9th Circuit Victory to Regulate Ballast Water

July 23, 2008 - The Ninth Circuit affirmed PEAC's arguments on behalf of Northwest Environmental Advocates, The Ocean Conservancy, and Sanfrancisco Baykeeper, upholding a district court order that the U.S. Environmental Protection Agency (EPA) repeal its 1973 ballast water exemption under the Clean Water Act.

Ballast water, discharged from ships for stabilization, is a major source of invasive species and other pollutants in waters of the United States. As recognized by the Ninth Circuit, invasive species harm native threatened and endangered species and cost our economy $137 billion per year, more than double the annual economic damage of all natural disasters in the U.S.

This significant decision comes in response to the long-standing efforts of PEAC, the Stanford Environmental Law Clinic, and our clients to repeal EPA's illegal rule exempting ships' discharges from the Clean Water Act's permitting requirements. The groups first petitioned EPA in 1999 to regulate ships' discharges. When EPA did not respond, PEAC and Stanford Environmental Law Clinic filed suit on behalf of our clients in 2001, resulting in a favorable court decision ordering EPA's response. In 2003, EPA finally responded to the petition, and refused to rescind the vessel exemption. We again sued EPA in district court to invalidate the 1973 EPA regulation that illegally exempts ballast water and other discharges from Clean Water Act permits. In 2005 and 2006, we won our claims before the district court, at which point EPA appealed to the Ninth Circuit Court of Appeals.

Nine years after the environmental groups' first petition to the EPA, the Ninth Circuit has affirmed that ships arriving in all United States ports will need to obtain discharge permits before dumping their ballast water or be in violation of the law. The decision means that more than 21 billion gallons of ballast water dumped into U.S. waters from international ports will now, for the first time, be subject to Clean Water Act regulation.

The case showcases PEAC’s environmental and educational missions. PEAC started the case in 1999 when then-third-year law student Brent Foster ‘99, now Executive Director of Columbia Riverkeeper, approached PEAC professors about submitting the initial petition. Brent worked on the petition and invited several other organizations to join. Since then, many other students have worked on the case, including PEAC staff attorney Dan Mensher ‘07, who wrote the merits of the Ninth Circuit brief as a student and now spearheads PEAC’s water quality and pollution control work, and law clerks Liz Crosson ‘08, who will join Environment California, and Lauren Goldberg ‘08, who will soon join Columbia Riverkeeper as staff attorney. Melissa Powers ‘01, a PEAC alum and now a tenure-track Assistant Professor at Lewis & Clark Law School, argued the case while a staff attorney at PEAC, co-counseling with Deborah Sivas at the Stanford Environmental Law Clinic.

See the press release, or click here for court filings and oral arguments.

Photo credit: SERC Marine Invasions Lab