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

• Date: 01 February 2010

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 already 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 system 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 ruling was, in fact, the culmination

of targeted legal 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 the dicult and uncertain

process of seeking 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 the invasion risks

from ballast may be at least partly 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 ballast regulation under the CWA—namely, the 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 argues 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 Article 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 discharges 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 sectionbrie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 assertion 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 the shipping industry’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 summarizes the NGO

legal campaign designed to capitalize on the CWA promise.

Section IV examines the 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 ballast discharges, and tracing

the somewhat unexpected sources of such value. e most

important insights of this Article’s analysis are concentrated

in Section V. e nal section 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 Japanese 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 regular part of t he coastal aquatic landscape.

Biological invasions, also referred to as alien, invasive, nonin-

digenous, and non-native species, are dened as any species

or other viable biological material that enters an ecosystem

beyond its historic range, 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, increasingly, a source of

signicant economic damage and human health threats.

All bioinvasions are caused by the transfer and 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.