LQ Lawsuit Challenges Ballast Regulation

June 1, 2007
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If the Michigan Ballast Water Statute survives a challenge in federal court this week, it will be one of the most significant steps in history against a practice that has degraded the American ecosystem for nearly 400 years. Opponents argue it usurps federal authority and creates an overly complex regulatory system.

Ocean-going vessels have been introducing invasive species to North America for as long as there has been trans-Atlantic trade. The cover story in this month’s National Geographic, “America, Found & Lost,” details how the Jamestown tobacco trade likely introduced earthworms to the continent in piles of English stones and soil used as ballast.

Likewise, scientists believe that the ballast water dumped by ocean-going ships passing through the St. Lawrence Seaway is responsible for many of the 183 invasive species that currently inhabit the Great Lakes. And while the earthworm did wreak havoc on the worm-free Virginia woodlands, its impact is a far cry from the destruction caused by exotic invaders such as the zebra mussel, goby, ruffle and Eurasian milfoil.

“We spend billions of dollars a year on fighting these things,” said State

Sen. Patty Birkholz, R-SaugatuckTownship. “It’s a hidden cost to our business community and our consumers in the state.”

Municipal water and power companies regularly dispatch divers to remove zebra mussels from intake pipes. The Eurasian milfoil kills plants and fish in the state’s streams and lakes. The newest threat is viral hemorrhagic septicemia, a virus recently discovered in Lake Michigan near Milwaukee already responsible for large fish kills in Lake St. Clair and LakeOntario

“There is no line item on your electric bill that says ‘zebra mussel scrape-off,’” said Birkholz, adding that she had “threatened to introduce legislation to do that.”

Birkholz led the formation of the Great Lakes Legislative Caucus and introduced the 2004 bill that became the Michigan Ballast Water Statute. The law requires that ocean-going vessels obtain a Ballast Water Control General Permit from the Michigan Department of Environmental Quality to pass through state waters. To obtain the permit, vessels must agree not to discharge ballast water into the Great Lakes or agree to sterilize ballast with a method approved by the MDEQ for destroying exotic organisms.

The law went into effect in January. In March, a coalition of trade associations and shipping and dock companies sued the state in federal court in Detroit. The suit argues that the state does not have the authority to regulate the discharge of ballast water, and that it discriminates against ocean-going vessels by not requiring shippers that do not leave the Great Lakes system, commonly called Lakers, to acquire the permits. It also questions whether the technology is currently available to effectively treat ballast water.

“We’re not coming in with impunity and dumping ballast water,” said Stuart Theis, executive director of the U.S. Great Lakes Shipping Association, one of the plaintiffs in the ballast lawsuit. “We’re spending real dollars to figure this out. What we’re worried about are separate sets of regulations for every state on the Great Lakes. That is a troubling prospect.”

According to Theis, the majority of shippers has complied with the law and obtained permits. Regardless of the law, only a handful of vessels on the Great Lakes discharge ballast — ballast is only needed in ships that enter the Great Lakes with no cargo, which is rare. For shippers, the larger concern is the forthcoming possibility to acquire permits and follow different regulations in each of the Great Lakes states.

Such an environment is a distinct possibility. Similar laws are under consideration in Indiana, Minnesota and Wisconsin, with none stipulating that a permit from a neighboring state is sufficient alone. When oral arguments for the case are heard Wednesday morning in Detroit, the central argument will be whether the states have the authority to enforce such laws.

In a recent report, the NationalSeaGrantLawCenter concluded that there were too many legal precedents to accurately judge the legality of the ballast statue. The U.S. Coast Guard and the Environmental Protection Agency have presiding authority to regulate ballast discharge according to the Clean Water Act and other legislation, but the laws preserved the states’ ability to protect their waters.

At the core of the state’s argument is the federal government’s historical weakness in ballast regulation. The EPA refused to act against ships dumping ballast water until a federal court ordered it last year. It will not actively enforce ballast rules until late 2008. There are also federal and international statutes under development that could supersede the Michigan statute.

Birkholz, along with nearly a dozen environmental groups and other Great Lakes stakeholders, has filed an amicus brief on behalf of the DEQ in the lawsuit, FEDNAV Ltd. vs. Steven Chester, DEQ director.

Oddly, there appears to be little economic impact of the ballast law. While the technology to treat ballast water could be a significant investment, only a small number of ships may be required to use it. If the ballast law were to somehow completely deter ocean-going vessels from Michigan ports, a Grand Valley State University study last year estimated the economic impact at no more than $6 million — $55 million for the entire Great Lakes system. Ocean freighters account for only 5 percent of the cargo transported on the Great Lakes in a given year.

At West Michigan ports, there is virtually no traffic from ocean-going vessels, commonly known as “salties.”

At one time, Holland-based Louis Padnos Iron and Metal Co. regularly shipped product from Holland to destinations across the globe. It has not done so since the export opportunities for domestic scrap metal dissolved 15 years ago.

“Still, in the big picture of things, we don’t want to be creating barriers to overseas shipping,” said Mitch Padnos, vice president of marketing. “If you were to just say, ‘No ships,’ a lot of things would go up in price. … But speaking from a strictly environmental standpoint, something has to be resolved here.”      LQX

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