A Waiver to Breath?

The people of California can't catch a break, or their breath. The U.S. 9th Circuit Court of Appeals rammed the state's efforts make the air around its ports more breathable. About 40 percent of the nation's container cargo goes through ports in Oakland, Long Beach and Los Angeles.

On Thursday, Feb. 28, the appeals court ruled that the state's ship emissions rule is preempted by federal Clean Air Act. Now the state must go begging for a waiver from the EPA, the same agency California is suing for denying it a waiver to regulate global warming pollution from vehicles.

In January 2007, California Air Resources Board started forcing ships to use low-sulfur fuel while running auxiliary diesel engines within 24 miles of the coast. Most ships run their auxiliary engines on bunker fuel, a dirtier fuel that is a major source of air pollution around ports.

In August a federal judge barred the state from enforcing the regulation, saying the state needed EPA approval. The lower court's decision was prompted by a lawsuit filed by the Pacific Merchant Shipping Assn., a group whose ships use the port of Oakland. The 9th Circuit upheld that decision. Now California must choose between appealing to the U.S. Supreme Court or seeking a waiver from the EPA. Don't hold your breath.

Meanwhile residents in port cities like West Oakland keep choking on diesel fumes. Children in West Oakland are seven times more likely to be hospitalized for asthma than the average child in California. For a better understanding of what the residents of West Oakland must live with, see West Oakland Residents Choking on Diesel Exhaust by the nonpartisan Pacific Institute.

The 9th Circuit's interpretation of the Clean Air Act sounds legally reasonable. But this is the kind of decision that makes ordinary people cynical and furious. The detriments to human health from diesel fumes and particulates are now well documented. The shipping companies haul in billions of dollars in profits and can easily afford to clean up their act.

Unfortunately for those who live near ports, the diesel trucks and trains that pick up the containers at the ports and distribute them, contribute as much pollution as the ships or more.

For a big picture look at ports and air quality see "U.S. Container Ports and Air Pollution: a Perfect Storm," findings of a 10-month effort in 2007 by Energy Futures that assessed air pollution control efforts at America’s top 10 container ports.