(July 3, 2009) -- Rules adopted by the CA Air Resources Board (CARB) requiring ships to use low sulphur fuel (instead of high polluting bunker fuel) within 24 nautical miles of CA's coast went into effect on July 1 despite a legal action filed by the Pacific Merchant Shipping Association (PMSA) that seeks to invalidate those rules.

On June 30, a Sacramento-based federal court judge declined to grant PMSA summary judgment (early victory before trial), effectively allowing the rules to take effect for now.

CARB issued a release (extended text below) praising its cleaner ship fuel rules as reducing exhaust and annually preventing thousands of premature deaths. PMSA VP T.L. Garrett told LBReport.com that the next step in the group's legal challenge would come after PMSA's Board had discussed the Court's June 30 ruling.

The South Coast Air Quality Management District, the Natural Resources Defense Council and the Coalition for Clean Air joined in the lawsuit as defendant/intervenors in support of CARB's requirements.

To view the Court's full June 30 summary judgment ruling, click here.

CARB's release text makes no mention of PMSA's legal challenge:

[CARB release text] SACRAMENTO: Beginning today, July 1, all ocean-going vessels within 24 nautical miles of California's coastline must use cleaner burning diesel fuel in order to comply with a new state regulation aimed at reducing the emissions of oxides of sulfur and nitrogen and diesel particulate matter, a known carcinogen.

"This new measure will help coastal residents breathe easier and reduce pollution in our oceans and waterways at the same time," Governor Arnold Schwarzenegger said.

The requirement, adopted in 2008, will annually affect nearly 2,000 ocean-going vessels, both U.S. flagged and foreign-flagged, visiting California. The vessels will have to use lower-sulfur marine distillates rather than the highly polluting heavy-fuel oil often called bunker fuel.

"This comparatively simple switch for ships will have huge benefits for Californians," said Air Resources Board Chairman Mary D. Nichols. "People living along the coast will see benefits overnight: cleaner air and better health."

Using the cleaner fuels will be phased in, but significant emission reductions will be immediate. Initially, 13 tons-per-day of toxic particulate matter emitted from the vessels' diesel engines will be eliminated. Reductions will increase as the fuel sulfur content is progressively lowered through the regulation's phase-in.

Today's switch will eliminate about a 75 percent of the diesel PM, over 80% of the sulfur oxides and 6 percent of the nitrogen oxides. In 2012, when the very low sulfur fuel is required, reductions of diesel particulate matter will be 15 tons daily, an 83 percent reduction compared to uncontrolled emissions. Sulfur oxides will be reduced by 140 tons daily, a 95 percent reduction and nitrogen oxides will be reduced by 11 tons per day, a 6 percent reduction.

Reducing ship exhaust will eliminate an estimated 3,600 premature deaths between 2009 and 2015 and lower the cancer risk by over 80 percent. In addition, the emission reductions will assist the South Coast Air Quality Management District meet its 2014 federal clean air requirements for fine particulate matter. The reductions are also needed for ARB to achieve its targeted 85 percent reduction of diesel PM by 2020.

Air board representatives explain that the regulation is extremely cost effective. The fuel is readily available and complying with the regulation would typically add $30,000 to a California port visit, roughly one percent of the typical fuel costs for a vessel crossing the Pacific Ocean. The shipping industry maintains that a typical voyage for a container vessel from Asia to U.S. west coast costs a company two to three million dollars. For a container ship with consumer products, this cost increase equates to an extra 12.5 cents in the cost of a plasma TV. For a cruise ship passenger, using industry's numbers, this would add about $15 to a fare.

Diesel exhaust contains a variety of harmful gases and over 40 other known cancer-causing substances. Currently, diesel PM emissions from ocean-going vessels expose over seven million people in California to high cancer risk levels in excess of 100 in a million for lifetime exposures.

In 2000, the ARB developed its Diesel Risk Reduction Plan that set the goal of cutting diesel emissions by 85 percent by 2020. The plan includes a series of measures designed to achieve that goal. As part of that plan the Board has adopted measures that require the use of low sulfur diesel fuel in most applications statewide, tighter tailpipe limits on in-use diesel trucks and buses and to control emissions from port equipment and ships operating in California waters.

PMSA, an advocacy group whose members include terminal operators and shipping lines along the west coast, asked the federal Court in a complaint filed in late April 2009 to enjoin [stop] enforcement of the CARB rules "and to declare the regulations unconstitutional and contrary to federal law insofar as those regulations impose requirements on vessels operating seaward of California’s three-mile boundary." The complaint seeks a permanent injunction against enforcement of CARB's rules more than three geographical miles seaward of CA's coast and a declaratory judgment that the rules are "unlawful and unconstitutional to the extent they regulate the conduct of ships outside California's territorial limits."

To view PMSA's complaint in full, click here.

This is the second time PMSA has challenged CARB rules on this general subject matter, the first coming in late 2006-early 2007 when PMSA succeeded in overturning somewhat different CARB rules that could have required ship owners to use different engines. A federal Court held that the previous CARB rules were an invalid state intrusion into areas preempted by federal authority.

CARB then revised its rules which now require the use of the cleaner-fuel which can be used without changing ship engines.

The issue of ship emissions is significant in efforts by the Ports of LB and L.A. to achieve emission reduction targets they set for themselves in their non-binding Clean Air Action Plan.

In March 2008, the Ports of LB and L.A. jointly adopted a voluntary incentive program that offered to compensate shipping firms for the cost differential of using cleaner fuel instead of high polluting bunker fuel. Port of LB spokesman Art Wong says the voluntary incentive program produced less than 50% participation by shippers.

The Ports' voluntary incentive program was temporary and timed to expire on July 1, 2009...when it was expected that CARB's mandatory rules would go into effect...as they have (for now).

Under CARB new rules (being challenged by PMSA), participation is mandatory (unless a Court overturns the rules as PMSA's lawsuit requests).

In its June 30, 2009 ruling denying PMSA's motion for summary judgment, the Court described the background to the case as follows [citations omitted]

On April 16, 2009, the CARB regulations at issue in this matter were transmitted to the California Secretary of State for filing pursuant to California Government Code § 11349.3. Under the terms of the regulations, enforcement will commence on July 1, 2009.

The express purpose of the regulations (hereinafter referred collectively as the “Vessel Fuel Rules” or the “Rules”) is to reduce air pollutants affecting the State of California by requiring ocean-going vessels1 to use cleaner marine fuels. Under the Rules, vessel operators are required to use cleaner marine fuels in diesel and diesel-electric engines, main propulsion engines, and auxiliary boilers on vessels operating within twenty-four nautical miles off the California coastline...

According to the State of California, ocean-going vessels, which typically utilize large diesel engines, are a significant source of air pollution in California, due in part to their widespread use of low-grade bunker fuel. Bunker fuel consists primarily of thick, tar-like residual fuel formulated from the residues remaining after primary fuel distillation.

As a result of its viscous nature, bunker fuel has to be heated before it can be pumped and injected into an engine for combustion...Residual fuel contains an average of about 25,000 parts per million (ppm) of sulfur, as opposed to diesel fuel for trucks and other motor vehicles, which is limited to 15 ppm sulfur...The proposed Vehicle Fuel Rules mandate that ocean-going vessels coming into California ports use distillate fuel with a maximum sulfur level falling between these two extremes. 2006 data generated by CARB suggests that ocean-going vessels traveling within twenty-four nautical miles of California’s coast generate approximately 15 tons per day of diesel particulate matter (“PM”), 157 tons per day of nitrogen oxides (“NOx”), and 117 tons daily of sulfur oxides (“SOx”)...This makes SOx emissions from such vessels the single largest source of SOx emissions in the state, responsible for some forty percent of all SOx emitted...Importantly, too, both NOx and SOx are precursors of PM2.5, or fine particulate matter pollution...The PM emissions from ocean-going vessels are also significant and have been estimated as equivalent on a daily basis to approximately 150,000 big rig trucks traveling 125 miles per day...

Long Beach and Los Angeles ports collectively constitute the largest port in the United States. Some forty percent of all national imports are estimated to move though those two California ports.

Research shows that pollutants discharged offshore migrate to the California coast. Vehicle emissions are likely to be transported onshore from even beyond the twenty-four nautical mile boundary used in the Rules. SCAQMD UF No. 8.

PMSA does not dispute that implementation of the Vessel Fuel Rules, which were adopted following a lengthy process which included consultation with both the public, state and local agencies, and the federal government, is estimated to reduce PM emission by 13 tons per day, NOx by 10 tons per day, and SOx by 109 tons per day...For sulfur oxides, that reduction amounts to some ninety percent fewer estimated emissions upon full implementation of the Rules...

...PMSA does not contend that compliance with the new Rules is technically impossible or even difficult. NRDC UF No. 22. Only costs are cited. It nonetheless appears that compliance would increase costs of imported goods by an insignificant amount...

From a public health and safety perspective, it is undisputed that twenty-seven million Californians, or eighty percent of the population, are exposed to ocean-going emissions that increase cancer risks...Diesel emissions are known to cause premature death, cancer, aggravated asthma and other respiratory illnesses, and increased risk of heart disease.

The problem particularly prevalent in the Southern California area encompassed by the South Coast Air Basin, where over eighty percent of the population is exposed to PM2.5 levels exceeding federal standards...In fact, CARB has calculated that over fifty percent of the total population weighted exposure to PM2.5 levels exceeding federal standards in the entire nation occurs in the South Coast Air Basin, although the Basin has only five percent of the nation’s population...Not surprisingly, the South Coast Air Basin has consequently been unable to attain national air quality standards.

CARB estimates that directly-emitted diesel particulate matter from ocean-going vehicles causes about 300 premature death statewide every year, not including cancer effects...In contrast, research indicates that implementation of the Vessel Fuel Rules between 2009 and 2015 alone will prevent some 3,500 premature deaths, nearly 100,000 asthma attacks, and significantly reduce cancer risk...

NRDC's website includes a blog by staff attorney David Pettit, who opines as follows:

A substantial percentage of air pollution from ships is emitted while the ships are in transit along the California coast. To remedy this, the California Air Resources Board has enacted a regulation that would regulate the sulfur content of marine fuel within 24 nautical miles of the California costs. But, the shipping industry has challenged this regulation in federal court. The Long Beach and Los Angeles ports enacted their own voluntary, fully subsidized clean marine fuel rule (set to expire next month), but enrollment by the shipping industry has been surprisingly low.

There may be national regulation of marine fuel in 2015, but if the shipping industry wins its lawsuit and the Ports' voluntary program expires, all Californians who live near the coast - and that is most of us - will be exposed to high levels of diesel particulate and other toxic air pollution from ships for at least the next six years. That should send an angry shock through all of us.

The LB law firm representing PMSA in its latest challenge to CARB's rules includes the spouse of LB Harbor Commissioner Susan Anderson Wise (who joined LB's Harbor Commission in December 2008). Erich Wise (listed first among three named attorneys on the case) and his firm also represented PMSA in its successful 2006-2007 federal court challenge to CARB's previous rules.

City Attorney Bob Shannon told LBReport.com that he sees no conflict of interest in Ms. Wise's spouse serving as a lawyer on PMSA's behalf. Mr. Shannon said that Ms. Wise "is her own person" (she is an attorney/partner in another law firm), spoke very highly of her and added that he's quite confident she would recuse herself if a conflict were to arise in Harbor Commission matters.

Mayor Foster didn't mention the law firm activities of Mr. Wise when he nominated Ms. Wise to become a Harbor Commissioner but Belmont Shore Residents Association President Mike Ruehle raised the issue in testimony at Ms. Wise's December 2008 Council confirmation hearing.

In that proceeding, Ms. Wise received multiple Council plaudits and was confirmed by Councilmembers without dissent.

Shortly after the Council hearing, LBReport.com asked Commissioner Wise if she had informed Mayor Foster of her spouse's professional legal involvements and she said "yes.".

Mayor Foster is now poised to nominate another Harbor Commissioner, this time to take the place of recently retired Commissioner James C. Hankla.

PMSA is an advocacy group whose members include terminal operators and shipping lines along the west coast...including those that lease/rent terminal space at the Port of LB and other west coast ports. Its website describes the group as promoting "policies to minimize the environmental impacts of our member operations."

PMSA's April 2009 complaint describes the group as "a mutual benefit corporation [whose] principal purposes include representation and promotion of its members' interests in legislative, legal, and administrative matters affecting its members [who] include twenty-two companies that own or operate foreign and United States-flagged ocean-going commercial vessels in foreign and interstate maritime commerce within twenty-four miles of the California coastline and in ports in California...The PMSA's ship owner/operator members use main propulsion and auxiliary diesel and diesel electric engines and auxiliary boilers during navigation within 24 miles of the California coast, and they will be subject to [CARB rules citation] when enforcement of the regulations begins."

PMSA is active in local advocacy and political matters. PMSA VP Michele Grubbs was a member of the LB Area Chamber of Commerce's 2008-09 Board of Directors and Government Affairs Council and is listed as a 2009-10 Boardmember in a recent Chamber event program.

PMSA's PAC (political action committee) gave campaign contributions to support the election of now-1st dist. Councilman Robert Garcia (April 2009), the 2008 re-election of Councilman Dee Andrews (after supporting Chamber-backed candidate Ahmed Saafir in 2007)...and the 2006-election of now-Mayor Bob Foster (Nov. 2005 and runoff May 2006).