The Political Consequences of Legal Victories: Ballast Regulation and the Clean Water Act

Date01 February 2010
Author
40 ELR 10154 ENVIRONMENTAL LAW REPORTER 2-2010
The Political
Consequences of
Legal Victories:
Ballast Regulation
and the Clean
Water Act
by Zdravka Tzankova
Zdravka Tzankova is an Assistant Professor in
the Department of Environmental Studies at
the University of California, Santa Cruz.

Federal conservation policy has seen a new development
recently: the use of the Clean Water Act (CWA) as a
tool for regulating ballast water discharges from ships
and, thereby, for preventing biological invasions caused
by the discharge of nonindigenous organisms in bal-
last. Some outcomes of this new method for regulating
ballast water discharge are obvious, and superimpos-
ing CWA regulatory authority on an a lready existing
system of U.S. ballast law and regulation is likely to
change the politics of ballast regulation. What do such
changes in regulatory politics spell for the future of reg-
ulatory protections against biological invasions caused
by discharge of untreated or insuciently treated bal-
last water, and for the future of conservation?
On July 23, 2008, the U.S. Court of Appeals for the
Ninth Circuit ordered the U.S. Environmental
Protection Agency (EPA) to discontinue a long-
standing regulatory exemption and start controlling ship
discharges of ballast water under the national pollutant dis-
charge elimination system (NPDES) of the Clean Water Act
(CWA).1
Given that ships’ ballast water is one of the largest mech-
anisms for transporting organisms beyond their historic
ranges, and so one of the most signi cant causes of aquatic
and marine bioinvasions, and given that bioinvasions are
one of the biggest contemporary threats to biodiversity,2 this
legal development suggests an important environmental vic-
tory. What the Ninth Circuit decision eectively does is to
subject a critical source of ecological degradation to the regu-
latory authority of one of the oldest and most widely success-
ful U.S. environmental statutes.
Judicial armation of CWA authority over ship dis-
charges of ballast water did not come in the context of a prior
regulatory vacuum, however. CWA authority was superim-
posed over an already existing system of dedicated federal
ballast law and regulation—a s ystem that had evolved over
19 years of policy negotiation and interest group contesta-
tion, and one which is partially augmented by some state bal-
last controls aimed at lling the gaps in invasion prevention
that have been left by the federal regulatory compromise.3
e Ninth Circuit ru ling was, in fact, the culmination
of targeted lega l entrepreneurship by a coalition of environ-
mental nongovernmental organizations (NGOs), who saw in
the CWA an opportunity to achieve what a series of legisla-
tive eorts had previously failed to produce: a stricter, more
comprehensive, more technologically innovative, and better-
enforced statutory system for controlling vessel discharges
of ballast and preventing ballast-mediated aquatic invasions.
e recent court ruling, in other words, is the result of an
NGO endeavor to improve invasion prevention by muster-
ing a well-established and well-functioning statutory instru-
ment, rather than going through t he dicult and uncerta in
process of seek ing improvements through further congres-
sional action.
At the same time, a close analysis of issue dynamics sug-
gests that the apparent practical and strategic advantages
oered by a CWA approach to managing t he invasion risks
from bal last may be at least pa rtly oset by the reluctance
of EPA, as the key implementing Agency, to get involved in
regulating vessel discharges.
1. 33 U.S.C. §§1251-1387 (2007), ELR S. FWPCA §§101-607; Nw. Envtl.
Advocates v. EPA, 537 F.3d 1006, 38 ELR 20183 (9th Cir. 2008). e EPA
regulatory exemption, which the court declared to be in violation of statutory
mandates set by the CWA (33 U.S.C. §1342), is found in 40 C.F.R. §122.3(a)
(2009).  notes 100-08 and accompanying text.
2.  notes 4-17 and accompanying text.
3.  notes 22-64 and accompanying text.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
2-2010 NEWS & ANALYSIS 40 ELR 10155
In this context, the present Article traces the practica l
conservation implications of the recent NGO legal vic-
tory, examining the extent to which, and the mechanisms
through which, introduction of the CWA into the regula-
tory landscape for ballast is likely to improve on-the-ground
invasion prevention. In doing so, however, the Article does
not stop at examining the statutory potential of the CWA
as a tool for managing invasion risks from ballast; nor does
it stop at commenting on the most obvious initial outcomes
of ba llast regulation under the CWA—namely, t he multi-
ply decient and largely devoid of conservation-value-added
NPDES Vessel General Permit ( VGP) recently issued by
EPA. Rather, the Article goes on to analyze the political and
practical consequences of the NGO legal victory, showing
why introduction of the CWA is likely to prompt strategic
recalculation of priorities among major ballast policy stake-
holders (most notably the shipping industry), and examining
the practical implications of these changes in the politics of
ballast regulation.
e Article a rgues that the most signicant conservation
benet of the NGO legal victory may ultimately be an indi-
rect one—that of opening a possibly unprecedented policy
opportunity window for the negotiation of strong and com-
prehensive federal legislation specically dedicated to ballast
control. In particular, the Ar ticle argues that such a policy
opportunity window is likely to emerge because ballast regu-
lation under the CWA—regulation that comes in the form
of an NPDES VGP—creates potentially major regulatory
hassles, threats, and uncertainties for the shipping industr y,
and it does so regardless of the current VGP failings when
it comes to improving preexisting levels of invasion preven-
tion. What the analysis ultimately suggests, in other words,
is that the very introduction of CWA-based controls on bal-
last discha rges should give the shipping industry important
incentives to seek alternative ways of ballast regulation and
to make signicant compromises with respect to the scope
and stringency of such alternative regulation—as long as the
new legal and regulatory regime can promise to set CWA
authority aside.
e next section briey introduces the problem of bio-
logical invasions and explains ship ballast water and its role
as a major cause of aquatic species invasions in the United
States and worldwide. Section II describes the landscape of
U.S. ballast regulation as it stood prior to the a ssertion of
CWA authority over vessel discharges of ballast. Specically,
it discusses the key elements of federal and state controls on
ballast discharges and highlights the principal shortfalls of
these controls when it comes to preventing ballast-mediated
aquatic bioinvasions. is section also highlights the strate-
gic value of somewhat disparate state ballast controls, whose
proliferation has softened t he shipping industr y’s attitudes
toward federal regulation of ballast. Section III examines the
statutory promise of the CWA when it comes to controlling
ballast discharges. It is specically focused on what statu-
tory language and the history of statutory implementation
suggest regarding the ability of the CWA to reduce invasion
risks from ballast beyond what preceding regulations have
already accomplished, and it briey summa rizes the NGO
legal campaign designed to capitalize on the CWA promise.
Section I V exa mines t he specic provisions of the recently
issued NPDES VGP. Section V, in turn, analyzes the practi-
cal implications of ballast regulation under the CWA, asking
whether there is conservation value-added in the newly insti-
tuted NPDES permitting for balla st discharges, a nd tracing
the somewhat unexpected sources of such value. e most
important insights of this Article’s analysis are concentrated
in Section V. e nal sect ion then briey draws together
the political and practical (conservation) implications of the
NGO legal victory that forced EPA to regulate ballast water
under the CWA.
I. Ballast Water and Biological Invasions
A European green crab, an Asian clam, a Japane se shore
crab, and a vast number of other non-native species can
presently be found in dierent locations along the U.S.
coast. Similar in their exotic, transoceanic origin, and in their
potential to disrupt ecosystem dynamics at the place of intro-
duction, many such species have nonetheless come to be
regarded as a reg ular part of t he coast al aquatic landscape.
Biological invasions, also referred to as alien, invasive, nonin-
digenous, and non-native species, a re dened as any species
or other viable biological material that enters an ecosystem
beyond its historic ra nge, including any such organism
transferred from one country into another.4 Accelerating in
incidence and rates, biological invasions are a major compo-
nent of both global and local environmental change, a major
threat to coasta l biodiversity, and, increasing ly, a source of
signicant economic damage and human health threats.
All bioinvasions are caused by the transfer a nd release of
organisms beyond their historic ranges. Ships’ ballast is one
of the largest and most signicant mechanisms for human-
4.  N’ R C, S  T: C I-
  N S  S’ B W 11 (1996).
Nonindigenous, invasive, exotic, etc., are not ecologically equivalent con-
cepts, and some of them do not have precise ecological denitions and/or
are eschewed by ecologists for various reasons, such as avoiding the accidental
introduction of normative bias seen to reside in some of the terminology com-
monly used to describe the phenomenon of nonindigenous species transfer
and biological invasions. , J T. C, P O C’,
I S  U.S. C W: E I
 M P iii (2001). In the media and much policy lit-
erature, the concepts are often used interchangeably, and they will be used in
this way for the purposes of the present Article, where the nature and signi-
cance of the more nuanced distinctions between various ecological concepts
to describe dierent types of species translocation is beyond the relevant scope
of discussion.
Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.

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