The EPA’s Vessel General Permit for discharging ballast water has been rejected by a federal appeals court (opinion here) for failing to adequately protect the Great Lakes and other waters from invasive species. Ballast water discharges are subject to the federal Clean Water Act and the EPA’s prior rule exempting this source of pollution from regulation was previously struck down in Nw. Envtl. Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008). The EPA issued its first vessel general permit in 2008, but agreed to further study and regulate the problem. The EPA came back in 2013 with a general permit that would require some on-board treatment and management practices by ships to reduce the amount of biological pollution in ballast water discharges to the levels allowed by the International Maritime Organization (IMO). However, the EPA’s permit failed to consider on-shore ballast water treatment as a better option and exempted much of the Great Lakes shipping fleet from even these modest requirements.
Environmental organizations – the Natural Resources Defense Council, Northwest Environmental Advocates, the Center for Biological Diversity, and the National Wildlife Federation – filed numerous challenges to the EPA’s Vessel General Permit and the case was consolidated in the U.S. Court of Appeals for the Second Circuit in New York. The court sided with the environmental organizations on almost all claims. First, the court held that EPA should not have simply adopted the IMO standard, but instead should have explored all available technologies that could be used to better treat ballast water pollution. The EPA’s approach was backwards – rather than looking to the IMO standard and then requiring technologies to meet that standard, the Clean Water Act requires the EPA to set a new standard based on the best available technology.
The EPA’s flawed approach was evident in the agency’s failure to consider on-shore ballast water treatment. The agency disregarded its own technical panels and scientific advisors and limited itself to considering only on-board ballast water treatment options. The court found that on-shore treatment options could potentially be far more effective, and the agency failed to offer a sound basis for ignoring this option.
The court also rejected the EPA’s attempt to exempt lakers from most of the permit regulations. “Lakers” are ships that only ply Great Lakes waters, as opposed to the “salties” that enter the Great Lakes from oceans. The EPA and shipping industry (which intervened in the case) argued that lakers don’t introduce new invasive species into the Great Lakes and shouldn’t be subject to the same requirements. However, the court recognized that lakers can spread invasive species throughout the lakes, bringing them to more ports and waterways. And again, the EPA failed to justify its decision to treat lakers differently from salties when the same treatment technologies can be used by all vessels.
Finally, the court rejected the EPA’s weak standard for ensuring that the Great Lakes and other waters are not harmed by biological pollution. The Clean Water Act requires polluters to meet both technology-based standards and water quality standards. The court ruled that EPA should have set a strong water quality standard that would protect the Great Lakes from biological pollution, especially if the technology being used for treatment isn’t doing enough.
Instead of invalidating the EPA’s Vessel General Permit immediately, the court decided to allow the permit to remain in effect while the EPA goes back and does a proper job. The court thus remanded the permit back to the EPA with clear instructions to consider better technologies for ballast water treatment for both lakers and salties and to establish water quality based standards to ensure the Great Lakes and other waters are protected from invasive species.