Comment by Clay J. Garside
In order to comply with the requirements of the Clean Air Act, the Environmental Protection Agency (EPA) published a final rule on February 28, 2003, promulgating standards for emissions of nitrogen oxides (NOx) for the largest category of new marine diesel engines on domestic vessels. The EPA declined, however, to regulate such emissions for foreign vessels in American territory, deciding instead to wait until a future rulemaking to consider the matter again. The EPA bases its discretion not to regulate foreign vessels on its authority to interpret the meaning of “new marine engine” to exclude engines not made or imported into the United States. The EPA's reason for not regulating has much less to do with a reasonable interpretation of what constitutes a “new” engine than with concerns over international negotiations over MARPOL Annex VI standards. The decision to forego regulation of foreign vessels is problematic given the deleterious health effects of NOx emissions, the authority under international law to regulate air pollution as a condition of entry into U.S. territory, Congress's mandate that the EPA regulate significant sources of NOx emissions, and the EPA's finding that foreign-flagged vessels are a far more significant source of NOx emissions than the domestic vessels it chose to regulate.
The EPA defends its restriction of Clean Air Act regulation to domestic vessels on several grounds: (1) by reference to uncertainty as to the legality under international law of applying Clean Air Act standards as a condition of entry into U.S. ports, (2) by reference to the expected voluntary adoption of MARPOL Annex VI standards by vessel engine manufacturers, (3) by reference to its discretion in defining the ambiguous term “new” engine, and (4) by reference to ongoing political negotiations for international standards. This Comment posits that none of the bases for the EPA's refusal are convincing or even acceptable under the mandate imposed by Congress on the EPA pursuant to section 213 of the Clean Air Act. This Comment analyzes the reasons offered by the EPA for its refusal to regulate NOx emissions from foreign vessels, looking first to the issues of health effects and international law, then focusing on the EPA's authority to regulate foreign vessels under the Clean Air Act, and finally, analyzing whether the decision to regulate is discretionary or a mandatory duty.
About the Author
Clay J. Garside. J.D. candidate 2005, Tulane University School of Law; M.A. 1997, University of South Alabama; B.A. 1995, Spring Hill College.
Citation
79 Tul. L. Rev. 779 (2005)