Federal judge upholds state ballast water law

By Yvonne Swager

Correspondent

Lansing – A federal judge has confirmed that oceangoing ships
will have to continue to comply with Michigan’s new law regulating
ballast water discharge.

A lawsuit brought by members of the shipping industry
challenging the law has been dismissed because plaintiff claims
could not be substantiated.

Michigan’s law, effective Jan. 1, 2007, requires all oceangoing
ships to be certified regarding ballast water discharge at state
ports. Hundreds of invasive species are invading the Great Lakes,
and transfer in commercial vessels is thought to be a source. The
law is Michigan’s attempt at controlling invasion in the absence of
federal involvement.

Plaintiffs challenged the law with claims including violations
of the Due Process Clause of the 14th Amendment and of the
Supremacy and Commerce clauses of the U.S. Constitution.

In his 32-page opinion of the case, U.S. Judge John Feikens said
few facts were included in some of the claims, and he dismissed all
claims challenging the state law.

Requiring vessels to obtain permits regardless of whether they
dumped ballast water deprives them of their property without due
process of law, plaintiffs claimed.

‘It was clearly rational for Michigan to enact this statute,’
Feikens wrote. ‘I find no constitutional problem with a state
implementing a permit scheme to protect its ports that requires
payment of fees by each entity that uses its ports, including from
an entity that promises not to engage in the activity that directly
causes the ports harm.’

A claim of violation of the U.S. Supremacy Clause argued
regulation of ballast water discharge should be the province of the
federal and not state law. Feikens said federal laws allowed for
concurrent regulation between state and federal governments
regarding some environmental affairs.

‘If plaintiffs and like-situated bodies want to make the policy
argument that federal law should preempt all state regulation of
ballast water management, they are free to do so before Congress.
In the meantime, this court refuses to invalidate a state statute
by finding it preempted by a federal statute and regulations that
encouraged this very sort of state regulation with no basis but
plaintiffs’ arguments in political theory,’ he wrote.

Feikens concluded the claim that the ballast water statute
imposed undue burden on interstate commerce because of costs
associated with compliance also had no grounds.

‘While it may be possible that plaintiffs could show that the
burden placed on interstate commerce by this scheme outweighs any
benefits to the state, they cannot show that this de minimis burden
clearly exceeds the putative local benefits,’ Feikens wrote.

John Jamian, president of the Seaway Great Lakes Trade
Association, a plaintiff in the suit, told Michigan Outdoor News he
still maintains federal regulation is the most effective route to
regional invasive species control.

‘At the end of the day, we’re just trying to make sure eight
different states aren’t regulating eight different ways,’ Jamian
said.

According to Jamian, enactment of state laws will only slow
federal involvement on the issue. He said recent federal
legislation before the Senate Commerce Committee would have
established a new federal management program and provided a
solution to protecting the Great Lakes’ ecosystem without harming
shipping, but demands federal legislation not preempt state actions
have kicked federal priority to the back burner.

‘As the euro and yen are strong and the American dollar is weak,
it’s good for us in a sense that everything we make is a good deal
for other countries,’ Jamian said. ‘This law will hurt Michigan’s
ability to export.’

One company already has decided not to carry some loads out of
Michigan, he said, and no company manufacturing large goods is
going to want to do business here if it can’t transport.

Robert McCann, press secretary for the Michigan Department of
Environmental Quality, which issues ballast permits, agrees the
federal government has taken too long to enact ballast regulation,
even though 20 percent of the world’s fresh water is being affected
by invasive species.

‘There’s been discussion of it at the federal level, but one
bill wouldn’t take effect until 2013,’ McCann said. ‘Michigan
finally said ‘enough is enough.”

Quick action by other states may accomplish goals similar to
what federal legislation would achieve, and McCann said he is
optimistic more states will be getting involved.

‘Bills have been introduced in about five different states.
Ohio’s legislation almost mirrors Michigan’s,’ he said. ‘Now that
this suit has been dismissed, maybe they will follow through.’

Whether other states jump aboard, McCann said the potential of
losing the 4 percent of vessels currently not complying with
Michigan’s new law would pose no financial hardship for the
state.

‘The economic impact would be minimal, if anything at all,’ he
said. ‘I absolutely think Michigan did the right thing.’

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