1 of 4 DOCUMENTS

PACIFIC MERCHANT SHIPPING ASSOCIATION, Plaintiff-Appellant, v. JAMES

GOLDSTENE, in his official capacity as Executive Officer of the California Air

Resources Defendant-Appellee. NATURAL RESOURCES DEFENSE COUNCIL,

INC.; COALITION FOR CLEAN AIR, INC.; SOUTH COAST AIR QUALITY

MANAGEMENT DISTRICT, Defendant-Intervenors-Appellees.

No. 09-17765

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

2011 U.S. App. LEXIS 6239

December 9, 2010, Argued and Submitted, San Francisco, California

March 28, 2011, Filed

PRIOR HISTORY: [*1]

Appeal from the United States District Court for the

Eastern District of California. D.C. No.

2:09-cv-01151-MCE-EFB. Morrison C. England, Jr.,

District Judge, Presiding.

Pac. Merch. Shipping Ass'n v. Goldstene, 2009 U.S. Dist.

LEXIS 55516 (E.D. Cal., June 30, 2009)

DISPOSITION: AFFIRMED.

COUNSEL: Aleksandrs Drumalds & Erich Wise

(argued), Flynn, Delich & Wise, Long Beach, California,

for the appellant.

Nicholas Stern (argued), Office of the California

Attorney General, Sacramento, California; for appellee

James Goldstene; Melissa Lin Perrella & David Richard

Petit; National Resources Defense Council, Santa

Monica, California, for appellees National Resources

Defense Council, Inc. and Coalition for Clean Air, Inc.;

Barbara B. Baird (argued), South Coast Air Quality

Management District, Diamond Bar, California, for

appellee South Coast Air Quality Management District.

JUDGES: Before: Robert E. Cowen, * A. Wallace

Tashima, and Barry G. Silverman Circuit Judges.

Opinion by Judge Cowen.

* The Honorable Robert E. Cowen, Senior

United States Circuit Judge for the Third Circuit,

sitting by designation.

OPINION BY: Robert E. Cowen

OPINION

COWEN, Circuit Judge:

In this interlocutory appeal, Plaintiff Pacific

Merchant Shipping Association ("PMSA") appeals from

the District Court's denial of its motion for summary

judgment in its action against [*2] Defendant James

Goldstene, the Executive Officer of the California Air

Resources Board ("CARB"). PMSA has challenged, on

federal statutory and constitutional grounds, California

fuel use regulations (known as the "Vessel Fuel Rules")

insofar as they purport to apply to sea-going vessels

located more than 3 miles from the California coast. We

will affirm.

I.

On April 16, 2009, CARB transmitted the "Vessel

Fuel Rules" to the California Secretary of State for filing

pursuant to state law, and the regulations went into effect

as planned on July 1, 2009. As the District Court noted,

Page 1
the express purpose of the Vessel Fuel Rules "is to reduce

air pollutants affecting the State of California by

requiring ocean-going vessels to use cleaner marine

fuels." (ER24 (footnote added).) The regulations were

adopted only after a lengthy process that included

consultation with the public, state and local agencies, and

the federal government.

The Vessel Fuel Rules mandate that vessel operators

"use cleaner marine fuels in diesel and diesel-electric

engines, main propulsion engines, and auxiliary boilers

on vessels operating within twenty-four nautical miles off

the California coastline." (Id. (citing Cal. Code Regs. tit.

13, § 2299.2(a); [*3] Cal. Code Regs. tit. 17, §

93118.2(a)).) Specifically, the regulations apply to a

geographical region known as "Regulated California

Waters," which includes the waters within 24 nautical

miles of the state's shoreline. Cal. Code Regs. tit. 13, §

2299.2(b); Cal. Code Regs. tit. 17, § 93118.2(b). This

area evidently encompasses approximately 14,000 square

miles of ocean beyond the 3-mile zone immediately

adjacent to the coast. In general, the Vessel Fuel Rules

only cover vessels calling at a California port, and they

accordingly contain an express exemption for vessels

simply traveling through the region (known as "innocent

passage"). There are two phases of implementation: (1)

"Initially, beginning in July 2009, vehicle operators must

use either marine gas oil (which typically averages 0.3%

sulfur and is capped at 1.5%), or marine diesel oil with a

sulfur limit of 0.5% or less;" and (2) "Thereafter, by

January 2012, both fuels must not exceed 0.1% sulfur."

(ER24 (citing Cal. Code Regs. tit. 13, § 2299.2(a); Cal.

Code Regs. tit. 17, § 93118.2(a)).) The regulations also

require vessel owners and operators to keep detailed

records, and non-compliance could subject such owners

and operators [*4] to a wide range of sanctions,

including fines, injunctive relief, and criminal

prosecution. The Vessel Fuel Rules contain an express

"sunset" clause, providing for their termination when

CARB's Executive Officer makes a finding that the

federal government has adopted and is enforcing

requirements that will achieve equivalent emission

reductions.

Prior to the 2009 adoption and implementation of the

Vessel Fuel Rules, CARB previously adopted a set of

emission standards for ocean-going vessels. In PMSA v.

Goldstene, 517 F.3d 1108 (9th Cir. 2008), we observed

that CARB on January 1, 2007 began enforcing its

"Marine Vessel Rules," limiting "emissions from the

auxiliary diesel engines of oceangoing vessels within

twenty-four miles of California's coast," id. at 1109.

PMSA claimed that the Marine Vessel Rules were

preempted by two federal statutes: the Clean Air Act and

the Submerged Lands Act ("SLA"). Id. at 1109-13.

Affirming the district court's ruling and reinstating the

injunction entered against the regulations' enforcement,

we held that the Marine Vessel Rules were emission

standards (as opposed to otherwise permissible in-use

fuel requirements) and thereby were preempted by the

Clean [*5] Air Act. Id. at 1109-15. We accordingly

found "it unnecessary to decide whether the Submerged

Lands Act also preempts the state rules at issue." Id. at

1115. In turn, CARB carefully drafted the current Vessel

Fuel Rules to require the use of particular fuels in order

to correct the deficiency we identified in Goldstene.

With respect to these Vessel Fuel Rules, the District

Court as well as the parties have addressed in some detail

the serious environmental problems giving rise to these

regulations as well as the various positive and negative

effects of this regulatory scheme.

Initially, the ports of Long Beach and Los Angeles

collectively constitute the largest port in the United

States, with some 40% of all national imports entering

the country through these two huge facilities. In 2006

alone, there were approximately 11,000 vessel "calls" at

California ports, and this number is expected to increase

significantly in the future.

CARB estimated that compliance with the Vessel

Fuel Rules would cost ship operators $30,000.00 per

California port "call," amounting to an industry-wide

aggregate incremental cost of approximately $360 million

annually and $1.5 billion through the end of 2014. [*6]

On the other hand, it does not appear that such

compliance would be technically impossible or even

especially challenging. As the District Court emphasized

in its decision, "any increased cost associated with

compliance is less than one percent of the typical cost of

a trans-Pacific voyage." (ER36 (citing SER42).) "That

cost has been estimated by CARB to amount to only a

$6.00 increase per 20-foot shipping container, a sum that

would equate to only an extra 12.5 cents in the cost of a

plasma TV" or about 0.14 cents for a pair of athletic

shoes (Id. (citing same).)

It appears uncontested that ocean-going vessels have

long been a leading source of air pollution in California,

due in large part to the widespread use of low-grade

Page 2

2011 U.S. App. LEXIS 6239, *2
bunker fuel. Bunker fuel consists primarily of a thick and

tar-like residual formulated from the residues remaining

after primary fuel distillation. Because of its high

viscosity, this fuel has to be heated before it can be

pumped and injected into an engine. It contains an

average of approximately 25,000 parts per million

("ppm") of sulfur. In contrast, the diesel fuel used for

trucks and other motor vehicles is limited to just 15 ppm

of sulfur.

2006 data from [*7] CARB indicated that

ocean-going vessels traveling within 24 nautical miles of

the California coast generate per day approximately 15

tons of diesel particulate matter ("PM"), 157 tons of

nitrogen oxides ("NOx"), and 117 tons of sulfur oxides

("SOx"). In fact, their emissions constitute the single

largest source of SOx emissions in the state, responsible

for 40% of all such emissions. Furthermore, both NOx

and SOx are precursors to PM2.5, or fine particulate

pollution. It was estimated that the vessels' daily PM

emissions represent the equivalent of approximately

150,000 big rig trucks traveling 125 miles per day. It

appears that emissions are likely to be blown on-shore

from beyond the geographical area actually covered by

the Vessel Fuel Rules.

It is likewise undisputed that 27 million Californians

(80% of the state's population) are exposed to emissions

from ocean-going vessels and that these emissions have a

number of harmful effects. In particular, diesel emissions

are known to cause cancer and respiratory illnesses like

aggravated asthma as well as to increase the risk of heart

disease. CARB specifically estimated that the vessels'

direct PM emissions cause 300 premature deaths [*8]

across the state every single year, even after excluding

cancer effects.

These various public health problems are especially

severe in the area of Southern California known as the

South Coast Air Basin (which encompasses all of Orange

County as well as the non-desert portions of Los Angeles,

Riverside, and San Bernardino Counties). For instance,

over 80% of the population in the South Coast Air Basin

is exposed to PM2.5 levels exceeding federal ambient air

quality standards.

Implementation of the Vessel Fuel Rules should

reduce PM emissions by approximately 13 tons per day,

NOx emissions by 10 tons per day, and SOx emissions by

109 tons per day. Upon full implementation, the amount

of SOx in the air should be cut by approximately 90%. In

addition to anticipated health care savings and similar

financial benefits, research indicated that the Vessel Fuel

Rules should prevent, between 2009 and 2015,

approximately 3,500 premature deaths and nearly

100,000 asthma attacks as well as reduce cancer risks.

The South Coast Air Basin has long been unable to

meet federal air quality standards. As a practical matter,

the Vessel Fuel Rules appear to be critical to ongoing

efforts at compliance. Among [*9] other things, the

Clean Air Act requires Defendant-Intervenor South Coast

Air Quality Management District 1 ("South Coast

District") to achieve national ambient air quality

standards for PM2.5, and, in order to do so, it evidently

needs SOx reductions of nearly 70% by 2014. However,

"[m]ost of the pollution reductions the South Coast

District relies on to attain the standard come from these

CARB rules," and the South Coast District therefore

claims that it would be impossible to comply with federal

law without these regulations. (South Coast District's

Brief at 6 (citing SER144).) Failure to comply with

federal mandates could result in the EPA imposing

various sanctions, including the reduction or termination

of federal transportation funding for the region.

1 The South Coast District has joint

responsibility, along with CARB, for the South

Coast Air Basin. The District, which also includes

the Palm Springs area, is home to over 16 million

people.

On March 27, 2009 (after this litigation commenced

but before the District Court ruled on PMSA's summary

judgment motion), Canada and the United States jointly

proposed, pursuant to the procedures established by the

International Maritime Organization [*10] ("IMO"), that

an Emissions Control Area ("ECA") be established under

Annex VI of the International Convention for the

Prevention of Pollution from Ships ("MARPOL"). The

IMO, which is responsible for administering the treaty,

evidently adopted the joint proposal on March 26, 2010

(following the filing of this current appeal). This action

makes the ECA binding on all treaty signatories. It is

anticipated that, as of August 2012, vessels subject to

Annex VI and located within 200 nautical miles of the

territorial sea baselines of Canada and the United States

will be required to comply with a 1% sulfur limit. The

ECA will then evidently require these vessels to meet the

same 0.1% sulfur limit established by the Vessel Fuel

Rules beginning in 2015.

Page 3

2011 U.S. App. LEXIS 6239, *6
PMSA is a California mutual benefit corporation

whose members own and operate both United States and

foreign-flagged ocean-going vessels. It filed its complaint

in the United States District Court for the Eastern District

of California on April 27, 2009, naming Goldstene

(acting in his official capacity) as the sole Defendant. The

pleading contained a single claim for relief with the

heading: "[For Declaratory And Injunctive Relief Based

On Preemption [*11] By The Submerged Lands Act, 43

U.S.C. § 1301 et seq.]" (ER45 (emphasis omitted).)

PMSA specifically alleged, inter alia, that it "is entitled to

a judgment that enjoins defendant Goldstene from giving

effect or enforcing 13 CCR § 2299.2 and 17 CCR §

93118.1 seaward of California's boundary as established

by the Submerged Lands Act and declares these

regulations preempted by the Commerce Clause of the

United States Constitution, and contrary to the

Supremacy Clause of the United States Constitution."

(ER46.) PMSA accordingly sought a declaration to the

effect "that, insofar as they regulate conduct seaward of

California's three-mile boundary," the Vessel Fuel Rules

are preempted by the SLA and otherwise "impermissibly

regulate navigation and foreign and domestic commerce

as delegated to the United State Congress by Article I,

Section 8, Clause 3 of the Constitution." (Id.) PMSA

further sought a permanent injunction barring the

implementation or enforcement of the Vessel Fuel Rules

as to conduct seaward of California's 3-mile boundary.

The District Court allowed the South Coast District

as well as the National Resources Defense Council, Inc.

and the Coalition for Clean Air, Inc. to intervene [*12] in

this action as Defendants. PMSA moved for summary

judgment. In a memorandum and order filed on June 30,

2009, the District Court denied PMSA's summary

judgment motion. In short, the District Court: (1) applied

the general presumption against federal preemption; (2)

determined that the Vessel Fuel Rules are not preempted

by the SLA; (3) based in particular on its application of

the "so-called 'effects test,' " rejected PMSA's theory that

the regulations "are otherwise 'unlawful and

impermissibly regulate navigation and foreign commerce

as delegated to the United States Congress,' or are

'contrary to law.' " (ER16-ER17 (quoting ER46)); and (4)

otherwise observed that, pursuant to the Clean Air Act,

states are permitted to adopt their own fuel mandates.

PMSA responded to the District Court's ruling by

filing a motion for modification and for permission to

take an interlocutory appeal. Although the motion was

contested, the District Court filed an amended

memorandum and order on August 28, 2009, certifying

that "this Order qualifies for immediate appellate review

as involving 'a controlling question of law as to which

there is substantial ground for difference of opinion and

that an [*13] immediate appeal from the order may

materially advance the ultimate termination of the

litigation.' " (ER42 (quoting 28 U.S.C. § 1292(b)).)

PMSA filed a timely petition for permission to appeal,

which was granted by this Court on December 11, 2009,

and PMSA then successfully perfected the appeal.

II.

It is uncontested that the District Court possessed

federal question jurisdiction over this matter pursuant to

28 U.S.C. § 1331 and that we have appellate jurisdiction

over the current interlocutory appeal under 28 U.S.C. §

1292(b).

A district court's denial of summary judgment is

reviewed de novo. See, e.g., Botosan v. Paul McNally

Realty, 216 F.3d 827, 830 (9th Cir. 2000). We must

determine whether, viewing the evidence in the light

most favorable to the non-moving party, there are any

genuine issues of material fact and whether the district

court properly applied the correct legal principles. See,

e.g., Prison Legal News v. Lehman, 397 F.3d 692, 698

(9th Cir. 2005). We also may affirm on any ground

supported by the record. See, e.g., Levine v. Vilsack, 587

F.3d 986, 991 (9th Cir. 2009).

We find that the related dormant Commerce Clause

and general maritime law preemption claims were

preserved [*14] and are now properly before us. PMSA

sought declaratory and injunctive relief in the District

Court on the grounds that the Vessel Fuel Rules, insofar

as they purport to regulate conduct seaward of

California's 3-mile boundary, are preempted by the SLA

and unlawfully and impermissibly regulate navigation

and both foreign and domestic interstate commerce. The

District Court in turn determined that PMSA failed to

demonstrate that the California regulations "are otherwise

'unlawful and impermissibly regulate navigation and

foreign and domestic commerce as delegated to the

United States Congress.' " (ER37 (quoting ER46).)

Finally, we observe that, as a practical matter, the

statutory preemption, dormant Commerce Clause, and

general maritime law preemption theories presented in

this appeal are quite similar.

Page 4

2011 U.S. App. LEXIS 6239, *10
III.

This appeal presents the Court with a highly unusual

and challenging set of circumstances. Given the

circumstances, we do believe that the regulatory scheme

at issue here pushes a state's legal authority to its very

limits, although the state had clear justifications for doing

so. More generally, we must take into account such

fundamental considerations as, on the one hand, the

supremacy [*15] of federal law, the various limitations

on state regulations arising out of the dormant Commerce

Clause and general maritime law preemption doctrines,

and the federal government's unquestioned authority over

this nation's relations with foreign countries, and, on the

other hand, the sovereign police powers retained by

California allowing the state to adopt a wide range of

laws in order to protect the health, safety, and welfare of

its own residents.

Having fully considered the numerous arguments

raised by the parties, the record on appeal, the District

Court's own reasoning, and the governing legal

principles, we ultimately determine that the District Court

properly denied PMSA's motion for summary judgment.

In particular, PMSA fails to establish that the Vessel Fuel

Rules are preempted by the SLA. PMSA also fails to

show that it is entitled to summary judgment on the basis

that the Vessel Fuel Rules "are otherwise 'unlawful and

impermissibly regulate navigation and foreign and

domestic commerce as delegated to the United States

Congress.' " (ER37 (quoting ER46).)

A. Statutory Preemption Under The SLA

In this appeal, PMSA primarily relies on a theory of

statutory preemption, asserting [*16] that the Vessel Fuel

Rules are preempted by the SLA. We therefore are

directly confronted with the question we refrained from

deciding in Goldstene.

The SLA arose out of a number of rulings by the

United States Supreme Court primarily deciding who

owns the submerged lands (and the oil and other natural

resources contained in these lands) off the coasts of the

United States. In particular, the Supreme Court held in

United States v. California, 332 U.S. 19, 67 S. Ct. 1658,

91 L. Ed. 1889 (1947) ("California I"), that "California is

not the owner of the three-mile marginal belt along its

coast, and that the Federal Government rather than the

state has paramount rights in and power over that belt, an

incident to which is full dominion over the resources of

the soil under that water area, including oil," id. at 38-39;

see also, e.g., United States v. Louisiana, 339 U.S. 699,

704-06, 70 S. Ct. 914, 94 L. Ed. 1216 (1950) ("Louisiana

I").

"The Submerged Lands Act, 67 Stat. 29, 43 U.S.C. §

1301 et seq., passed May 22, 1953, came in response to

these rulings." United States v. Louisiana, 446 U.S. 253,

256, 100 S. Ct. 1618, 64 L. Ed. 2d 196 (1980)

("Louisiana III"). "By that statute, the United States

released to the coastal States its rights in the submerged

lands within stated limits and [*17] confirmed its own

rights therein seaward of those limits." Id. The Supreme

Court upheld this legislation as a constitutional exercise

of Congress's power to dispose of federal property under

Article IV, Section 3, Clause 2 of the Constitution. See,

e.g. id. (citing Alabama v. Texas, 347 U.S. 272, 74 S. Ct.

481, 98 L. Ed. 689 (1954)); United States v. Louisiana,

363 U.S. 1, 7, 80 S. Ct. 961, 4 L. Ed. 2d 1025 (1960)

("Louisiana II") (citing same). We point out that the

Supreme Court itself has also indicated that Congress

thereby did not technically overrule or otherwise reject

the Court's own prior case law. See, e.g., United States v.

Maine, 420 U.S. 515, 524, 95 S. Ct. 1155, 43 L. Ed. 2d

363 (1975) ("Maine I") ("It is also our view, contrary to

the contentions of the States, that the premise [that

paramount rights to the offshore seabed inhere in the

federal government as an incident of national

sovereignty] was embraced rather than repudiated by

Congress in the Submerged Lands Act of 1953, 67 Stat.

29, 43 U.S.C. § 1301."); Louisiana II, 363 U.S. at 7

(stating that "the Act concededly did not impair the

validity of the California, Louisiana, and Texas cases,

which are admittedly applicable to all coastal States").

However, as a practical matter, the legislation still

transferred [*18] federal rights in the marginal seas to

the respective states. See, e.g., Maine I, 420 U.S. at 524

("In that legislation, it is true, Congress transferred to the

States the rights to the seabed underlying the marginal

sea; however, this transfer was in no wise inconsistent

with paramount national power but was merely an

exercise of that authority."); Louisiana II, 363 U.S. at 6

("[T]his case draws in question only the geographic

extent to which the statute ceded to the States the federal

rights established by those [pre-SLA] decisions.");

Barber v. Hawai'i, 42 F.3d 1185, 1190 (9th Cir. 1994)

("In 1953, Congress passed the Submerged Lands Act to

negate the Supreme Court's ruling [in California I.]").

In United States v. Louisiana, 363 U.S. 1, 80 S. Ct.

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2011 U.S. App. LEXIS 6239, *14
961, 4 L. Ed. 2d 1025 (1960) ("Louisiana II"), the

Supreme Court observed that "the purposes of the

Submerged Lands Act are described in its title as

follows:"

'To confirm and establish the titles of the

States to lands beneath navigable waters

within State boundaries and to the natural

resources within such lands and waters, to

provide for the use and control of said

lands and resources, and to confirm the

jurisdiction and control of the United

States over the natural [*19] resources of

the seabed of the Continental Shelf

seaward of State boundaries.'

Id. at 8. The Louisiana II Court then stated that the

legislation promotes these purposes in the following

ways:

1. relinquishes to the States the entire

interest of the United States in all lands

beneath navigable waters within state

boundaries. (s 3, 43 U.S.C. § 1311, 43

U.S.C.A. § 1311);

2. defines that area in terms of state

boundaries 'as they existed at the time (a)

State became a member of the Union, or

as heretofore approved by Congress,' not

extending, however, seaward from the

coast of any State more than three marine

leagues in the Gulf of Mexico or more

than three geographical miles in the

Atlantic and Pacific Oceans (s 2, 43

U.S.C. § 1301, 43 U.S.C.A. § 1301);

3. confirms to each State a seaward

boundary of three geographical miles,

without 'questioning or in any manner

prejudicing the existence of any State's

seaward boundary beyond three

geographical miles if it was so provided

by its constitution or laws prior to or at the

time such State became a member of the

Union, or if it has been heretofore

approved by Congress' (s 4, 43 U.S.C. §

1312, 43 U.S.C.A. § 1312); and

4. For purposes of commerce, [*20]

navigation, national defense, and

international affairs, reserves to the United

States all constitutional powers of

regulation and control over the areas

within which the proprietary interests of

the States are recognized (s 6(a), 43 U.S.C.

§ 1314, 43 U.S.C.A. § 1314); and retains

in the United States all rights in

submerged lands lying beyond those areas

to the seaward limits of the Continental

Shelf (s 9, 43 U.S.C. § 1302, 43 U.S.C.A.

§ 1302).

Id. at 8-10 (footnotes omitted).

PMSA specifically emphasizes § 1312, which is

entitled "Seaward boundaries of States." This provision

states in full that:

The seaward boundary of each original

coastal State is approved and confirmed as

a line three geographical miles distant

from its coast line or, in the case of the

Great Lakes, to the international boundary.

Any State admitted subsequent to the

formation of the Union which has not

already done so may extend its seaward

boundaries to a line three geographical

miles distant from its coast line, or to the

international boundaries of the United

States in the Great Lakes or any other

body of water traversed by such

boundaries. Any claim heretofore or

hereafter asserted either by constitutional

provision, [*21] statute, or otherwise,

indicating the intent of a State so to extend

its boundaries is approved and confirmed,

without prejudice to its claim, if any it has,

that its boundaries extend beyond that line.

Nothing in this section is to be construed

as questioning or in any manner

prejudicing the existence of any State's

seaward boundary beyond three

geographical miles if it was so provided

by its constitution or laws prior to or at the

time such State became a member of the

Union, or if it has been heretofore

approved by Congress.

It is uncontested that, as the District Court noted,

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2011 U.S. App. LEXIS 6239, *18
California law "previously delineated California's sea

boundary as extending three miles into the Pacific Ocean

(see People v. Weeren, 26 Cal. 3d 654, 660, 163 Cal.

Rptr. 255, 607 P.2d 1279 (1980))." (ER30.)

The Supreme Court has further indicated that § 1312

specifically arises out of Congress's power to admit states

pursuant to Article IV, Section 3, Clause 1 of the

Constitution. According to the Louisiana II Court, the

admission power gives rise to Congress's authority to

establish state boundaries for all domestic purposes (in

contrast to the President's power as the constitutional

representative of this nation in foreign affairs to

determine [*22] how far this country will claim

territorial rights as against other countries). Louisiana II,

363 U.S. at 35. In other words, such state boundaries

established by Congress are "fully effective as between

Nation and State." Id.

1. The Doctrine Of Implicit Field Preemption And

The General Presumption Against Preemption

PMSA does not argue that the Vessel Fuel Rules are

expressly preempted by any federal statute, and it instead

relies on the doctrine of implicit field preemption. The

principles governing this doctrine appear to be relatively

easy to state, although they seem to be rather difficult to

apply in practice. We agree with the District Court that it

is appropriate to apply the otherwise well-established

presumption against preemption in the current

circumstances. In turn, the application of such a

presumption in this matter clearly weighs against PMSA's

position.

Field preemption arises when state law "regulates

conduct in a field that Congress intended the Federal

Government to occupy exclusively." English v. Gen.

Elec. Co., 496 U.S. 72, 79, 110 S. Ct. 2270, 110 L. Ed. 2d

65 (1990). "We will find implicit preemption where the

intent of Congress is clearly manifested, or implicit from

a pervasive scheme of federal [*23] regulation that

leaves no room for state and local supplementation, or

implicit from the fact that the federal law touches a field

(e.g. foreign affairs) in which 'the federal interest is so

dominant that the federal system will be assumed to

preclude enforcement of state laws on the same subject.' "

Barber, 42 F.3d at 1189 (quoting Wis. Pub. Intervenor v.

Mortier, 501 U.S. 597, 604-05, 111 S. Ct. 2476, 115 L.

Ed. 2d 532 (1991)). In deciding whether a federal law

preempts a state counterpart, our only task is to ascertain

the intent of Congress. See, e.g., PMSA v. Aubry, 918

F.2d 1409, 1415 (9th Cir. 1990) (quoting Cal. Fed. Sav.

& Loan Ass'n v. Guerra, 479 U.S. 272, 280, 107 S. Ct.

683, 93 L. Ed. 2d 613 (1987)).

PMSA contends that the 3-mile boundary

purportedly established by the SLA constitutes a

component of a comprehensive federal scheme and that

the SLA "statutorily demarcates the territorial boundaries

of the states for purposes of federal law." (Appellant's

Brief at 20.) In other words, the powers of the states are

subordinated even within their respective territorial

boundaries, and they, in turn, lack any powers

whatsoever (with a few possible narrow exceptions)

beyond such boundaries in waters in which the federal

government's own powers are [*24] "exclusive." (Id.)

According to PMSA, Congress purportedly legislated on

a matter in which the federal interest is so dominant that

it must be assumed that enforcement of state law on the

same subject is precluded. PMSA goes on to argue that

the Vessel Fuel Rules "assert the territorial dominion of

California out to 24 miles" and thereby venture into a

field comprehensively settled by Congress in the

SLA--"the definition of a state's territorial seas."

(Appellant's Reply Brief at 9.)

In conducting its preemption analysis, the District

Court expressly relied on the general presumption against

preemption. It recognized that "a presumption applies to

protect a state's historic police power in protecting the

health and safety of its citizenry, unless the clear and

manifest purpose of Congress dictates otherwise." (ER33

(citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218,

230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947)). PMSA

vigorously contends that the presumption does not apply

in this case, relying in particular on the Supreme Court's

opinion in United States v. Locke, 529 U.S. 89, 120 S. Ct.

1135, 146 L. Ed. 2d 69 (2000).

The Locke Court ruled that certain components of

Washington's regulatory scheme governing oil tankers in

Puget Sound were preempted by [*25] the Ports and

Waterways Safety Act of 1972 ("PWSA") and another

federal statute (specifically striking down state crew

training requirements, an English language proficiency

mandate for tanker crew members, a navigation watch

requirement, and marine casualty reporting requirements)

and remanded for further consideration of the remaining

state-law provisions. Id. at 99-117. It specifically rejected

our broad application of the "Rice assumption" on the

grounds that "an 'assumption' of nonpreemption is not

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2011 U.S. App. LEXIS 6239, *21
triggered when the State regulates in an area where there

has been a history of significant federal presence." Id. at

108 (citing Jones v. Rath Packing Co., 430 U.S. 519, 525,

97 S. Ct. 1305, 51 L. Ed. 2d 604 (1977); Medtronic, Inc.

v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 135 L. Ed.

2d 700 (1996)). Applying this approach, the Locke Court

determined that the presumption (or "assumption") was

inapplicable:

The state laws now in question bear

upon national and international maritime

commerce, and in this area there is no

beginning assumption that concurrent

regulation by the State is a valid exercise

of its police powers. Rather, we must ask

whether the local laws in question are

consistent with the federal statutory

structure, which has as one of its [*26]

objectives a uniformity of regulation for

maritime commerce. No artificial

presumption aids us in determining the

scope of appropriate local regulation under

the PWSA, which, as we discuss below,

does preserve, in Title I of that Act, the

historic role of the States to regulate local

ports and waters under appropriate

circumstances. At the same time, as we

also discuss below, uniform, national rules

regarding general tanker design, operation,

and seaworthiness have been mandated by

Title II of the PWSA.

Id. at 108-09; see also Fednav, Ltd. v. Chester, 547 F.3d

607, 622 (6th Cir. 2008) (refraining from applying any "

'beginning assumption' " with respect to Michigan's

ballast statute).

The Supreme Court, however, further explained the

proper scope of this presumption against preemption in

Wyeth v. Levine, 129 S. Ct. 1187, 173 L. Ed. 2d 51

(2009). In this 2009 decision, the Court rejected the

theory that the FDA's approval of drug warning labels

furnished the drug manufacturer with a complete defense

to state tort claims for failure to provide an adequate

warning. Id. at 1193-1204. The Supreme Court expressly

applied the beginning assumption against preemption. Id.

at 1194-95. In a footnote, it considered [*27] but rejected

the manufacturer's contention that the presumption

should not apply at all because the federal government

has regulated drug labeling for more than a century. Id. at

1195 n.3. Stating that this argument was based on a

misunderstanding of the governing principle, the Wyeth

Court explained that "[w]e rely on the presumption

because respect for the States as 'independent sovereigns

in our federal system' leads us to assume that 'Congress

does not cavalierly pre-empt state law causes of action.' "

Id. (quoting Medtronic, Inc., 518 U.S. at 485).

Specifically, the presumption thereby "accounts for the

historic presence of state law but does not rely on the

absence of federal regulation." Id.

While PMSA contends that the Vessel Fuel Rules

operate in fields historically occupied by the federal

government (e.g., maritime commerce, conduct at sea

outside of state boundaries, and the definition of state

boundaries), we agree with the District Court that these

state regulations ultimately implicate the prevention and

control of air pollution. States have long sought to protect

their own residents from the undisputedly harmful effects

of air pollution and other forms of environmental [*28]

harms. In its 1960 ruling in Huron Portland Cement Co.

v. City of Detroit, 362 U.S. 440, 80 S. Ct. 813, 4 L. Ed. 2d

852 (1960), the Supreme Court observed that

"[l]egislation designed to free from pollution the very air

that people breathe clearly falls within the exercise of

even the most traditional concept of what is

compendiously known as the police power," id. at 442.

Likewise, this Court more recently stated that "[a]ir

pollution prevention falls under the broad police powers

of the states, which include the power to protect the

health of citizens in the state" and that "[e]nvironmental

regulation traditionally has been a matter of state

authority." Exxon Mobil Corp. v. U.S. EPA, 217 F.3d

1246, 1255 (9th Cir. 2000) (citing Massachusetts v. U.S.

Dep't of Transp., 93 F.3d 890, 894, 320 U.S. App. D.C.

227 (D.C. Cir. 1996)). Congress itself contemplated that

the states would retain leading roles in regulating air

quality when it passed the Clean Air Act. See, e.g., id. at

1254-55. While we acknowledge that the state regulatory

scheme at issue in Locke likewise sought to protect the

environment, we find it significant that the Washington

state law addressed the same subject and had the same

purpose, namely the prevention of oil tanker [*29]

accidents, as the federal legislation. As explained in more

detail in Section III.A.2., infra, we are not faced with the

same kind of situation here with respect to the Vessel

Fuel Rules and the SLA.

Given the "historic presence of state law" in the area

of air pollution, we apply the well-established

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2011 U.S. App. LEXIS 6239, *25
presumption or assumption against preemption in the

current appeal. See, e.g., Kroske v. US Bank Corp., 432

F.3d 976, 981 (9th Cir. 2005) ("Here, although we

recognize that there is a significant federal presence in

the regulation of national banks, WLAD ("Washington

Law Against Discrimination") was enacted pursuant to

the State's historic police powers to prohibit

discrimination on specified grounds. Thus, we begin with

the presumption that Congress did not intend the National

Bank Act to preempt the WLAD." (citations omitted)).

2. The SLA Does Not Preempt The Vessel Fuel Rules

Especially in light of this applicable presumption, we

believe that the District Court properly rejected PMSA's

whole theory of implied preemption. Simply put, PMSA

reads too much into the SLA itself and what Congress

itself intended to achieve in 1953. We instead conclude

that, at the very least, a state law regulating [*30]

extraterritorial conduct in the high seas immediately

adjacent to the state's territorial waters satisfying the

well-established effects test should generally be

sustained. Applying this effects test to the Vessel Fuel

Rules, we conclude that there are genuine issues of

material fact with respect to both the effects of the fuel

use governed by California's regulations on the health

and well-being of the state's residents as well as the

actual impact of these regulations on maritime and

foreign commerce.

Initially, we reject PMSA's unfounded

characterization of the Vessel Fuel Rules as amounting to

some sort of territorial claim on the part of California.

While the regulations do use, inter alia, the term

"Regulated California Waters" and thereby set out precise

geographical coordinates and descriptions

(understandably so given that vessel owners and

operators need to know when they must comply with the

fuel use requirements), CARB, as a mere state

administrative agency, does not actually purport to extend

the borders of California. It merely seeks to regulate

conduct beyond the state's territorial boundaries because

of the serious harmful effects of this conduct on the state

and its [*31] residents. It therefore does not invade or

interfere with either Congress's power to set state

territorial boundaries for domestic purposes or the

President's power "to determine how far this country will

claim territorial rights . . . as against other nations."

Louisiana II, 363 U.S. at 35.

Turning specifically to the SLA itself, we must

approach this legislation in light of the line of Supreme

Court cases beginning with California I.

On the one hand, we do acknowledge that the initial

holding in California I was premised on the fundamental

principle that the federal government possesses

paramount rights over the marginal seas. For instance, the

California I Court noted that the "protection and control

of [the 3-mile belt] has been and is a function of national

external sovereignty" and that a national government

"must have powers of dominion and regulation in the

interests of its revenues, its health, and the security of its

people from [war] waged on or too near its coasts."

California I, 332 U.S. at 35-36 (citations omitted). In

Barber v. Hawai'i, 42 F.3d 1185 (1994), we stated that

the California I Court thereby recognized the federal

government as the exclusive owner of submerged [*32]

lands and the waters above them within the 3-mile belt

and that, "[c]onsequently, before the Submerged Lands

Act, the states' jurisdiction ended at the low-tide mark of

their tidal shores," id. at 1190. The SLA, in turn,

expressly reserves to the United States concurrent

jurisdiction over the waters within this belt for purposes

of commerce, navigation, national defense, and

international affairs. See, e.g., 43 U.S.C. § 1314; Barber,

42 F.3d at 1190-91 (discussing 43 U.S.C. § 1311(d)).

The Court in Louisiana II further indicated that §

1312 constitutes an exercise of Congress's power to admit

new states and thereby set state boundaries. Louisiana II,

363 U.S. at 35. Accordingly, it appears that at least one

component (the component of greatest significance in this

case) of the SLA involves more than a mere transfer of

property. Such a broader approach was apparently taken

by the California Supreme Court in People v. Weeren, 26

Cal. 3d 654, 163 Cal. Rptr. 255, 607 P.2d 1279 (1980).

Among other things, the state court quoted the language

from Louisiana II regarding the exercise of Congress's

power to admit new states and set state boundaries. Id. at

660 (quoting Louisiana II, 363 U.S. at 35). It then stated

that:

We are [*33] unable to accept the

People's argument that the effect of

[United States v. California, 381 U.S. 139,

85 S. Ct. 1401, 14 L. Ed. 2d 296 (1965)

("California II"),] is limited solely to

issues involving land title which are

governed by the Act and that the high

court's holding, accordingly, is therefore

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2011 U.S. App. LEXIS 6239, *29
inapplicable to California's political and

penal jurisdiction over adjacent seas.

Fairly read, California II established the

state's "boundaries" for all purposes,

political and proprietary, "as between

Nation and State." Accordingly, these

"boundaries" are those "boundaries"

referred to in the [Fishery Conservation

and Management Act of 1976] as the

limits of state territorial jurisdiction over

fishing . . . .

Id. at 662. The California Supreme Court subsequently

added that the SLA itself is premised on the underlying

principle that all states possess a single and fixed seaward

boundary for all domestic purposes. Id. at 664. Despite

this conclusion regarding the location of the state's

borders, the Weeren Court ultimately upheld the

extraterritorial application of California's fishing

regulations. Id. at 666-69.

Similarly, the United States Supreme Court in United

States v. Maine, 469 U.S. 504, 105 S. Ct. 992, 83 L. Ed.

2d 998 (1985) ("Maine II"), noted [*34] in passing that

"[t]he location of a State's boundary also may be relevant

in determining the State's right to regulate navigation"

and then pointed to both Congress's plenary right to

regulate navigation under the Commerce Clause as well

as a long-standing federal statute giving the states the

right to regulate pilotage in the bays, inlets, rivers,

harbors, and ports of the United States, id. at 513 n.6.

We, however, must not overlook the fact that the

Supreme Court's various rulings, decided under the

Court's original jurisdiction pursuant to Article III of the

Constitution, specifically addressed the distinct question

of who owned the submerged lands (and the oil and other

resources contained therein) off the coasts of this nation

(and in the process often considered subsidiary issues like

the exact parameters of a state's territorial boundaries).

See, e.g., Maine II, 469 U.S. at 505-27; Louisiana III, 446

U.S. at 254-73; Maine I, 420 U.S. at 516-28; California

II, 381 U.S. at 142-78; Louisiana II, 363 U.S. at 4-85,

363 U.S. at 121-29; Louisiana I, 339 U.S. at 700-06;

California I, 332 U.S. at 22-46.

In fact, the California I Court itself indicated that a

state's possession of police powers over [*35] the 3-mile

belt had no bearing on the determination of whether the

state or the federal government owned the lands in

dispute. "Conceding that the state has been authorized to

exercise local police power functions in the part of the

marginal belt within its declared boundaries, these do not

detract from the Federal Government's paramount rights

in and power over this area." California I, 332 U.S. at 36

(footnote omitted). It went on to distinguish a number of

prior Supreme Court cases upholding state regulation of

conduct within the states' territorial waters, including

Skiriotes v. Florida, 313 U.S. 69, 61 S. Ct. 924, 85 L. Ed.

1193 (1941). California I, 332 U.S. at 37-38.

A year later, the Supreme Court further considered

the limitations of California I. In Toomer v. Witsell, 334

U.S. 385, 68 S. Ct. 1156, 92 L. Ed. 1460 (1948), the

Court addressed a challenge to several South Carolina

statutes governing commercial shrimp fishing in the

3-mile belt off the state's coast, id. at 391-407. In the

process, it expressly rejected the theory that, because of

California I, South Carolina lacked any jurisdiction

beyond the low-water mark:

Here appellants seem to concede, and

correctly so, that such is neither the

holding nor the implication of that case;

[*36] for in deciding that the United

States, where it asserted its claim, had

paramount rights in the three-mile belt, the

Court purportedly quoted and supplied

emphasis to a statement in [Skiriotes, 313

U.S. at 75], that "It is also clear that

Florida has an interest in the proper

maintenance of the sponge fishery and that

the (state) statute so far as applied to

conduct within the territorial waters of

Florida, in the absence of conflicting

federal legislation, is within the police

power of the State."

Id. at 393 (footnote omitted). Likewise, the Supreme

Court observed in United States v. Louisiana, 339 U.S.

699, 70 S. Ct. 914, 94 L. Ed. 1216 (1950) ("Louisiana I"),

that "[w]e intimate no opinion on the power of a State to

extend, define, or establish its external territorial limits or

on the consequences of any such extension vis a vis

persons other than the United States or those acting on

behalf or pursuant to its authority," id. at 705.

According to PMSA, the Supreme Court itself "has

never been called upon to determine the effect of the

SLA's boundary provisions on a state's exercise of

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2011 U.S. App. LEXIS 6239, *33
jurisdiction over maritime conduct beyond the three-mile

limit." (Appellant's Brief at 21.) We further note that

PMSA does not [*37] cite to any judicial ruling actually

striking down a state or local regulatory scheme on the

basis of the SLA. On the contrary, the general weight of

the case law clearly indicates that the federal legislation

does not have the preemptive effect advanced by PMSA.

We further conclude that the District Court's application

of the effects test is consistent with the relevant case law.

Pursuant to this test, California may enact reasonable

regulations to monitor and control extraterritorial conduct

substantially affecting its territory.

Initially, the Supreme Court expressly rejected a

challenge to the extraterritorial application of state law to

conduct occurring beyond the state's own territorial

waters in its 1941 Skiriotes decision (which, as already

noted, was subsequently considered in both California I

as well as Toomer). A Florida resident was convicted in a

Florida state court of using diving equipment to take

sponges in violation of a state statute. Skiriotes, 313 U.S.

at 69-72. The Supreme Court upheld the conviction,

explaining, inter alia, that "[e]ven if it were assumed that

the locus of the offense was outside the territorial waters

of Florida, it would not follow that the [*38] State could

not prohibit its own citizens from the use of the described

divers' equipment at that place." Id. at 76. It went on to

explain that, if the United States may control the conduct

of its own citizens on the high seas, "we see no reason

why the State of Florida may not likewise govern the

conduct of its citizens upon the high seas with respect to

matters in which the State has a legitimate interest and

where there is no conflict with acts of Congress." Id. at

77. In reaching this conclusion, the Skiriotes Court

observed that Florida, like every other state in the Union,

retains its own status and powers as a sovereign. Id.

Even before Skiriotes, the Supreme Court indicated

that a state could punish actions occurring in another state

of the Union because of the actions' effects. In Strassheim

v. Daily, 221 U.S. 280, 31 S. Ct. 558, 55 L. Ed. 735

(1911), Justice Holmes observed that "[a]cts done outside

a jurisdiction, but intended to produce and producing

detrimental effects within it, justify a state in punishing

the cause of the harm as if he had been present at the

effect, if the state should succeed in getting him within its

power," id. at 285 (citations omitted). Accordingly, the

Supreme Court found [*39] that an individual could be

prosecuted under the laws of Michigan for criminal acts

committed in Illinois that had an impact on Michigan. Id.

at 284-85 ("If a jury should believe the evidence, and find

that Daily did the acts that led Armstrong to betray his

trust, deceived the board of control, and induced by fraud

the payment by the state, the usage of the civilized world

would warrant Michigan in punishing him, although he

never had set foot in the state until after the fraud was

complete.").

Likewise, the Supreme Court in Huron Portland

Cement Co. refused to bar the prosecution of a ship

owner for violating a municipal smoke abatement

provision when its vessels were docked at the city's port

even though "[s]tructural alterations would be required in

order to insure compliance." 362 U.S. at 441.

Given this precedent, it is not surprising that (as the

District Court recognized) the Restatement provides that

a state may regulate conduct occurring outside of its

territorial boundaries if the conduct has (or is intended to

have) a substantial effect within the territory and the

regulation itself is otherwise reasonable. See Restatement

(Third) of Foreign Relations Law of the United States §§

402(1)(c), [*40] 403.

Likewise, we previously relied on the contacts

between conduct occurring beyond California's narrow

3-mile belt and the state itself in order to reject a

challenge to the application of state law to such

extraterritorial conduct. In PMSA v. Aubry, 918 F.2d

1409 (9th Cir. 1990), several entities, including PMSA

itself, brought suit against California's Labor

Commissioner seeking to prevent the enforcement of the

state's overtime pay laws with respect to employees

providing off-shore transportation, clean-up, and other

services to oil platforms located between 1 to 12 nautical

miles off the California coast, id. at 1411-15. We

expressly recognized the distinction between the

"territorial sea," defined as "the sea from shore to three

nautical miles off shore," and the "high seas," considered

to be the "ocean waters outside the territorial sea, i.e.,

more than three miles offshore." Id. at 1412. The Aubry

Court then considered "one core issue: Does federal law

preempt California from applying its overtime pay laws

to seamen working on territorial waters and on the high

seas off the California coast and to maritime employees

working primarily on the high seas off the California

coast, [*41] when the vessels on which the employees

work do not engage in foreign, intercoastal, or coastwise

voyages." 2 Id. at 1415. In the process, we addressed the

federal Shipping Act, the Fair Labor Standards Act

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2011 U.S. App. LEXIS 6239, *36
("FLSA"), and the doctrine of general admiralty or

maritime law preemption. Id. at 1415-27. Answering the

question stated above in the negative, we emphasized the

various California contacts present. For instance, we

noted that "Aubry has attempted to provide additional

protection to employees involved in work of critical

importance to the state --containment and clean-up of

marine oil spills" and that "the record indicates that the

maritime employees involved in this case are California

residents, were interviewed and hired in California, and

pay California taxes." Id. at 1424-25. In Fuller v. Golden

Age Fisheries, 14 F.3d 1405 (9th Cir. 1994), we

subsequently relied on this same line of reasoning in

order to distinguish Aubry and conclude that federal law

preempted Alaska state wage and overtime claims filed

by crew members working on a factory trawler, id. at

1409 (noting, inter alia, that trawler engages in coastwise

voyages, plaintiffs' dominant job situs were the high seas,

[*42] plaintiffs were not Alaska residents, were generally

hired in and began their employment in Seattle, and were

typically flown back to Seattle when their employment

concluded, and Alaska's Department of Labor indicated

that it generally does not exercise jurisdiction in such

circumstances).

2 As defined by the Shipping Act, "intercoastal

voyages" are voyages between ports on the

Atlantic and Pacific coasts, while "coastwise

voyages" are voyages between a port in one state

and a port in a non-adjoining state. Aubry, 918

F.3d at 1412 (citing 46 U.S.C. §§ 10301(a)(2),

10501(a)).

Despite the existence of the SLA, other courts from

across the country also have consistently rejected

challenges to the application of state law to conduct on

the high seas based, at least in part, on a consideration of

the effects of such conduct on the state in question.

The Florida Supreme Court affirmed the conviction

of an American citizen (but non-Florida resident) on state

charges of burglary and attempted sexual battery

committed on the high seas (approximately 100 nautical

miles from Florida's Atlantic coast) on board a

foreign-registered and fore-ignowned cruise ship against

a 13-year old American citizen [*43] (who also did not

reside in Florida). State v. Stepansky, 761 So.2d 1027,

1029-37 (Fla. 2000). The prosecution occurred pursuant

to a Florida "special maritime criminal jurisdiction"

statute providing, inter alia, for jurisdiction over a crime

occurring on a cruise ship where the majority of paying

passengers embarked and intended to disembark in

Florida, where the criminal act is also prohibited by

federal law, and where neither the federal government,

the flag state, nor the state possessing jurisdiction over

the territory in which the crime occurred have acted. Id.

at 1030, 1035. The Stepansky court found that this

statutory provision and the resulting prosecution were

consistent with fundamental principles of federalism,

Congress's constitutional powers to define piracies and

felonies committed on the high seas, the constitutional

prohibition against states entering treaties, and the

doctrine of general maritime law preemption. Id. at

1030-35. It then applied the effects test to find that the

state's exercise of jurisdiction here fell under its

sovereign police powers. Id. at 1035-37. According to the

Florida Supreme Court, this test was satisfied because

Florida's crucial tourism [*44] industry could be

significantly affected if crimes on board cruise ships

where a majority of the passengers embark and

disembark in Florida go un-prosecuted. Id. at 1036.

In State v. Jack, 125 P.3d 311 (Alaska 2005), the

Alaska Supreme Court agreed with Stepansky and found

that Alaska possessed extraterritorial criminal jurisdiction

over an alleged sexual assault committed on board an

Alaskan state ferry in Canadian waters, id. at 312-22.

Among other things, the court observed that the ferry

route to Washington constitutes an important link with

the rest of the country, the ferry serves localities lacking

road access, ferries are important to the state's tourism

industry, and the lack of a prosecution could be harmful

to Alaska, its economy, and its residents. Id. at 322.

Likewise, we observe that the California Supreme

Court in Weeren affirmed the criminal convictions of

California residents, who held California commercial

fishing licenses and used vehicles based and licensed in

California, for violation of California's commercial

swordfish regulations by utilizing spotter aircraft to catch

fish outside of the state's territorial waters. 26 Cal. 3d at

658-70. In addition to recognizing [*45] the state's

power to regulate the extraterritorial conduct of its own

residents, the state supreme court observed that California

had a powerful interest in preserving its fisheries and that

such an interest extended beyond its borders because fish

swim and do not otherwise respect the borders drawn by

governmental entities. Id. at 666-67.

Based on the same line of reasoning, the Alaska

Page 12

2011 U.S. App. LEXIS 6239, *41
Supreme Court, in a very thorough opinion addressing,

among other things, the SLA and the California I line of

cases, upheld the state's expansive crabbing regulations

as applied to American fishermen operating outside of the

state's own territorial waters. State v. Bundrant, 546 P.2d

530, 533-56 (Alaska 1976). The same court then applied

this same basic approach to an Alaskan resident's

violation of the state's scalloping regulations outside of

the state's territorial waters. State v. Sieminski, 556 P.2d

929, 930-34 (Alaska 1976). In fact, even though it

ultimately granted a preliminary injunction against the

enforcement of Alaska's crabbing scheme on Due Process

and dormant Commerce Clause grounds, the federal

district court actually determined that it was not

reasonably certain that plaintiffs would [*46] ultimately

succeed on a statutory preemption claim premised in part

on § 1312. Hjelle v. Brooks, 377 F. Supp. 430, 432-42 (D.

Alaska 1974).

Furthermore, we conclude that the District Court

quite properly relied on two circuit court decisions

expressly considering the SLA and its bearing on a state's

power to regulate extraterritorial conduct. Both of these

decisions provide yet further support for the District

Court's preemption ruling.

In Warner v. Dunlap, 532 F.2d 767 (1st Cir. 1976),

the First Circuit specifically addressed the question of

whether a Rhode Island statute, requiring every foreign

vessel and every American vessel registered for foreign

trade traversing Block Island Sound to take on a Rhode

Island-licensed pilot, falls under the scope of the federal

pilotage statute, id. at 768. This federal provision, already

mentioned in connection with our brief discussion of

Maine II, provides for the state regulation of pilots in

bays, inlets, rivers, harbors, and ports. Considering a

challenge filed by Connecticut pilots, the federal

appellate court ultimately upheld the state requirement,

finding that the waters in question constituted a "bay." Id.

at 768-72. In the process, it [*47] specifically rejected

the Connecticut pilots' theory that Rhode Island could not

regulate their activities on the grounds that the routes

they used were more than 3 miles off of the Rhode Island

shore and that, pursuant to the SLA, the state only has

territorial jurisdiction over this 3-mile zone. Id. at 772.

According to the First Circuit:

We do not, however, find merit in this

claim. The issue of a state's territorial

limits, see, e.g., [California II and Maine I

], supra, is distinct from that of its right to

control navigation. States have been

permitted to assert their pilotage

regulations at distances greater than three

miles from their shores. By permitting

states to regulate local pilotage Congress

sought to protect vessels from "invisible

hazards" that may be present in a state's

waters until the ship can be guided to the

open sea. And there is no statutory or

other basis for imposing a three-mile limit

on such regulation.

Id. (footnote omitted) (citations omitted). In an

accompanying footnote, the First Circuit specifically

upheld the district court's finding that Block Island Sound

was not part of the open ocean. 3 Id. at 772 n.14.

3 In Maine II, the Supreme Court likewise

concluded [*48] that at least a portion of Block

Island Sound constituted a juridical bay and

therefore internal state waters. Maine II, 469 U.S.

at 505-27. In its opinion, the Supreme Court

expressly referred to the First Circuit's ruling in

Warner. Id. at 507.

The Fifth Circuit considered a similar challenge in

Gillis v. Louisiana, 294 F.3d 755 (5th Cir. 2002). Pilots

claimed that Louisiana lacked the authority to regulate

their activities on the portion of the Calcasieu Ship

Channel lying more than 3 miles from the state's

coastline. Id. at 756. The Fifth Circuit rejected this claim,

noting, inter alia, that Congress has traditionally left the

regulation of pilotage largely to the states. Id. at 756-62.

With respect to the pilots' argument that Congress's

enactment of § 1312 limited the ability of the states to

regulate pilotage beyond their respective seaward

boundaries, the Gillis court stated that:

First, we disagree with the Pilots'

premise that Congress implicitly limited

state authority to regulate pilotage to

bodies of water within their territorial

boundaries when it enacted 43 U.S.C. §

1312. Section 1312, which is part of the

Submerged Lands Act, addresses only

who retains title to submerged [*49] lands

both within and beyond the three-mile

line, with particular reference to

ownership and exploration of natural

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2011 U.S. App. LEXIS 6239, *45
resources in the seabed and subsoil. It does

not address the regulation of pilotage on

the waters above.

Id. at 761 (footnote omitted). In reaching this conclusion,

the Fifth Circuit expressly relied on the earlier ruling in

Warner. Id. at 761 n.10.

In the end, PMSA does raise an extensive range of

arguments regarding this case law and its overall theory

of SLA preemption. We specifically acknowledge that

the prior decisions could certainly be distinguished in a

variety of ways, and we further recognize that at least

some of these cases may have problems or deficiencies of

their own. However, we cannot overlook the clear weight

of this case law, especially in light of the applicable

general presumption against preemption.

Accordingly, we believe that PMSA simply reads too

much into the SLA itself. Congress, responding to such

cases as California I, was primarily concerned with the

distinct question of who owned the "submerged lands"

and their valuable natural resources and accordingly

adopted legislation that, to a great extent, was essentially

a kind of real estate conveyance. [*50] Even if the statute

does set out state territorial boundaries, it does not really

address the separate question of whether the states are

totally precluded from regulating any conduct beyond

their seaward boundaries, even if such conduct clearly

harms the state, its residents, and its interests. While the

location of a state's territorial boundaries remains a

critical consideration, it does not appear that Congress

ever intended to create some sort of absolute (or

near-absolute) rule under which otherwise sovereign

states are precluded from exercising their expansive

police powers with respect to extraterritorial conduct

even if such an exercise is more than amply justified and

does not interfere or conflict with any specific federal

statute. In other words, PMSA is wrong to suggest that

the SLA creates a territorial zone in which federal

authority is not only paramount but always (or almost

always) exclusive. In fact, the relatively terse provisions

contained in the SLA appear to be at odds with such a

broad suggestion, especially when compared with the

extensive and elaborate preemptive schemes addressed in

such cases as Locke.

4

4 We further observe that, like Locke, our prior

ruling [*51] in Chevron U.S.A. Inc. v. Hammond,

726 F.2d 483 (9th Cir. 1984), dealt with the claim

that Alaska's ballast requirements for oil tankers

were preempted under the PWSA and the Ports

and Tanker Safety Act of 1978 ("PTSA"), id. at

485- 501. Therefore, our dicta regarding the

paramount federal interest in uniform

environmental regulation of deep ocean waters

must be considered in its specific context. See id.

at 492 n.12. In any case, we return to this dicta in

Section III.B., infra.

Accordingly, the District Court was correct to

conclude that, given the limited purposes of the SLA, it

should not be applied in a mechanical fashion to override

any and all state regulation of conduct occurring more

than 3 miles from the coast. 5 On the contrary, a state law

regulating extraterritorial conduct outside of the state's

territorial waters should generally be upheld if it satisfies

the well-established effects test (and, of course, is not

otherwise foreclosed by any other federal constitutional,

statutory, or regulatory requirement).

5 We further observe that PMSA undercuts its

own preemption theory by appearing to recognize

a rather lengthy list of qualifications or exceptions

to its purported general [*52] rule of federal

exclusivity beyond the SLA boundaries (e.g.,

pilotage regulations, the application of a generally

applicable state law to a particular prior crime or

specific incident, or the regulation of conduct by

the state's own residents). On the other hand, it

also appears to call into question the significance

of the boundaries purportedly established by the

SLA by failing to concede that the Vessel Fuel

Rules are valid within the 3-mile belt and

apparently leaving open the real possibility of a

future legal challenge even if it prevails in the

current litigation.

Applying this effects test to the Vessel Fuel Rules, 6

we agree with the District Court that there are, at the very

least, genuine issues of material fact precluding summary

judgment in favor of PMSA. In fact, PMSA does not

dispute either the devastating impact on California and its

residents of the low-grade fuel used by ocean-going

vessels within 24 miles of the state's coastline or the clear

benefits of the Vessel Fuel Rules themselves. Having

supported the ratification of Annex VI and the recent

adoption of the ECA, PMSA evidently has no real

objection to the underlying fuel use requirements

established by CARB [*53] and merely seeks a single

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2011 U.S. App. LEXIS 6239, *49
universal standard applicable in all jurisdictions.

Likewise, we further observe that the Vessel Fuel Rules

generally apply to "foreign and U.S. flag-commercial

ships calling at California ports," and, among other

things, contain an exemption for vessels merely passing

through the region. (Appellant's Brief at 5.) Especially in

light of the sheer amount and importance of the shipping

that goes through California (particularly Southern

California), the regulated conduct here clearly has a close

connection with the state, even apart from the

environmental impact of this conduct. Contrary to

PMSA's characterizations, we are also confronted with a

state regulatory scheme applicable to the high sea waters

immediately adjacent to the state itself (as opposed, for

example, to an attempt to regulate ships in Shanghai

Harbor because of their effects on global climate change).

6 PMSA contends that the Vessel Fuel Rules do

not constitute an "effects-based" regulation.

According to PMSA, the current regulations

merely target the fuel used, unlike CARB's

Marine Vessel Rules that actually targeted the

emissions resulting from the fuel used (in other

words, the "effects" of [*54] the fuel). Of course,

we previously struck down these emission

standards as preempted by the Clean Air Act.

Goldstene, 517 F.3d at 1109-15. We further

indicated that in-use fuel requirements would not

be barred by the Clean Air Act. Id. at 1115.

CARB quite understandably drafted the Vessel

Fuel Rules in order to correct the fatal deficiency

identified in Goldstene, only for PMSA to now

claim that the resulting regulations cannot satisfy

the well-established effects test. In any case, we

conclude that the Vessel Fuel Rules are clearly

premised on the harmful effects of the fuel used

by the ocean-going vessels governed by the

regulations. In the apt words of the District Court,

"[t]he express purpose of the regulations . . . is to

reduce air pollutants affecting the State of

California by requiring ocean-going vessels to use

cleaner marine fuels." (ER24 (footnote omitted).)

Turning to the specific environmental effects, we

observe that: (1) in 2006, ocean-going vessels operating

within the applicable 24-mile zone were estimated to

generate, per day, approximately 15 tons of PM, 157 tons

of NOx, and 117 tons of SOx; (2) emissions from these

vessels are believed to constitute the single [*55] largest

source of SOx emissions in California; (2) the vessels'

daily PM emissions represent the equivalent of

approximately 150,000 big rig trucks traveling 125 miles

per day; (3) 27 million Californians, representing 80% of

the state's population, are exposed to these emissions; (4)

these emissions are known to cause cancer, respiratory

illnesses, and to increase the risk of heart disease, and

CARB estimated that the vessels' direct PM emissions

alone cause at least 300 premature deaths every single

year; and (5) the effects of the fuel use have long been

especially severe in the South Coast Air Basin region of

Southern California, with over 80% of the population in

this heavily populated region exposed to PM2.5 levels

exceeding federal standards. In fact, the harmful effects

giving rise to the Vessel Fuel Rules appear to be even

more severe than, for example, the somewhat more

indirect effect of criminal acts committed on a foreign

cruise ship on the high seas and on a state's tourism

industry.

Full implementation of the Vessel Fuel Rules should

significantly reduce these harmful effects (e.g., sulfur

oxide emissions should be cut by approximately 90%).

This should then result, inter [*56] alia, in health care

savings as well as the prevention of approximately 3,500

premature deaths and nearly 100,000 asthma attacks. In

addition, the South Coast District should finally be able

to comply with national air quality standards by the 2014

deadline and thereby avoid the threat of federal sanctions.

We add that the apparent effects of the Vessel Fuel

Rules on foreign and interstate commerce and navigation

provide additional support for our ruling here. In English

v. General Electric Co., 496 U.S. 72, 110 S. Ct. 2270,

110 L. Ed. 2d 65 (1990), the Supreme Court found that

federal law did not preempt a state law claim for

intentional infliction of emotional distress brought by an

employee at a nuclear-fuels production facility against

her employer arising out of alleged retaliatory actions

because of her safety complaints, id. at 74-90. The Court

specifically observed that the effect of the litigation

(specifically that, as employers find retaliation more

costly, they will be forced to deal with worker complaints

by other means, including altering their safety policies)

was "neither direct nor substantial enough to place

petitioner's claim in the pre-empted field [of nuclear

safety]." Id. at 85. The District Court [*57] likewise

emphasized that PMSA presented no evidence indicating

that the Vessel Fuel Rules impeded commerce or

navigation, observing in particular that: (1) PMSA

admitted that compliance is not technically impossible or

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2011 U.S. App. LEXIS 6239, *53
even especially difficult; (2) PMSA failed to show that

the required fuel is unavailable or otherwise would

adversely affect ship operations; and (3) any increased

cost, although estimated at approximately $30,000.00 per

vessel call, would appear to be relatively small in

comparison with the overall cost of a trans-Pacific

voyage (representing less than 1% of the cost of a typical

trans-Pacific voyage and approximately a $6.00 increase

per 20-foot shipping container) as well as the increased

costs eventually passed on to the ultimate consumer

(amounting, for instance, to an extra 12.5 cents in the cost

of a plasma TV).

Admittedly, we observe that the overall costs to the

shipping industry of complying with a rather expansive

regulatory program applicable to one of the largest and

most important trade routes in the world do appear to be

quite significant (with the industry-wide cost of

compliance estimated at $360 million annually and $1.5

billion through the end of 2014). [*58] However, we do

believe that PMSA still fails to show the absence of any

genuine issue of material fact with respect to the

regulations' impact on commerce and navigation. See.,

e.g., Ray v. Alt. Richfield Co., 435 U.S. 151, 179-80, 98 S.

Ct. 988, 55 L. Ed. 2d 179 (1978) (rejecting dormant

Commerce Clause challenge to state tugescort

requirement for oil tankers in part because it did not

"appear from the record that the requirement impedes the

free and efficient flow of interstate and foreign

commerce, for the cost of the tug escort for a 120,000

DWT tanker is less than one percent per barrel of oil and

the amount of oil processed at Puget Sound refineries has

not declined as a result of the provision's enforcement").

For the foregoing reasons, we determine that, in light

of the applicable presumption against preemption, the

District Court properly denied PMSA's motion for

summary judgment as to its claim of implicit field

preemption under the SLA.

B. The Dormant Commerce Clause And General

Maritime Law Preemption

The Commerce Clause of the United States

Constitution gives Congress the power "[t]o regulate

Commerce with foreign Nations, and among the several

States." U.S. Const. Art. I, § 8, cl. 3. The vital role of the

[*59] Commerce Clause to our federal system of

government is undisputed. It was designed in the first

place "to avoid the tendencies toward economic

Balkanization that had plagued relations among the

Colonies and later among the States under the Articles of

Confederation." Hughes v. Oklahoma, 441 U.S. 322, 325,

99 S. Ct. 1727, 60 L. Ed. 2d 250 (1979) (citation

omitted). Under the dormant Commerce Clause doctrine,

state legislation may be unconstitutional because of its

effect on national or foreign commerce even in the

absence of Congressional action. See, e.g., Barclay's

Bank PLC v. Franchise Tax Bd., 512 U.S. 298, 310, 114

S. Ct. 2268, 129 L. Ed. 2d 244 (1994). The Commerce

Clause power, nevertheless, still "belongs to Congress,

not the courts," and the whole objective of the dormant

Commerce Clause doctrine is to protect Congress's latent

authority from state encroachment. Fednav, Ltd., 547

F.3d at 624.

In Barber, we observed that the Supreme Court has

generally outlined a two-tiered approach to the dormant

Commerce Clause:

"[T]he first step in analyzing any law

subject to judicial scrutiny under the

negative Commerce Clause is to determine

whether it 'regulates evenhandedly with

only "incidental" effects on interstate

commerce, or discriminates against

interstate [*60] commerce.' As we use the

term here, 'discrimination' simply means

differential treatment of in-state and

out-of-state economic interests that

benefits the former and burdens the latter.

If a restriction on commerce is

discriminatory, it is virtually per se

invalid. By contrast, nondiscriminatory

regulations that have only incidental

effects on interstate commerce are valid

unless 'the burden imposed on such

commerce is clearly excessive in relation

to the putative local benefits.'

42 F.3d at 1194 (quoting Or. Waste Sys. Inc. v. Dep't of

Envtl. Quality, 511 U.S. 93, 99, 114 S. Ct. 1345, 128 L.

Ed. 2d 13 (1994)). In other words, there are two broad

categories of state regulations burdening interstate

commerce: (1) those that directly burden interstate

commerce or otherwise discriminate against out-of-state

interests; and (2) those that incidentally burden

commerce. See, e.g., Kleenwell Biohazard Waste & Gen.

Ecology Consultants, Inc. v. Nelson, 48 F.3d 391, 395

(9th Cir. 1995). Regulations falling under the first

category are generally struck down, while those in the

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2011 U.S. App. LEXIS 6239, *57
second group are reviewed under a balancing test. See,

e.g., id. Under this balancing test, regulations may violate

the Commerce Clause if the burdens they [*61] impose

so outweigh the putative benefits so as to render the

regulations unreasonable or irrational. See, e.g., UFO

Chuting of Haw., Inc. v. Smith, 508 F.3d 1189, 1196 (9th

Cir. 2007). In turn, this Court previously explained that

"[i]t is clear, however, that the Supreme Court used the

term 'direct' to refer to regulations whose central purpose

is to regulate commerce, usually in order to benefit local

interests." Nelson, 48 F.3d at 396.

The Commerce Clause imposes certain specific

restrictions with respect to the extraterritorial reach of

state law. These limitations "reflect the Constitution's

special concern both with the maintenance of a national

economic union unfettered by state-imposed limitations

on interstate commerce and with the autonomy of the

individual States within their respective spheres." Healy

v. Beer Inst., 491 U.S. 324, 335-36, 109 S. Ct. 2491, 105

L. Ed. 2d 275 (1989) (footnotes omitted). Accordingly,

the Commerce Clause prohibits state legislation

regulating commerce that takes place wholly outside of

the state's borders, regardless of whether the commerce

has effects within the state. See, e.g., id. at 336; Edgar v.

MITE Corp., 457 U.S. 624, 642-43, 102 S. Ct. 2629, 73 L.

Ed. 2d 269 (1982). Among other things, the court must

consider [*62] the practical effects of the regulatory

scheme, taking into account the possibility that other

states may adopt similar extraterritorial schemes and

thereby impose inconsistent obligations. See, e.g., Healy,

491 U.S. at 336-37. Nevertheless, in applying these

standards, a court must not overlook the fact that the

"critical consideration in determining whether the

extraterritorial reach of a statute violates the Commerce

Clause is the overall effect of the statute on both local

and interstate commerce." Id. at 337 n.14 (citing

Brown-Forman Distillers Corp. v. N.Y. State Liquor

Auth., 476 U.S. 573, 579, 106 S. Ct. 2080, 90 L. Ed. 2d

552 (1986)).

The foreign commerce context places further

constraints on state power because of " 'the special need

for federal uniformity.' " Barclays Bank PLC, 512 U.S. at

311 (quoting Wardair Canada Inc. v. Fla. Dep't of

Revenue, 477 U.S. 1, 8, 106 S. Ct. 2369, 91 L. Ed. 2d 1

(1986)). Accordingly, a court must also take into account

the federal government's "capacity to 'speak with one

voice when regulating commercial relations with foreign

governments.' " Id. (quoting Japan Line, Ltd. v. Cnty. of

Los Angeles, 441 U.S. 434, 448, 99 S. Ct. 1813, 60 L. Ed.

2d 336 (1979)).

This appeal further implicates the doctrine of general

admiralty or maritime law preemption, [*63] which

resembles the dormant Commerce Clause doctrine. The

Constitution provides that the judicial power of the

United States shall extend "to all Cases of admiralty and

maritime Jurisdiction." U.S. Const. Art. III, § 2, cl. 1. In

Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S. Ct.

524, 61 L. Ed. 1086 (1917), the Supreme Court held that

no state regulation is valid "if it contravenes the essential

purpose expressed by an act of Congress, or works

material prejudice to the characteristic features of the

general maritime law, or interferes with the proper

harmony and uniformity of that law in its international

and interstate relations," id. at 216. In Aubry, we

observed that "[o]ur review of relevant case authority

leads us to conclude that the general rule on preemption

in admiralty is that states may supplement federal

admiralty law as applied to matters of local concern, so

long as state law does not actually conflict with federal

law or interfere with the uniform working of the maritime

legal system." Aubry, 918 F.3d at 1422 (footnote

omitted). To determine whether there is any interference,

we must yet again apply a balancing test, weighing the

state and federal interests on a case-by-case basis. See,

e.g., [*64] In re Exxon Valdez, 484 F.3d 1098, 1101 (9th

Cir. 2007).

Although generally framed in dormant Commerce

Clause terms, PMSA advances a number of arguments in

support of its challenge to the Vessel Fuel Rules. In

addition to prior case law, it relies, inter alia, on Annex

VI of MARPOL and the ECA program, the Clean Air

Act, and two Presidential Proclamations purportedly

extending the "territorial sea" or "contiguous zone" of the

United States. 7 At their most fundamental level, these

contentions appear to rest on the fundamental role of

uniformity and the need for this country to speak with

only one voice in its dealings with other countries

without undue embarrassment arising from disparate state

regulatory schemes. After considering PMSA's various

arguments, we must ultimately reject the Commerce

Clause and general maritime law preemption claims at

this time. Simply put, the fact that the Vessel Fuel Rules

require ocean-going vessels to switch to cleaner fuels 24

miles from California's coast, and not 3 miles from the

coast, does not conflict with either the dormant

Commerce Clause or the fundamental principles of

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2011 U.S. App. LEXIS 6239, *60
general maritime law.

7 Specifically, Presidential Proclamation No.

5928, [*65] issued by President Reagan in 1988,

extends the "territorial sea of the United States" to

12 nautical miles from the United States's

baselines. Likewise, President Clinton issued

Presidential Proclamation No. 7219 in 1999,

which extends the "contiguous zone of the United

States" to 24 nautical miles from the respective

baselines. Both Proclamations state, inter alia, that

they do not amend or otherwise alter existing

federal or state law.

Initially, the regulatory scheme at issue here clearly

does not fall under the "direct" category of state

regulations because the central purpose of the Vessel Fuel

Rules is to protect the health and well-being of the state's

residents from the harmful effects of the fuel used by

ocean-going vessels. The otherwise even-handed and

generally applicable Vessel Fuel Rules also do not appear

to discriminate against any out-of-state interests. We

therefore are not presented with an example of state

economic protectionism or favoritism. We are instead

faced with an environmental regulatory scheme having

only an incidental or indirect effect on commerce. We

further note that the Supreme Court in Ray v. Atlantic

Richfield Co., 435 U.S. 151, 98 S. Ct. 988, 55 L. Ed. 2d

179 (1978), actually [*66] found that a state tug

requirement was not barred by the Commerce Clause

because, inter alia, the cost of a tug escort for a

120,000-ton tanker "is less than one cent per barrel of oil"

and there was no evidence that the requirement would

impede the free and efficient flow of commerce, id. at

179. As discussed in Section III.A.2., supra, the

regulations at issue here also appear to impose a

relatively light burden on navigation and commerce.

The Vessel Fuel Rules also do not apply to

commercial activities occurring "wholly outside" of the

territorial limits of California. They instead continue to

govern the fuel use of ocean-going vessels traveling to

and from California's ports while they are within the

state's own territorial waters. We further note that PMSA

evidently does not claim that the Vessel Fuel Rules

contravene any act of Congress (with the major exception

of the SLA) or prejudice any "characteristic feature" of

federal maritime law.

The Court therefore must turn to a balancing test

with respect to both the dormant Commerce Clause and

general maritime law preemption claims.

We recognize the importance of uniformity as well

as the unique role of the federal government in matters

[*67] of foreign relations and international trade. In fact,

the federal government, foreign countries, and

international bodies have continued to take steps to

control the critical problem of air pollution originating

from ocean-going vessels, most significantly in the

recently adopted ECA.

We further observe that we have emphasized that the

notion of uniformity takes on special importance with

respect to environmental regulation on the high seas. In

Hammond, we rejected the claim that Alaska's

prohibition against oil tankers discharging ballast from

their oil tanks into the state's territorial waters was

preempted by the PWSA and PTSA. Hammond, 726 F.2d

at 484-501. In a footnote, we expressly distinguished

between coastal environmental regulation and regulation

in deep waters: "Of course, as to environmental

regulation of deep ocean waters, the federal interest in

uniformity is paramount. Such regulation in most cases

needs to be exclusive because the only hope of achieving

protection of the environment beyond our nation's

jurisdiction is through international cooperation." Id. at

492 n.12. The Aubry Court likewise referenced this

footnote in its discussion of whether California's overtime

[*68] laws were preempted by federal admiralty or

maritime law. Aubry, 918 F.2d at 1426 n.24. In a

footnote, we explained that "our concern [in Hammond]

was clearly with regulation of international oil transport

and international environmental protection efforts" and

that "the federal interest in uniformity is not as great,

because the employees involved in [Aubry] are not

engaged in foreign, intercoastal, or coastwise voyages."

Id.

Nevertheless, we conclude that the interests

weighing in favor of striking down the Vessel Fuel Rules

are rather attenuated in the present circumstances. Among

other things, the District Court appropriately noted that

the federal statute implementing Annex VI of MARPOL

contains an express savings clause. See 33 U.S.C. § 1911

("Authorities, requirements, and remedies of this chapter

supplement and neither amend nor repeal any other

authorities, requirements, or remedies conferred by any

other provision of law. Nothing in this chapter shall limit,

deny, amend, modify, or repeal any other authority,

requirement, or remedy available to the United States, or

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2011 U.S. App. LEXIS 6239, *64
any person, except as expressly provided in this

chapter."). The Vessel Fuel Rules also contain a sunset

clause, [*69] and it is reasonable to predict that, once the

heightened standards established by the ECA go into

effect, the Vessel Fuel Rules will be terminated. In the

end, no federal (or international) environmental regime

specifically prohibits the state regulations at issue here.

See, e.g., Goldstene, 517 F.3d at 1115 (noting that Clean

Air Act permits state in-use requirements). With respect

to the Hammond (and Aubry) dicta, the District Court

reasonably noted that the language regarding the federal

interest in uniformity "does not apply here . . . inasmuch

as the United States has established a 24-mile contiguous

one for purposes of exercising territorial control" and

"[t]he area at issue in this case falls within that

twenty-four mile zone and does not extend to

international deep waters falling outside that boundary."

(ER35 n.4 (citing Presidential Proclamation No. 7219).)

Accordingly, we are not currently confronted with a

state attempting to regulate conduct in either another state

of the Union (such as in PMSA's example of a

hypothetical California regulatory scheme requiring

automobiles driving from Arizona to switch to certain

kinds of fuel 24 miles from the California border), in the

[*70] territory or waters of a foreign nation (such as, in

another example provided by PMSA, a regulation

governing fuel use in Shanghai harbor), or in the open

ocean waters hundreds or even thousands of miles from

the state's coast.

In contrast, the state of California clearly has an

especially powerful interest in controlling the harmful

effects of air pollution resulting from the fuel used by

ocean-going vessels while they are within 24 miles of the

state's coast. In Section III.A.2., supra, we discussed in

some detail the undisputed evidence regarding the highly

damaging and even life-threatening effects of this air

pollution on the people of California as well as the clear

benefits resulting from the regulations adopted by CARB.

The protection of our environment has repeatedly been

recognized as a legitimate and important state interest.

See, e.g., Huron Portland Cement Co., 362 U.S. at 442,

445-46, 448; Nelson, 48 F.3d at 398, 400-01; Aubry, 918

F.2d at 1426. Based on the record before us, the

exceptionally powerful state interest at issue here far

outweighs any countervailing federal interests. 8

8 Furthermore, we also should not overlook the

fact that the Vessel Fuel Rules are apparently

[*71] necessary in order for the South Coast

District to comply with federal air quality

standards by the applicable 2014 deadline (and

thereby avoid the possible imposition of various

sanctions by the EPA, including the loss of

billions of dollars in federal transportation funds).

At the very least, it appears to be especially

inappropriate to strike down state regulations as

contrary to the dormant Commerce Clause or the

doctrine of general maritime law preemption

when these same regulations are needed to

comply with basic federal standards in the first

place.

Therefore, we must reject PMSA's dormant

Commerce Clause and general maritime law theories at

this juncture. Our result is consistent with the

overwhelming weight of the case law.

We note that the Supreme Court in Huron Portland

Cement Co. rejected a Commerce Clause challenge to the

prosecution of a ship owner for violating a municipal

smoke abatement provision when its vessels were docked

at the city's port even though "[s]tructural alterations

would be required in order to insure compliance." 362

U.S. at 441. Emphasizing that the local ordinance

represented a generally applicable rule designed to

promote the health and welfare of [*72] the community,

the Court went on to reject the challenger's argument

"that other local governments might impose differing

requirements as to air pollution" as unsupported by the

record. Id. at 448. Likewise, it appears that no other state

in the Union has adopted, or is likely to adopt before the

full implementation of the ECA, any "competing or

conflicting" fuel use requirements. Id.

In Aubry, we likewise rejected the claim that the

doctrine of general maritime or admiralty law preemption

precluded the application of California's overtime pay

laws to California residents working on the high seas off

the California coast to protect the state's coastal

environment. Aubry, 918 F.2d at 1419-27. The Florida

Supreme Court in Stepansky also expressly determined

that a state court conviction for crimes committed on a

cruise ship on the high seas pursuant to Florida's special

maritime criminal jurisdiction statute did not violate the

general maritime law preemption doctrine. 761 So. 2d at

1033-34. Similarly, the Alaska Supreme Court rejected a

dormant Commerce Clause challenge to Alaska's

expansive and extraterritorial restrictions on crabbing.

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2011 U.S. App. LEXIS 6239, *68
Bundrant, 546 P.2d at 537-41. While we again

acknowledge [*73] that these various decisions may be

distinguishable on a variety of grounds, we believe that

they provide further support for upholding the California

regulations.

In the end, we acknowledge the unusual

characteristics and circumstances of the Vessel Fuel

Rules. We are clearly dealing with an expansive and even

possibly unprecedented state regulatory scheme.

However, the severe environmental problems confronting

California (especially Southern California) are

themselves unusual and even unprecedented. Under the

circumstances, we do not believe that the Commerce

Clause or general maritime law should be used to bar a

state from exercising its own police powers in order to

combat these severe problems.

IV.

For the foregoing reasons, we will affirm the District

Court's denial of PMSA's motion for summary judgment.

AFFIRMED.

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2011 U.S. App. LEXIS 6239, *72