Pacific Merchant v. Cackette ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PACIFIC MERCHANT SHIPPING 
ASSOCIATION, a California Mutual
Benefit Corporation,
Plaintiff-Appellee,
v.
JAMES GOLDSTENE,* Executive No. 07-16695
Officer of the California Air
Resources Board,  D.C. No.
CV-06-02791-WBS
Defendant-Appellant,
OPINION
COALITION FOR CLEAN AIR, INC.;
NATURAL RESOURCES DEFENSE
COUNCIL, INC.; SOUTH COAST AIR
QUALITY MANAGEMENT DISTRICT;
CITY OF LONG BEACH,
Defendant-Intervenors-Appellants.

Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Argued and Submitted
February 12, 2008—San Francisco, California
Filed February 27, 2008
Before: Barry G. Silverman, M. Margaret McKeown, and
Richard C. Tallman, Circuit Judges.
*James Goldstene is substituted for his predecessor, Thomas Cackette,
as Executive Officer of the California Air Resources Board, pursuant to
Fed. R. App. P. 43(c)(2).
1737
1738 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
Opinion by Judge Silverman
PACIFIC MERCHANT SHIPPING v. GOLDSTENE 1739
COUNSEL
Nicholas Stern, Deputy Attorney General of the State of Cali-
fornia, Sacramento, California, for the defendant-appellant.
Barbara Baird, District Counsel, Diamond Bar, California;
David Pettit, Natural Resources Defense Council, Santa Mon-
ica, California; Jay M. Spillane, Spillane Shaeffer Aronoff
1740 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
Bandlow LLP, Los Angeles, California; Dominic T.
Holzhaus, Principal Deputy City Attorney for City of Long
Beach, Long Beach, California, for the intervenors-appellants.
Erich P. Wise, Flynn, Delich & Wise LLP, Long Beach, Cali-
fornia, for the plaintiff-appellee.
Janice K. Raburn, American Petroleum Institute, Washington,
DC; Kevin M. Fong, Pillsbury Winthrop Shaw Pittman LLP,
San Francisco, California, for the amicus.
OPINION
SILVERMAN, Circuit Judge:
On January 1, 2007, the California Air Resources Board
began enforcing state regulations, the “Marine Vessel Rules,”
limiting emissions from the auxiliary diesel engines of ocean-
going vessels within twenty-four miles of California’s coast.
The Pacific Merchant Shipping Association, a group of com-
panies that own or operate ocean-going vessels subject to the
Marine Vessel Rules, filed suit to enjoin their enforcement
because, they argue, the Rules are preempted by the Clean Air
Act, 42 U.S.C. §§ 7401-7671q, and the Submerged Lands
Act, 43 U.S.C. §§ 1301-1302. We affirm the district court’s
ruling that the Marine Vessel Rules are preempted by the
Clean Air Act and we reinstate that court’s injunction against
enforcement of the Marine Vessel Rules.
I. Facts
The Clean Air Act Amendments of 1990 created a scheme
for the regulation of emissions from nonroad sources such as
lawnmowers, bulldozers, locomotives, and marine vessels.
See Engine Mfrs. Ass’n v. U.S. Envtl. Prot. Agency, 88 F.3d
1075, 1078 (D.C. Cir. 1996) (“EMA”). The amendments gov-
PACIFIC MERCHANT SHIPPING v. GOLDSTENE 1741
erning emissions from nonroad sources reflect the basic struc-
ture of the Clean Air Act, which “makes the States and the
Federal Government partners in the struggle against air pollu-
tion,” but sought to avoid “an anarchic patchwork of federal
and state regulatory programs.” EMA, 88 F.3d at 1078, 1079
(quotation omitted). The 1990 amendments granted the fed-
eral government the authority to promulgate “regulations con-
taining standards applicable to emissions from . . . new
nonroad engines and new nonroad vehicles.” Clean Air Act
§ 213(a)(3), 42 U.S.C. § 7547(a)(3).1 On the other hand, Con-
gress expressly preempted state regulation of emissions from
new engines used in construction and farm equipment, new
engines smaller than 175 horsepower, and new locomotive
engines. Clean Air Act § 209(e)(1), 42 U.S.C. § 7543(e)(1).2
1
Section 213(a)(3) provides:
If the Administrator makes an affirmative determination under
paragraph (2) the Administrator shall, within 12 months after
completion of the study under paragraph (1), promulgate (and
from time to time revise) regulations containing standards appli-
cable to emissions from those classes or categories of new non-
road engines and new nonroad vehicles (other than locomotives
or engines used in locomotives) which in the Administrator’s
judgment cause, or contribute to, such air pollution. Such stan-
dards shall achieve the greatest degree of emission reduction
achievable through the application of technology which the
Administrator determines will be available for the engines or
vehicles to which such standards apply, giving appropriate con-
sideration to the cost of applying such technology within the
period of time available to manufacturers and to noise, energy,
and safety factors associated with the application of such technol-
ogy. In determining what degree of reduction will be available,
the Administrator shall first consider standards equivalent in
stringency to standards for comparable motor vehicles or engines
(if any) regulated under section 7521 of this title, taking into
account the technological feasibility, costs, safety, noise, and
energy factors associated with achieving, as appropriate, stan-
dards of such stringency and lead time. The regulations shall
apply to the useful life of the engines or vehicles (as determined
by the Administrator).
2
Section 209(e)(1) provides:
No State or any political subdivision thereof shall adopt or
1742 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
For other nonroad engines and vehicles, § 209(e)(2) of the
Clean Air Act allows California to seek authorization from
the EPA to adopt “standards and other requirements relating
to the control of emissions.” Id. § 7543(e)(2)(A).3 Section
209(e)(2) provides in pertinent part:
attempt to enforce any standard or other requirement relating to
the control of emissions from either of the following new non-
road engines or nonroad vehicles subject to regulation under this
chapter—
(A) New engines which are used in construction equipment or
vehicles or used in farm equipment or vehicles and which are
smaller than 175 horsepower.
(B) New locomotives or new engines used in locomotives.
Subsection (b) of this section shall not apply for purposes of this
paragraph.
3
Section 209(e)(2) provides:
(A) In the case of any nonroad vehicles or engines other than
those referred to in subparagraph (A) or (B) of paragraph (1), the
Administrator shall, after notice and opportunity for public hear-
ing, authorize California to adopt and enforce standards and other
requirements relating to the control of emissions from such vehi-
cles or engines if California determines that California standards
will be, in the aggregate, at least as protective of public health
and welfare as applicable Federal standards. No such authoriza-
tion shall be granted if the Administrator finds that—
(i) the determination of California is arbitrary and capricious,
(ii) California does not need such California standards to meet
compelling and extraordinary conditions, or
(iii) California standards and accompanying enforcement proce-
dures are not consistent with this section.
(B) Any State other than California which has plan provisions
approved under part D of subchapter I of this chapter may adopt
and enforce, after notice to the Administrator, for any period,
standards relating to control of emissions from nonroad vehicles
or engines (other than those referred to in subparagraph (A) or
(B) of paragraph (1)) and take such other actions as are referred
to in subparagraph (A) of this paragraph respecting such vehicles
or engines if—
PACIFIC MERCHANT SHIPPING v. GOLDSTENE 1743
In the case of any nonroad vehicles or engines other
than those referred to in subparagraph (A) or (B) of
paragraph (1), the Administrator shall, after notice
and opportunity for public hearing, authorize Cali-
fornia to adopt and enforce standards and other
requirements relating to the control of emissions
from such vehicles or engines if California deter-
mines that California standards will be, in the aggre-
gate, at least as protective of public health and
welfare as applicable Federal standards.
Id. § 7543(e)(2) (emphasis added). Other states can adopt reg-
ulations identical to California’s regulations approved by the
EPA. Id. § 7543(e)(2)(B). The Board has neither sought nor
obtained § 209(e)(2) authorization from the EPA for the
Marine Vessel Rules.
Nonetheless, on January 1, 2007, the California Air
Resources Board began enforcing the Marine Vessel Rules it
promulgated regarding the emission of particulate matter
(“PM”), nitrogen oxide (“NOx”), and sulfur oxide (“SOx”)
from ocean-going vessels on all waters within twenty-four
nautical miles of the California coast. Cal. Code Regs. tit. 13,
§ 2299.1(a), 2299.1(b)(1).4 The Marine Vessel Rules apply to
(i) such standards and implementation and enforcement are
identical, for the period concerned, to the California standards
authorized by the Administrator under subparagraph (A), and
(ii) California and such State adopt such standards at least 2
years before commencement of the period for which the stan-
dards take effect.
The Administrator shall issue regulations to implement this sub-
section.
4
Section 2299.1(a) provides: “The purpose of this section is to reduce
emissions of diesel particulate matter (PM), nitrogen oxides, and sulfur
oxides from the use of auxiliary diesel engines and diesel-electric engines
on ocean-going vessels within any of the waters subject to this regulation
(“Regulated California Waters”).”
1744 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
the emissions of “auxiliary diesel engines,” which are engines
“designed primarily to provide power for uses other than pro-
pulsion” and used for on-board electricity needs. Id.
§ 2299.1(d)(2). Such engines are typically powered by resid-
ual fuel, commonly called bunker fuel in the maritime indus-
try, which has an average sulfur content of 2.5 percent by
weight. The Rules provide, in pertinent part:
(e) Requirements.
(1) Emission Limits.
Section 2299.1(b)(1) provides:
(1) Except as provided in subsection (c), this section applies to
any person who owns, operates, charters, rents, or leases any
ocean-going vessel that operates in any of the Regulated Califor-
nia Waters, which include all of the following:
(A) all California internal waters;
(B) all California estuarine waters;
(C) all California ports, roadsteads, and terminal facilities (col-
lectively “ports”);
(D) all waters within 3 nautical miles of the California baseline,
starting at the California-Oregon border and ending at the
California-Mexico border at the Pacific Ocean, inclusive;
(E) all waters within 12 nautical miles of the California base-
line, starting at the California-Oregon border and ending at the
California-Mexico border at the Pacific Ocean, inclusive;
(F) all waters within 24 nautical miles of the California base-
line, starting at the California-Oregon border to 34.43 degrees
North, 121.12 degrees West, inclusive; and
(G) all waters within the area, not including islands, between
the California baseline and a line starting at 34.43 degrees North,
121.12 degrees West; thence to 33.50 degrees North, 118.58
degrees West; thence to 32.48 degrees North, 117.67 degrees
West; and ending at the California-Mexico border at the Pacific
Ocean, inclusive.
PACIFIC MERCHANT SHIPPING v. GOLDSTENE 1745
Except as provided in subsections (c), (g)
and (h), no person subject to this section
shall operate any auxiliary diesel engine,
while the vessel is operating in any of the
Regulated California Waters, which emits
levels of diesel PM, NOx, or SOx in excee-
dance of the emission rates of those pollu-
tants that would result had the engine used
the following fuels: [specified fuels omit-
ted].
Id. § 2299.1(e)(1) (emphasis added).5 In sum, the emissions of
any auxiliary diesel engine must not exceed “the emission
rates . . . that would result had the engine used the [specified]
fuels” with a sulfur content of no more than 0.5 percent by
weight. Id.
Compliance with the Marine Vessel Rules is presumed
where a vessel uses the specified fuels. Id. § 2299.1(e)(1)(C).
However, a vessel owner may also comply by “alternative
5
Section 2299.1(e)(1) provides in full:
(e) Requirements.
(1) Emission Limits.
Except as provided in subsections (c), (g) and (h), no person sub-
ject to this section shall operate any auxiliary diesel engine, while
the vessel is operating in any of the Regulated California Waters,
which emits levels of diesel PM, NOx, or SOx in exceedance of
the emission rates of those pollutants that would result had the
engine used the following fuels:
(A) Beginning January 1, 2007: 1. marine gas oil, as defined in
subsection (d); or 2. marine diesel oil, as defined in subsection
(d), with a sulfur content of no more than 0.5 percent by weight;
(B) Beginning January 1, 2010: marine gas oil with a sulfur
content of no more than 0.1 percent by weight.
(C) Compliance with subsection (e)(1) is presumed if the per-
son operates the regulated engine(s) with the fuels specified in
subsection (e)(1)(A) and (e)(1)(B).
1746 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
emission control strategies . . . [that] result in emissions . . .
that are no greater than the emissions that would have
occurred” using the specified fuels. Id. § 2299.1(g)(1)(A). The
Marine Vessel Rules exempt, among others, vessels travers-
ing the regulated waters but not entering or stopping at a port
in California and vessels owned or operated by a local, state,
federal or foreign government. Id. §§ 2299.1(c)(1),
2299.1(c)(3).
The Pacific Merchant Shipping Association (“PMSA”) is a
mutual benefit corporation organized to support the legisla-
tive, legal, and administrative interests of its members, who
are companies that own or operate ocean-going vessels sub-
ject to the Marine Vessel Rules. PMSA filed suit against the
Board in district court seeking to enjoin California from
enforcing the Marine Vessel Rules. PMSA argued that the
Marine Vessel Rules are invalid because the Board failed to
obtain the EPA authorization required by the Clean Air Act
prior to enforcing the Marine Vessel Rules, and the Sub-
merged Lands Act preempts application of the Marine Vessel
Rules outside of California’s boundary.
The district court granted PMSA’s motion for summary
judgment on PMSA’s Clean Air Act claim and did not rule on
the Submerged Lands Act claim. The district court held that
the Marine Vessel Rules are preempted by § 209(e)(2) of the
Clean Air Act because the regulations are emission “stan-
dards” and not so-called “in-use requirements” that merely
regulate how vehicles may be used. The district court found
the regulations to be emissions standards “[b]ecause the regu-
lations set numerical requirements for the reduction of emis-
sions relating to particular emissions rather than a fleet as a
whole.” Pac. Merch. Shipping Ass’n v. Cackette, No. S-06-
2791 (E.D. Cal. Aug. 30, 2007) (order granting summary
judgment).
The Board and intervening parties Natural Resources
Defense Council, Inc., Coalition for Clean Air, Inc., South
PACIFIC MERCHANT SHIPPING v. GOLDSTENE 1747
Coast Air Quality Management District, and the City of Long
Beach (collectively “Intervenors”) appeal the district court’s
decision. We previously stayed the district court’s order
enjoining enforcement pending appeal. Pac. Merch. Shipping
Ass’n v. Goldstene, No. 07-16695 (9th Cir. Oct. 23, 2007).
II. Analysis
We have jurisdiction to review the district court’s final
order granting summary judgment. 28 U.S.C. § 1291. A dis-
trict court order granting summary judgment is reviewed de
novo. See Padfield v. AIG Life Ins. Co., 290 F.3d 1121, 1124
(9th Cir. 2002). Summary judgment is proper if the record,
viewed in the light most favorable to the non-moving party,
discloses “that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see also Universal Health
Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir.
2004).
[1] The parties agree that the ocean-going vessels regulated
by the Marine Vessel Rules are nonroad vehicles for purposes
of Clean Air Act § 209. Marine vessels are not expressly pre-
empted under Clean Air Act § 209(e)(1). 42 U.S.C.
§ 7543(e)(1). For nonroad engines and vehicles not covered
by § 209(e)(1), Clean Air Act § 209(e)(2) creates a sphere of
implied preemption surrounding those regulations for which
California must obtain authorization. See EMA, 88 F.3d at
1087-88. The issue in dispute here is whether the scope of the
implied preemption of § 209(e)(2) includes the Marine Vessel
Rules. We hold it does.
The Board contends that since the Marine Vessel Rules
apply only to non-new engines, the Rules are not preempted
if § 209(e)(2) only applies to new engines. In 1996, the D.C.
Circuit directly addressed this issue when it considered
whether the EPA’s rules—which interpreted the implied pre-
emption of § 209(e)(2) to apply only to new engines—were
1748 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
entitled to deference under Chevron, U.S.A., Inc. v. NRDC,
Inc., 467 U.S. 837 (1984). EMA, 88 F.3d at 1082, 1084. After
an exhaustive review of the text and legislative history, the
D.C. Circuit held that the implied preemption of § 209(e)(2)
applies to both new and non-new engines. Id. at 1087-1093.
[2] The district court adopted the holding of the EMA
majority that the implied preemption of § 209(e)(2) applies
both to new and non-new engines. So do we, because it is
sound and because neither the EPA nor Congress has chal-
lenged the EMA holding in the nearly twelve years since it
was decided. Thus, we join the D.C. Circuit and hold that the
implied preemption of § 209(e)(2) applies to “any nonroad
vehicles or engines,” including new and non-new sources.
A. The Marine Vessel Rules are Emission Standards
[3] Section 209(e)(2)(A) of the Clean Air Act requires Cali-
fornia to obtain EPA authorization in order to adopt “stan-
dards and other requirements relating to the control of
emissions from [ ] vehicles or engines.” 42 U.S.C.
§ 7543(e)(2)(A). The key issue in this case is whether the
Marine Vessel Rules constitute “standards . . . relating to the
control of emissions from [ ] vehicles or engines,” and thus
are preempted, or whether the Rules are mere “in-use require-
ments” under § 209(d) that are not preempted. We hold that
they are standards.
[4] First, by their very terms, the Rules explicitly prohibit
the operation of auxiliary diesel engines “which emit[ ] levels
of diesel PM, NOx, or SOx in exceedance of the emission
rates” that would result from the use of certain fuels. Cal.
Code Regs. tit. 13, § 2299.1(e)(1). Those rates are susceptible
to precise quantification. As the Supreme Court made clear in
Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541
U.S. 246 (2004) (“SCAQMD”), this sort of regulation is a
“standard.” In SCAQMD, the Court considered whether regu-
lations that prohibited the purchase or lease of motor vehicles
PACIFIC MERCHANT SHIPPING v. GOLDSTENE 1749
that do not comply with certain emissions requirements were
preempted standards under § 209(a) of the Clean Air Act. 541
U.S. at 248-49. Although it defined “standard” under
§ 209(a), the Court indicated that its definition of “standard”
is applicable throughout Title II of the Clean Air Act, which
includes § 209(e). Id. at 254. Indeed, § 209(e) contains the
phrase “standard or requirement relating to the control of
emissions,” which is essentially identical to § 209(a)’s “stan-
dard relating to the control of emissions.”
The Court commenced its analysis by examining the ordi-
nary meaning of § 209(a) and turned to the dictionary, which
defines “standard” as “that which ‘is established by authority,
custom, or general consent, as a model or example; criterion;
test.’ ” Id. at 252-53 (quoting Webster’s Second New Interna-
tional Dictionary 2455 (1945)). The Court then expanded on
this definition:
The criteria referred to in § 209(a) relate to the emis-
sion characteristics of a vehicle or engine. To meet
them the vehicle or engine must not emit more than
a certain amount of a given pollutant, must be
equipped with a certain type of pollution-control
device, or must have some other design feature
related to the control of emissions. This interpreta-
tion is consistent with the use of “standards”
throughout Title II of the [Clean Air Act] (which
governs emissions from moving sources) to denote
requirements such as numerical emission levels with
which vehicles or engines must comply, e.g., 42
U.S.C. § 7521(a)(3)(B)(ii), or emission -control tech-
nology with which they must be equipped, e.g.,
§ 7521(a)(6).
Id. at 253.
The Marine Vessel Rules plainly fit within the SCAQMD
definition of “standards” as a requirement that a “vehicle or
1750 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
engine must not emit more than a certain amount of a given
pollutant.” 541 U.S. at 253. The Marine Vessel Rules require
that engines “not emit more than” the amount of diesel PM,
NOx, or SOx they would emit if using the specified fuels. Cal.
Code Regs. Tit. 13 § 2299.1(e)(1).
[5] It is no answer that the Marine Vessel Rules allow a
vessel operator to use the specified fuel to meet the standard.
The Marine Vessel Rules set a standard for engine emissions;
the means of compliance are irrelevant. See SCAQMD, 541
U.S. at 253 (“[S]tandards themselves are separate from . . .
enforcement techniques.”). Even if vessel operators may com-
ply with the Marine Vessel Rules by fuel switching, the emis-
sion limits set by the Marine Vessel Rules are analyzed
separately from these means of compliance. See id.
B. The Marine Vessel Rules are Not Mere “In-Use
Requirements.”
[6] Section 209(d) of the Clean Air Act reserves to the
states “the right . . . to control, regulate, or restrict the use,
operation, or movement of registered or licensed motor vehi-
cles.” 42 U.S.C. § 7543(d). Section 209(d) allows states to
impose so-called “in-use requirements,” including “carpool
lanes, restrictions on car use in downtown areas, and pro-
grams to control extended idling of vehicles.” EMA, 88 F.3d
at 1094 (citation omitted). The EPA interprets the Clean Air
Act to extend this allowance of in-use requirements to regula-
tions of nonroad engines. Preemption of State Regulation for
Nonroad Engine and Vehicle Standards, 59 Fed. Reg. 36,969,
36,973-74 (July 20, 1994). In EMA, the court held that “Chev-
ron deference permits the EPA’s interpretation . . . incor-
porat[ing] into the nonroad regime at least the reservation of
the states’ right to impose in-use regulations found in
§ 209(d).” EMA, 88 F.3d at 1094.
[7] The Board and Intervenors argue that the Marine Vessel
Rules are a permissible in-use requirement because the Rules
PACIFIC MERCHANT SHIPPING v. GOLDSTENE 1751
regulate the sulfur content of the fuel used by ocean-going
vessels. However, the plain language of the Rules regulates
emissions, not fuel. The Marine Vessel Rules create a limit on
emissions (i.e. emissions must not be greater than what would
be emitted using the specified fuels) that is presumed to be
met if the specified fuels are used. Cal. Code Regs. tit. 13
§ 2299.1(e). Supplying a presumed mode of compliance does
not alter the nature of the general requirement limiting emis-
sions. Indeed, the Marine Vessel Rules do not impose an in-
use fuel requirement because no particular fuel is required to
be used at all.
[8] In the end, Clean Air Act § 209(e)(2) preempts the
Marine Vessel Rules and requires California to obtain EPA
authorization prior to enforcement because the Rules are
“emissions standards” that require that engines “not emit
more than a certain amount of a given pollutant.” SCAQMD,
541 U.S. at 253. Because the Clean Air Act preempts here,
we, like the district court, find it unnecessary to decide
whether the Submerged Lands Act also preempts the state
rules at issue. We vacate the stay of the district court’s injunc-
tion previously imposed by our motions panel effective upon
issuance of the mandate.
AFFIRMED.