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State will ask court to block EPA fuel rule

TIM BRADNER, ALASKA JOURNAL OF COMMERCE

State Attorney General Micheal Geraghty said the state will file for a federal court injunction soon to block a new federal coastal Emissions Control Area, or ECA, that extends 200 miles seaward from Alaska’s shores.

The request will be made to a U.S. District Court in Anchorage.

The state also filed an amended complaint on a lawsuit filed earlier this summer in the court over the imposition of the ECA, which went into effect Aug. 1.

The attorney general said he will ask for an injunction to halt enforcement by the U.S. Environmental Protection Agency of federal rules that require use of higher-cost low-sulfur fuels in ships serving Alaska from the U.S. Pacific Northwest.

“Alaska relies on marine shipping for the majority of its goods and tourism, and higher costs in shipping means higher prices at the store and potential job losses,” Geraghty said.

Geraghty would not say when the request would be filed in the Alaska U.S. District Court, but said it would be soon.

The state is challenging the ECA on two fronts, the attorney general said. One is that the emissions control zone off Alaska was put in place indirectly, as a result of an international treaty, and not through normal procedures with the force of U.S. law or regulation.

The U.S. has long been a party to the International Convention for the Prevention of Pollution from Ships which works to set international pollution-control standards for marine shipping, the state said in its lawsuit brief.

The ECA came about, however, through an amendment to the treaty that became effective when member nations, including U.S. Secretary of State Hillary Clinton, failed to object to it.

Alaska argues in its lawsuit suit that the ECA off Alaska is illegal because Congress has taken no action to create the emissions control area and EPA has done no formal rulemaking.

Federal law, in this case, cannot be created unilaterally by the U.S. Secretary of State without Congress having approved the provision, Alaska Assistant Attorney General Seth Beausang said.

The lack of air quality monitoring by the EPA to justify the ECA off Alaska’s coasts is a second point of contention by the state in. EPA did do air quality monitoring off the U.S. west coast but not in Alaska, according to the state’s legal brief.

The only justification EPA cited in its decision to extend the ECA to Alaska was a memo from a state employee who cited a 2007 study claiming damage to lichen on Mt. Roberts, a mountain near Juneau, caused by sulfur pollution from cruise ships in Juneau’s harbor, the state’s brief said.

The state said EPA has acknowledged that it has no coastal air quality monitoring data beyond the contiguous Lower 48 states, the state said. Gathering air quality data is typically the first step in establishing air emissions controls.

State officials also said the ECA was established in a capricious way in that it affects only coastal waters off southeast and Southcentral Alaska and ends just west of Cook Inlet, near Anchorage.

Large areas of Southwest Alaska including several communities and Umnak Pass in the Aleutians, a key transit point for cargo ships travelling from Asia to the U.S. west coast on the North Pacific great circle route, are outside the ECA.

Shipping industry officials also complain that EPA has also offered no scientific justification in pollution prevention for extending the ECA to 200 miles.

“If the ECA were just 40 miles or 50 miles off the coast all of the environmental benefits would be realized and it would allow shipping companies to travel outside of the control area,” said Ralph Samuels, a vice president for Holland America Line, a cruise company serving Alaska.

The 200-mile extension appears to be a matter of convenience for EPA, possibly because it matched the 200-mile limit of U.S. fisheries regulation off its coasts, Samuels said.

Ocean carriers serving Alaska have estimated that higher costs of low-sulfur fuels required under the ECA could cause them to raise tariffs for shipping by about 10 percent.

Holland America Lines has estimated that the 1 percent sulfur fuels now required under the ECA has raised its fuel costs 40 percent and that after emission standards tighten further in 2015 a 0.1 percent sulfur fuel required then would raise fuel costs by about 70 percent, Samuels said.

The major problem affecting shipping to and from Alaska is that vessels are within the 200-mile ECA off the U.S. western coast, and Canada as well, during all of their voyage from U.S. Northwest ports to Anchorage, the state’s major port.

That means the ships must use low-sulfur fuel for their entire round trip, a distance of approximately 3,000 miles.

Vessels from foreign ports, in contrast, enter the ECA only as they approach U.S. shore, in the last 500 miles of the trip, and can then switch to low-sulfur fuels.

Canada is expected to impose its own version of the ECA late this year, Beausang, the assistant state attorney general, said. If the court enjoins the EPA in enforcing the emissions rule off Alaska but Canada goes ahead with its own plan, also to 200 miles, it would still leave a portion of ships’ Alaska voyages affected.

Beausang said he hopes that if the court orders EPA to go back to the drawing board on its emissions rule Canadian authorities may follow suit with their own rule.

Tim Bradner can be reached at tim.bradner@alaskajournal.com.

Read more: http://www.alaskajournal.com/Alaska-Journal-of-Commerce/September-Issue-5-2012/State-will-ask-court-to-block-EPA-fuel-rule/#ixzz28AO8RT6z

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