California Set to Expand At-Berth Rules

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California is in the final stages of adopting the latest regulation to impose its own air quality rules upon ocean-going vessels calling in the state. On Aug. 27, 2020, the California Air Resources Board (CARB) approved the Control Measure for Ocean-Going Vessels At Berth. This rule requires almost all container, reefer, cruise, ro-ro and tanker vessels visiting larger marine terminals in California to use a CARB-approved emissions control strategy that achieves at least an 80 percent reduction in auxiliary engine emissions during a visit at berth. Most vessels will have to use shore power, although alternatives, such as an emissions capture and control system or another onboard emissions control strategy, could be available. The regulation, which supersedes and significantly expands an existing 2007 rule, is awaiting submission to the Office of Administrative Law and final approval. It is currently planned to be implemented in January 2021.

The new regulation is complex and complicated, and there are questions about its feasibility. It is unclear whether California marine terminals have the capability to comply with the regulation's requirements for new infrastructure and whether they can accommodate increased shore power or provide land-based capture and control devices. There are industry worries about the broader effects of the regulation, including concerns about increases in port costs and the potential diversion of cargoes to non-California ports. Serious issues have been raised about some of the specific provisions of the regulation, including questions about the achievability of the compliance deadlines, particularly for tankers, and the feasibility and safety of capture and control technologies for some vessels. Some in the marine industry have also commented about aspects of CARB's justification for the rule, particularly the predictions of vessel traffic based on pre-pandemic data.

California has a history of forging ahead with its own air quality rules and standards, including, over the past two decades, entering the field of regulating marine vessels. In 2009, California adopted the Vessel Fuel Rules, which require ocean-going vessels operating in California and within 24 nautical miles of the California coast to use marine gas oil or a diesel fuel with specific sulfur limits that are more stringent than federal standards. Such a regulation, like the current At-Berth Rule, is considered to be an "in–use requirement" that is not preempted by the Clean Air Act. But California has gone beyond merely regulating vessels use. Since 2007, the state has imposed emissions standards that go beyond federal requirements by mandating the type of engines that are permitted on commercial harbor craft. In so doing, CARB has taken advantage of a specific exemption granted to California to adopt its own standards, provided that it obtains specific authorization from the U.S. Environmental Protection Agency (EPA).

California is not insulated from court challenges to its regulations on preemption grounds, including under the dormant Commerce Clause and general maritime law preemption. But there are no signs that CARB is reluctant to continue regulating marine commerce. The upcoming At-Berth Rule appears to be part of a continuing trend.

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.

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