New York State Supreme Court upholds strict new state regulations to control ballast water discharges and prevent invasive species in the Great Lakes

The following guest post is by Thomas Cmar, an attorney with the Natural Resources Defense Council’s Midwest office in Chicago.  Thom and NRDC have been at the front of the fight to protect the Great Lakes from invasive species, defending tough new state laws and advocating for a strong national policy.  Thom’s work recently resulted in a big win in the legal battle against invasive species when the New York State Supreme Court upheld that state’s strict new regulations to control ballast water pollution against the shipping industry’s challenge in Port of Oswego Authority v. Grannis.

The New York State Supreme Court (Albany County) recently dismissed a challenge to permit conditions to control discharges of ballast water containing invasive species from ocean-going vessels into the freshwater ecosystems of the Great Lakes.  Shipping interests had argued that New York State’s restrictions were both illegal under state law and unconstitutional, largely because they were stricter than those in U.S. EPA’s nationwide Clean Water Act general permit.  The Natural Resources Defense Council and National Wildlife Federation intervened and filed a brief supporting the state’s regulations.  The decision of Justice Robert Sackett in Port of Oswego Authority v. Grannis rejected the shippers’ arguments and upheld the state regulations, finding “[i]t is undisputable that ballast water on ocean-going vessels ... is a source of significant potential and actual biological pollution for the state’s water systems.”

Ballast water from ocean-going vessels has introduced over 180 different invasive species into the Great Lakes, and new species are arriving at a rate of one every six months.  The toll has been breathtaking.  The entire Lake Michigan ecosystem has been changed by invasive species.  The filtering of invasive mussels has, for the first time ever, allowed the lake floor to be carpeted with algae.  These conditions have helped the invasive round goby become the most numerous fish in the lake, while all but eliminating many of the native species.  In the 1980’s, high profile invasions by the zebra mussel and sea lamprey decimated local drinking water infrastructure and fishing industries.

No one disputes that the ongoing invasion of alien species presents a serious problem for the Great Lakes, and not just from an environmental perspective.  Alien species have already cost the Great Lakes economy billions of dollars.  Strict rules on discharge of ballast water don’t just protect the Great Lakes ecosystem, they also help defend multi-billion dollar tourism, fishing, and recreational boating industries.

The Albany court’s ruling upholds New York’s decision to join Michigan and California as leaders in the fight to protect our waterways.  Like those other two states, the New York rules require ships operating in New York waters to begin using technology to treat any ballast water they discharge to ensure that it does not cause any more invasions.  An expert panel convened by the State of California was unable to find any valid scientific basis to recommend a less stringent alternative.

Here at the Natural Resources Defense Council, we believe that it is time for the federal government to step up and join these trailblazing states.  U.S. EPA has both the legal authority and the obligation to make tough ballast water rules like those in New York, Michigan, and California the national standard.  We will continue to advocate, and when necessary litigate, at both the state and federal level to protect the world’s last great places, like the unique freshwater ocean that is the Great Lakes.