The U.S. Court of Appeals for the Sixth Circuit just issued a decision upholding Michigan’s ballast water statute and rejecting the shippers’ federal preemption and Constitutional challenges. The Michigan law, which took effect in January 2007, requires ships to obtain a state permit and, if the ships will discharge ballast water, to use specified technologies to prevent the introduction of invasive species into the Great Lakes. Several shipping companies, ports, and industry groups sued the state, alleging that the Michigan law is preempted by federal law and unconstitutionally interferes with interstate commerce.
Working with the Great Lakes Environmental Law Center, I filed an amicus brief on behalf of a bipartisan group of state lawmakers to support the legal authority of Michigan and other states to protect the Great Lakes from ballast water pollution. The state lawmakers represented by the Great Lakes Environmental Law Center are Michigan State Senator Patricia L. Birkholz (R) (the lead sponsor of the Michigan legislation), Minnesota State Senator Ann H. Rest (DFL), Illinois State Representative Karen May (D), Wisconsin State Senator Robert L. Cowles (R), and Wisconsin State Representative Jon Richards (D). A coalition of environmental and conservation organizations also intervened on behalf of the state.
In August 2007, Judge John Feikens of the U.S. District Court in Detroit rejected the shippers’ arguments and dismissed the suit in Fednav v. Chester, 505 F. Supp. 2d 381 (E.D. Mich. 2007). The U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, has now affirmed the district court’s ruling and rejected the shippers’ federal preemption and Constitutional challenges to the Michigan law.
The court’s decision began by noting the problem of invasive species in the Great Lakes and the federal government’s failure to provide an effective solution:
[T]he Coast Guard’s ballast-water regulations applicable to the Great Lakes have remained essentially unchanged since 1993. Vessels entering the Great Lakes carrying ballast water … must either conduct a mid-ocean ballast-water exchange before discharging ballast water into the Great Lakes, or retain their ballast water. [Vessels that claim to have no ballast on board] are essentially unregulated with respect to their ballast-water practices. They are thus free to take on ballast water in the Great Lakes, mix it with any sediment or residual water in their tanks, and then discharge the mixture into the Great Lakes.
The court first held that the industry plaintiffs lacked standing to challenge the new ballast water pollution control requirements, since the plaintiffs claimed to not even discharge ballast water in Michigan and thus would not be subject to the new technology requirements. The court also dismissed on standing grounds the challenge by the Great Lakes ports association, since the ports are not subject to the new statute – only their customers (the shippers) are. The only claims that were properly before the court were those of the shippers with respect to the new permit requirement. Environmental groups have learned the hard way to properly establish standing before a court or risk dismissal of their claims, but it seems that in this case the industry plaintiffs (and their attorneys) failed to learn the same lesson, and it cost them.
On the merits of the challenge to the new permit requirement, the court held that federal law does not preempt state action to stop the spread of invasive species in the Great Lakes. Rather, the court determined that:
Congress expressly contemplated [aquatic nuisance species] prevention measures – in the Great Lakes region no less – that are conducted by the states. Indeed, it encourages them. Federal law therefore does not preempt the field of aquatic nuisance species prevention measures.
The court went on to reject the shippers’ argument that it is “physically impossible” for shippers to comply with both Michigan’s permit requirement and federal law:
Pursuant to the permit requirement, owners of oceangoing vessels engaged in port operations in Michigan must pay $225 in fees and fill out several forms. None of those things is impossible.
The court also rejected the shippers’ claim the Michigan statute violated the Constitutional dormant commerce clause by burdening interstate commerce. In looking at the relative burden, the court recognized the huge problem of invasive species in the Great Lakes and the minimal costs imposed by the new permit:
To the extent the permit requirement even marginally reduces the problem of [aquatic nuisance species] introduction, its local benefits would be very large. In contrast, the burdens imposed by the permit requirement – an application fee of $75, a yearly fee of $150, and the completion of a few forms – are de minimis [a fancy legal term for ‘no big deal’].
The court further rejected the dormant commerce clause argument by explaining that the dormant commerce clause is just that – a dormant federal power. In this case, the commerce clause has not been dormant and subject to encroachment by Michigan and other states. Rather, in a federal statute:
Congress expressly contemplated, and indeed encouraged, state participation in [aquatic nuisance species] prevention measures. We would lose our constitutional bearings if we were to hold that the Commerce Clause, in its dormancy, strikes down state regulation that Congress, in actively exercising its power under the Clause, expressly contemplated.
The court finished its decision by simply stating:
Michigan, for undisputedly legitimate reasons, has enacted legislation of a type expressly contemplated by Congress. We have no basis to disrupt the result of those democratic processes.
This is yet another legal victory in the fight to stop invasive species nationwide. With this federal decision, it’s now clearly established that states have the authority to take legal action to control ballast water pollution. Other recent court decisions have established that ballast water pollution is subject to the federal Clean Water Act and that states have a legal obligation to protect their water from invasive species. Together, these cases should clear the way for strong regulatory action in the next year to finally slam the door shut on the spread of invasive species in the Great Lakes.