MI Ballast Water Statute Upheld

Tuesday, November 25, 2008

The US Court of Appeals for the Sixth Circuit has upheld the permit requirement of the Michigan Ballast Water Statute as a valid exercise of state authority.

Plaintiff ship owners, shipping associations, port terminal, and port association had challenged the permit requirement and treatment system requirement of the state statute, asserting that they were preempted by federal law and violated the United States Constitution. The federal district court disagreed with these contentions and dismissed plaintiff’s complaint. Plaintiff’s appealed. The appellate court looked first at the standing of each of the plaintiffs. It recognized that the ship owners and shipping associations were directly impacted by the state law, but found that the other plaintiffs were not affected and thus lacked standing to challenge the law.

The court then examined the pleadings and found them wanting as to the challenge against the treatment system requirement. This requirement provides that each ship that intends to discharge ballast water during port operations in the state must treat its ballast water with an approved system prior to such discharge. In the pleadings, though, plaintiffs never alleged that any of their vessels would discharge ballast water into waters of the state of Michigan. Therefore, the court found that the plaintiff ship owners and shipping associations lacked standing to challenge the treatment system requirement because their vessels would not be covered by its provisions.

Finally, the court held that the state permit requirement was not preempted by federal law and that the state requirement was not barred by the US Constitution. The court noted that the state permit requirement was not onerous, requiring only the payment of $225 in fees and completion of several forms. In this circumstance, a state statute that is not preempted by federal law need only be rationally related to a legitimate government purpose; it need not provide a perfect solution. Fednav, Limited v. Chester, No.07-2083 (6th Cir., November 21, 2008).

(Source: Holland & Knight)

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