Sailing by Looking in the Rearview Mirror: EPA's Unreasonable Deferral of Ballast-Water Regulation to a Now Ineffective Coast Guard


[author: Liwen A. Mah]

Major structural changes in government since national security became a dominant priority threaten to undermine regulatory protections of the nation's environment. One troubling environmental threat is the introduction of invasive species, especially those introduced by ballast water discharged from ships arriving in U.S. ports. In 2003, the Environmental Protection Agency (EPA) denied a petition-four years after receiving it-that sought to repeal an EPA rule exempting ballast water from regulation under the Clean Water Act (CWA). Despite having authority to regulate ballast water under the CWA, the EPA decided that the Coast Guard should regulate ballast water. Yet the Coast Guard is no longer able to tackle the problem due to its focus on national security in the wake of the terrorist attacks of September 11, 2001.

The ballast water issue suggests, courts should not defer to an agency decision about its role relative to other agencies. Instead, courts should consider the legislative concept underlying the agency's authorizing statute and determine whether the agency's rationale is reasonable. Without this review by the judiciary, an agency might simply defer unpleasant or undesired regulatory tasks to a sister agency with no real power, leading to under-regulation.


Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Fenwick & West LLP | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.