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Michigan's Right to Regulate Ballast Water Treatment Upheld

In a ruling which is guaranteed to give ocean shipping companies heartburn, a federal judge in Michigan has ruled that Michigan’s controversial ballast water treatment law is constitutional. The ruling, which came down from the U.S. District of Michigan, now opens the doors for other states to consider similar measures. Wisconsin, Minnesota and Indiana legislators have been watching from the sidelines as a lawsuit brought by nine shipping companies and trade associations played out in court last week. The shipping firms had attempted to overturn a Michigan law that requires oceangoing vessels to treat or sanitize their ballast water to prevent the introduction of invasive species to the Great Lakes.

Michigan’s decision to enact a ballast water treatment law was loudly protested at the beginning of this year, and is largely viewed as an attempt to get the federal government to act on a problem that has festered for a decade. Domestic legislation to mandate a particular standard to regulate the treatment and discharge of ballast water has long languished in Washington as the Coast Guard and EPA try to get their arms around the complicated issue. The net result of the Michigan law, however, has been to isolate Michigan economically, without having any noticeable effect on the problem. With neighboring states absent of similar controls, invasive species can theoretically move from adjacent waters unimpeded. That could change, and soon.

Congress and the United States Coast Guard are currently working to formulate a national policy on the issue of invasive species and ballast water management. But with the potential of the EPA entering the mix, and competing standards in place (but not yet formalized or ratified by all member states) from the IMO, the standardization of rules to deal with the problem is likely at least a year away. In the meantime, any number of very promising technologies are already on the market and being tested on various marine platforms.

Shipping companies have previously been reluctant to install expensive ballast water management equipment, which ranges from $250,000 all the way to $1 million or more to purchase and install, because they could not be guaranteed that the equipment would be in compliance once the rules are in place. But programs such as the Coast Guard’s Shipboard Technology Evaluation Program (STEP) initiative may change those mindsets. In the meantime, competing and unilateral laws enacted by individual states are making the landscape for owners difficult, and in some cases even affecting commerce. STEP, on the other hand, has the potential to (a.) help technology developers test their systems and also incentivize ship operators to install equipment without fear that the equipment will be declared inadequate down the road when and if a standard is defined, and (b.) provides the Coast Guard and the general public with high quality information and data about how the systems work and how well they achieve the desired results.