Noontime dumping: why states have broad discretion to regulate onboard treatments of ballast water.

• Author: Landis-Marinello, Kyle H.

Ballast water discharges from shipping vessels are responsible for spreading numerous forms of aquatic invasive species, a form of biological pollution that leads to billions of dollars in annual costs. In the wake of inaction from the federal government and inaction from the shipping industry, several Great Lakes states are currently considering legislation to address the problem. Michigan has already passed a law to prevent ballast water introductions of invasive species. As states begin to regulate ballast water discharges from oceangoing vessels, such laws will likely face challenges based on the constitutional principles of the Dormant Commerce Clause and the federal preemption doctrine of the Supremacy Clause. This Note contends that state ballast water laws do not violate either the Dormant Commerce Clause or the Supremacy Clause. States can regulate ballast water discharges without violating the Dormant Commerce Clause because state regulations in this area do not discriminate against interstate commerce, and, even if they did, courts allow discrimination in this context. Under the Supremacy Clause, federal law does not preempt state regulation of ballast water discharges. Although federal regulation of onboard equipment might impose some limitations on similar state regulations, federal law does not preempt states from preapproving certain methods for treating ballast water.

TABLE OF CONTENTS INTRODUCTION I. STATE BALLAST WATER LAWS DO NOT VIOLATE THE DORMANT COMMERCE CLAUSE A. State Ballast Water Laws Do Not Discriminate Against Interstate Commerce 1. Facial Discrimination 2. Having the Practical Effect of Discriminating B. State Ballast Water Laws Survive the Pike Test for Incidental Effects on Interstate Commerce C. State Ballast Water Laws Are Justified in Burdening Interstate Commerce 1. State Ballast Water Laws Serve a Legitimate Local Purpose 2. The Purpose Behind State Ballast Water Laws Could Not Be Served as Well by Nondiscriminatory Means II. FEDERAL PREEMPTION ANALYSIS A. Explicit Preemption B. Occupation of the Field Preemption 1. Federal Law Does Not Preempt State Ballast Water Laws that Focus on Discharges 2. Federal Law Preempts State Ballast Water Laws that Prescribe the Only Type of Onboard Equipment Ships Can Use 3. Federal Law Does Not Preempt State Ballast Water Laws that Specify the Equipment that is Preapproved Under a General Permit C. Conflict Preemption 1. Impossible to Comply with Both State and Federal Law 2. Frustration of Purposes CONCLUSION INTRODUCTION

Imagine someone opening a valve that dumps vast amounts of pollution into a body of water. Although that may sound like a "midnight dumping" operation, (1) these polluters do not hide what they are doing. They do their dumping in the middle of the day, and no one stops them. To make matters worse, imagine that this particular type of pollution never goes away. In fact, rather than breaking down over time, this type of pollution multiplies and travels long distances to pollute new areas of the body of water. Although federal and state governments have largely dealt with the problem of midnight dumping, they have given relatively little attention to discharges that happen in broad daylight.

Every year, shipping vessels discharge billions of gallons of ballast water--the water stored in large tanks in the bottom of a cargo ship to keep the ship at the proper weight--into the waters of the United States. (2) Because cargo ships are designed to travel with heavy loads, these ships can only maintain their proper balance by taking in ballast water as they unload cargo. (3) The ballast water often travels long distances before a cargo ship reloads, at which point the ship discharges the ballast water--and any invasive species that have hitched a ride--into the surrounding body of water.

Invasive species pose one of the largest environmental threats that our waterbodies have ever faced. (4) Once invasive species are introduced into a body of water, they can multiply and disrupt the entire ecological fabric of the area. (5) The primary reason that invasive species are able to wreak such widespread destruction is that many of them have no natural predators in the invaded area. (6) The delicate balance between predators and prey quickly becomes unbalanced in favor of the nonnative species. (7)

Introductions of invasive species have historically had a disproportionately large impact on the Great Lakes. To anyone who resides in one of the eight Great Lakes states (8) and keeps abreast of environmental issues, the mention of zebra mussels or sea lamprey will elicit a fiercely negative reaction. (9) And the worst might be yet to come, as the leaping Asian Carp and other strange science-fiction-like creatures, such as the snakehead fish, approach waterways that lie on the borders of the Great Lakes. In fact, Asian carp are already "at the door to the Great Lakes." (10) At a recent conference on the Great Lakes, Peter Annin cautioned that "if [Asian carp] get into the Great Lakes, [it] will change the Great Lakes more than sea lamprey and zebra mussels together." (11) According to one member of Congress, the Asian carp "could devastate the Great Lakes' multi-billion dollar fishing industry." (12)

Invasive species are extremely costly to the Great Lakes. To put numbers on the matter, "[t]he most comprehensive estimate of Great Lakes Basin economic and environmental costs, while [it] is based on a review of other studies, suggests annual costs of US$5.7 billion, including US$4.5 billion in damage to commercial and sport fishing." (13) Government officials agree that invasive species cost the Great Lakes region alone as much as five billion dollars every year. (14)

Over the last four decades, oceangoing vessels--specifically, cargo ships carrying ballast water--have been the main pathway for the introduction of invasive species. (15) Interestingly, these same oceangoing vessels bring just under fifty-five million dollars in annual economic benefits. (16) Comparing these benefits to the costs of invasive species shows that by allowing oceangoing vessels to ship cargo, society as a whole is arguably spending over ninety dollars for every dollar it gets back. (17) Thus, from an economic standpoint, unless this industry can take drastic measures to lower the costs of dealing with invasive species, society would benefit from the cessation of all oceangoing shipping in the Great Lakes. (18)

The United States currently has surprisingly few laws that address the problem of invasive species. Although the federal government has passed two laws to address ballast water introductions of invasive species, (19) neither measure has had much success. (20) Moreover, Congress has done nothing in the last ten years, despite numerous attempts by environmental groups and others to pass federal legislation requiring oceangoing vessels to refrain from discharging untreated ballast water. (21) The shipping industry has also failed to address this problem effectively, despite being on notice for many years that it was engaging in a dangerous and costly activity whenever it discharged ballast water. (22) In the wake of inaction from the federal government and from the shipping industry, several Great Lakes states are currently considering legislation to address the problem, (23) and Michigan has already passed a law to prevent ballast water introductions of invasive species. (24)

When a state decides to regulate ballast water discharges, it has several options. It might choose to ban these discharges altogether. In light of the enormous threat that invasive species pose to the Great Lakes, (25) it would not be surprising if one or more of the eight states bordering on these treasured waterways decided to impose such a ban. Nevertheless, given the general reluctance of most state legislatures to take what some would consider drastic measures when a more moderate approach is readily available, it is more likely that states will choose (as Michigan did) to ban the discharge of untreated ballast water. (26) The shippers can then continue to go about their business as usual, so long as they treat the ballast water before discharging it. Accordingly, Michigan's state ballast water law provides the following:

Beginning January 1, 2007, all oceangoing vessels engaging in port operations in this state shall obtain a permit from the [D]epartment [of Environmental Quality]. The department shall issue a permit for an oceangoing vessel only if the applicant can demonstrate that the oceangoing vessel will not discharge aquatic nuisance species or if the oceangoing vessel discharges ballast water or other waste or waste effluent, that the operator of the vessel will utilize environmentally sound technology and methods, as determined by the department, that can be used to prevent the discharge of aquatic nuisance species. (27) In response to this legislation, Michigan's Department of Environmental Quality recently approved a "General Permit" that allows shippers to use any one of four separate methods of treating ballast water. (28) Ultraviolet radiation and deoxygenation are two of the approved treatment methods. (29) The other two approved methods are biocide treatments--one involving hypochlorite, and the other involving chlorine dioxide. (30) Other Great Lakes states are likely to follow Michigan's model and ban the discharge of untreated ballast water, although the precise treatment methods in each state may differ. (31)

As states begin to regulate ballast water discharges from oceangoing vessels, such laws will likely face challenges based on the constitutional principles of the Dormant Commerce Clause and the federal preemption doctrine of the Supremacy Clause. In fact, representatives of the shipping industry and port authorities have already raised both of these claims in an effort to strike down Michigan's recently passed state ballast water laws. (32) This...