North american panel october 22 2007
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NORTH AMERICAN PANEL OCTOBER 22, 2007. UPDATE ON LEGAL MATTERS JOSEPH ANGELO DEPUTY MANAGING DIRECTOR. LAWSUITS. MASSACHUSETTS LAWSUIT BALLAST WATER LAWSUIT EUROPEAN SHIP SOURCE POLLUTION DIRECTIVE CARB AIR EMISSION REGS. LEGAL.

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NORTH AMERICAN PANEL OCTOBER 22, 2007

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North american panel october 22 2007

NORTH AMERICAN PANEL OCTOBER 22, 2007

UPDATE ON LEGAL MATTERS

JOSEPH ANGELO

DEPUTY MANAGING DIRECTOR


Lawsuits

LAWSUITS

  • MASSACHUSETTS LAWSUIT

  • BALLAST WATER LAWSUIT

  • EUROPEAN SHIP SOURCE POLLUTION DIRECTIVE

  • CARB AIR EMISSION REGS


Legal

LEGAL

  • AUGUST 2004 – MASSACHUSETTS PASSES STATE LAW REGULATING SHIP DESIGN AND OPERATIONS

  • JAN 2005 – US FEDERAL GOVT TAKES MASS TO COURT - STATE LAW PREEMPTED BY FEDERAL LAWS/REGS

  • FEB 2005 – INDUSTRY COALITION JOINS FEDERAL GOVERNMENT


Mass lawsuit

MASS LAWSUIT

  • JULY 2006 - FEDERAL COURT RULES PROVISIONS OF MASS LAW INVALID

  • DECISION UPHOLDS COAST GUARD AUTHORITY OVER VESSEL OPERATIONS IN US WATERS

  • REINFORCES UNANIMOUS US SUPREME COURT DECISION IN 2000 WHEN INTERTANKO TOOK STATE OF WASHINGTON TO COURT


Mass lawsuit1

MASS LAWSUIT

  • SEPT 2006 - MASS FILES NOTICE TO APPEAL FEDERAL COURT DECISION

  • DECEMBER 2006 - MASS FILES APPEAL

  • FEBRUARY 20, 2007 - FEDERAL GOVTAND INDUSTRY COALITION SUBMIT RESPONSE TO MASS APPEAL

  • MAY 8, 2007 - ORAL ARGUMENTS HEARD BY COURT OF APPEALS


Mass lawsuit2

MASS LAWSUIT

ISSUES APPEALED BY MASSACHUSETTS:

- TUG ESCORT REQUIREMENTS;

- MANNING REQUIREMENTS; AND

- FINANCIAL RESPONSIBILITY LEVEL, BUT ALLOW THE STATE TO REDUCE THE LEVEL BASED ON COMPLIANCE WITH OTHER REQUIREMENTS


Mass lawsuit3

MASS LAWSUIT

JUNE 2007 – APPEALS COURT DECISION:

  • OVERTURNS DISTRICT COURT DECISION THAT THREE PROVISIONS WERE INVALID

  • HOWEVER, DOES NOT DECLARE THE THREE PROVISION VALID

  • MANDATES FURTHER ANALYSIS OF THE LEGALITY OF THE THREE PROVISIONS BE PERFORMED BY DISTRICT COURT

  • LIFTS INJUNCTION AGAINST ENFORCEMENT

  • DIRECTS PARTIES TO NEGOTIATE INTERIM AGREEMENT ON ENFORCEMENT


Mass lawsuit4

MASS LAWSUIT

  • MASS HAS REBUFFED EFFORTS TO REACH AGREEMENT ON ENFORCMENT

  • MASS DEP NOT AGRESSIVELY ENFORCING THE THREE PROVISIONS

  • INTERTANKO ADVISES MEMBERS TO COMPLY WITH MASS REQUIREMENTS

  • OCTOBER 15 – STATUS CONFERENCE OF PARTIES TO REVIEW APPEALS COURT DECISION


Ballast water lawsuit

BALLAST WATER LAWSUIT

  • IN 2004 ENVIRONMENTAL GROUPS TAKE US EPA TO COURT FOR NOT REGULATING BALLAST WATER DISCHARGES

  • MAIN REASON IS THAT THEY ARE UPSET WITH SLOW PROGRESS OF USCG IN REGULATING BALLAST WATER DISCHARGES

  • JUNE 2005 – INDUSTRY COALITION JOINS FEDERAL GOVT IN LAWSUIT


Ballast water lawsuit1

BALLAST WATER LAWSUIT

  • SEPT 2006 FEDERAL COURT ORDERS EPA TO DEVELOP REGS FOR ALL SHIP DISCHARGES, INCLUDING BALLAST WATER, UNDER NPDES PERMIT SYSTEM NO LATER THAN SEPT 2008

  • JUDGE ACKNOWLEDGES THAT USCG HAS AUTHORITY UNDER CERTAIN LAWS, BUT BELIEVES CONGRESS ALSO GAVE AUTHORITY TO EPA UNDER THE CLEAN WATER ACT


Ballast water lawsuit2

BALLAST WATER LAWSUIT

  • EPA DISAGREES WITH COURT DECISION WHICH WILL HAVE A SIGNIFICANT IMPACT ON EPA

  • NOVEMBER 2006 – FEDERAL GOVT AND INDUSTRY COALITION FILE NOTICESOF INTENT TO APPEAL COURT ORDER

  • MARCH 2007 – FEDERAL GOVT AND INDUSTRY COALITION FILE APPEALS

  • AUGUST 2007 – ORAL ARGUMENTS HEARD BY APPELLATE COURT


Ballast water lawsuit3

BALLAST WATER LAWSUIT

INDUSTRY PRIORITIES IN US BWM LEGISLATION:

  • ESTABLISH SINGLE LAW THAT GOVERNS BALLAST WATER DISCHARGES IN US WATERS

  • ESTABLISH US COAST GUARD AS LEAD FEDERAL AGENCY

  • PREEMPT STATE REGULATIONS

  • MIRROR IMO TREATY REQUIREMENTS


Eu directive

EU DIRECTIVE

  • SEPT 2005 EU ISSUES “SHIP SOURCE POLLUTION” DIRECTIVE (2005/35/EC)

  • MEMBER STATES REQUIRED TO IMPLEMENT DIRECTIVE BY APRIL 2007

  • DIRECTIVE (CRIMINALIZES ACCIDENTAL POLLUTION) HAS TWO PROBLEMS:

    - CONTRADICTS MEMBER STATES’ TREATY OBLIGATIONS

    - LIABILITY TEST FOR “SERIOUS NEGLIGENCE” LACKS LEGAL CERTAINTY


Eu directive1

EU DIRECTIVE

  • INDUSTRY DOES NOT HAVE DIRECT ACCESS TO EUROPEAN COURT OF JUSTICE - ACTION MUST COME FROM MEMBER STATE

  • DEC 2005 INDUSTRY COALITION INITIATES LEGAL PROCEEDING IN UK HIGH COURT IN LONDON REQUESTING “JUDICIAL REVIEW”

  • OBJECTIVE IS TO HAVE UK COURT RULING TO REFER MATTER TO ECJ


Eu directive2

EU DIRECTIVE

IN JUNE 2006 UK JUDGE GRANTS REQUEST, REFERS 4 ISSUES TO ECJ:

  • CAN EU IMPOSE CRIMINAL LIABILITY WITH RESPECT TO DISCHARGES FROM FOREIGN SHIPS IN EEZ;

  • CAN EU EXCLUDE MARPOL DEFENSES FOR DISCHARGES IN A MEMBERS TERR. SEA

  • DOES IMPOSITION OF CRIMINAL SANCTIONS FOR DISCHARGES CAUSED BY “SERIOUS NEGLIGENCE” HINDER THE RIGHT OF INNOCENT PASSAGE

  • DOES “SERIOUS NEGLIGENCE” SATISFY LEGAL CERTAINTY


Eu directive3

EU DIRECTIVE

  • NOV 2006 - INDUSTRY COALITION FILED WRITTEN SUBMISSION TO ECJ

  • SUBMISSION HAVE ALSO BEEN FILED BY EC, EU COUNCIL, EU PARLIAMENT AND A NUMBER OF EU MEMBERS, SOME IN SUPPORT OF INDUSTRY AND OTHERS AGAINST

  • SEPTEMBER 25, 2007 - ORAL ARGUMENTS ARE HEARD BY THE ECJ

  • ECJ ADVOCATE GENERAL TO DELIVER OPINION ON CASE BY NOVEMBER 20


Air emissions carb

AIR EMISSIONS - CARB

  • JAN 1, 2007 – CARB REGS FOR AUX. ENGINES AND DIESEL ELECTRIC MAIN ENGINES IN EFFECT WITHIN 24 MILES OF CALIFORNIA

  • PMSA GOES TO FEDERAL COURT SEEKING INJUNCTIVE RELIEF

  • LAWSUIT ADDRESSES LIMITED ISSUES

    - 24 MILE JURISDICTION

    - FAILURE TO REQUEST EPA APPROVAL BECAUSE REGS ARE “IN USE” REQMTS


Air emissions carb1

AIR EMISSIONS - CARB

  • AUGUST 12 – DISTRICT COURT HEARING

  • AUGUST 30 – DISTRICT COURT RULING:

    - ENJOINS CA FROM ENFORCING REGS UNTIL APPROVAL RECEIVED FROM EPA

    - CARB REGS ARE NOT “IN USE” REQTS, THEY ARE “EMISSION STANDARDS” UNDER CLEAN AIR ACT

    - UNNECESSARY TO RULE ON 24 MILES


Air emissions carb2

AIR EMISSIONS - CARB

NEXT STEPS:

CALIFORNIA HAS THREE OPTIONS:

  • APPEAL DISTRICT DECISION TO CIRCUIT COURT OF APPEALS

  • SEEK EPA APPROVAL AS “EMISSION STANDARD” (COULD TAKE 2-3 YEARS TO GET APPROVAL)

  • ISSUE REGS AS “FUEL STANDARD”


Air emissions carb3

AIR EMISSIONS - CARB

  • CARB CURRENTLY DEVELOPING REGS TO REDUCE AIR EMISSIONS FROM MAIN DIESEL ENGINES (FUEL STANDARD?)

  • INDICATE THEY WOULD ISSUE PROPOSED RULES BY EARLY 2008

  • APRIL 2007 – CARB SENDS LETTER TO US EPA SUPPORTING US PROPOSAL TO IMO ON REVISION OF ANNEX VI


North american panel october 22 2007

THANK

YOU

WWW.INTERTANKO.COM


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