Shipping Industry Loses Legal Challenge to Ballast Water Discharge Permit

A federal appellate court in Washington, D.C. has rejected a legal challenge by the shipping industry to the permit issued by the Environmental Protection Agency for ships to discharge ballast water containing invasive species.  The permit, while issued by EPA, also contained conditions attached by state agencies under a provision in the Clean Water Act.  The shipping industry opposed these state conditions primarily because some – such as those of California, New York, and Michigan – are far more stringent than the federal requirements.  The D.C. Circuit held that EPA correctly issued the Clean Water Act permit including the state conditions.

NWEA had also challenged the EPA’s 2008 permit, on the basis that it is inadequate to control invasive species, but settled its claims earlier.  We also intervened in support of EPA in response to the shipping industry challenge to the state conditions.  Here is our brief.

EPA is working on a new Vessel General Permit, a draft of which has been issued.  As part of its effort, EPA asked its Science Advisory Board (SAB) to evaluate ballast water treatment technology.  The SAB issued a report without having fully evaluated all of the existing information on this technology.  California and New York provided excellent critiques of the SAB report.

EPA also asked the National Academy of Science (NAS) to review what level of invasive species control is necessary to protect the nation’s waters from new invasions.  The NAS panel managed to avoid answering the question, in essence saying that more invasive species need to be allowed into US waters, more invasions need to detected, more environmental destruction needs to occur before the distinguished scientists can determine what level of invasive species discharge would  protect US waters from invasive species.   This might sound like a bunch of scientists looking for more grant money.  It might sound like a bunch of scientists who have failed to discern that regulatory programs rely on useful input, not dodging the question.