to significant information about onshore treatment.” As awareness of the invasive species issues attendant to ballast water exchanges grew, the regulatory and political emphasis in the United States and elsewhere has been to push the responsibilities and costs of treatment to the vessel and its owner, as opposed to exploring the feasibility of shoreside infrastructure that could provide treatment capabilities superior to what can be crammed into the interior spaces of ships.

There are obvious disadvantages to shoreside facilities — they are expensive, they take up valuable acreage not readily available in congested port areas, and they raise controversial siting problems wherever located. However, maritime environmental initiatives have had a chronic tendency to shove physical responsibility for attaining standards on to the vessel itself, a vehicle not physically optimal for many of the complex functions that must occur to ensure that ship wastes are rendered harmless to the environment. The opinion’s emphasis on the absence of attention to shoreside treatment might be a modest positive contribution to the evolution of meaningful, economically sustainable controls on ballast water discharges.

Finally, the decision, and its discussion of the many complexities that attend this subject, may provide impetus to pending legislation in Congress that would support a uniform national system of regulation of ballast water discharges. That legislation (S. 373, the Vessel Incidental Discharge Act) is intended to consolidate regulation of vessel discharges in the United States Coast Guard and has broad support from vessel and port interests.