A three-judge panel overturned rules governing the United States’s ballast water regime in a significant decision affecting vessel operators trading in US waters.
In a 5 October decision, the US Court of Appeals for the Second Circuit found that the US Environmental Protection Agency (EPA) “acted arbitrarily and capriciously” in issuing parts of the 2013 vessel general permit (VGP), created to prevent foreign invasive species carried in ships’ ballast tanks from infesting US waters.
The decision from the New York-based court supported much of a petition from four green groups, led by National Resources Defense Council, which argued that the EPA used a flawed methodology on which it based its permits, and therefore did not sufficiently address the potential environmental hazards of invasive species, such as zebra mussels.
The court ruled that the 2013 VGP, which is set to expire at the end of 2018, remain in place and that EPA make changes to it consistent with the courts decision.
By that time, according to sources contacted by IHS Maritime, the EPA could come up with more rigid standards, or the US Coast Guard (USCG), which also oversees ballast water regulations, may certify a type-approved ballast water system that meets less strict IMO standards.
“My initial thought is that nothing too earth shattering changes right now, as the EPA standard for treatment systems is ‘best available technology’ whereas the USCG’s is ‘type approval’,” Jeanne Grasso, a maritime lawyer with Blank Rome, told IHS Maritime. “I think the two agencies will have a fair amount of talking to do once this issue is resolved to make the regulatory regime even marginally sane in the long term.” Grasso noted that EPA could appeal the decision to the Supreme Court.
The decision, meanwhile, injects more uncertainty for vessel operators looking to make major long-term investments to comply with environmental rules.
Glen Nekvasil, president of the Lake Carriers Association, which had fought against the greens’ petition, told IHS Maritime that his group “wanted time to digest the decision” before commenting.