State of Alaska v. Clinton et al

Filing 96

ORDER: re All Pending Motions: 48 Motion to Dismiss for Lack of Jurisdiction; 70 Motion to Dismiss for Lack of Jurisdiction; 15 Motion for Preliminary Injunction. Signed by Judge Sharon L. Gleason on 09/17/2013. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
STATE OF ALASKA et al.,
Plaintiffs,
v.
JOHN F. KERRY et al.,
Defendants.

Case No. 3:12-cv-00142-SLG

ORDER RE ALL PENDING MOTIONS

INTRODUCTION
The State of Alaska, later joined by the Resource Development Council for
Alaska as a plaintiff-intervenor, initiated this action to challenge the federal enforcement
of low-sulfur fuel requirements for marine vessels operating in certain Alaskan coastal
waters.
The low-sulfur requirements were implemented pursuant to the United States’
obligations as a party country to the International Convention for the Prevention of
Pollution from Ships, known as MARPOL. Annex VI of MARPOL designates certain
emission control areas (“ECAs”) in which sulfur, nitrogen, and other vessel emissions
are regulated more strictly than in other areas. In April 2009, the United States and
Canada jointly proposed amending MARPOL to include a North American ECA, which
includes the Southeast and Southcentral coasts of Alaska. The ECA amendment was
adopted and became part of MARPOL in March 2010.

The Secretary of State

subsequently accepted the amendment for the United States on August 1, 2011.
One year later, on August 1, 2012, the Environmental Protection Agency (“EPA”)
and the U.S. Coast Guard began jointly enforcing low-sulfur vessel fuel requirements in
the North American ECA. As of that date, marine vessels within the North American
ECA were required to use fuel with a sulfur content that does not exceed 10,000 parts
per million (“ppm”). Beginning in 2015, marine vessels within the North American ECA
will be required to use fuel with a sulfur content that does not exceed 1,000 ppm. 1
Currently pending before the Court are the State’s Motion for Preliminary
Injunction and two motions to dismiss filed by the Federal Defendants. For the reasons
1

Docket 9 (“SAC”) ¶ 1.

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discussed below, the Court grants the motions to dismiss and denies the motion for
preliminary injunctive relief.
FACTUAL AND PROCEDURAL BACKGROUND
I.

MARPOL.
MARPOL is a convention of the International Maritime Organization (“IMO”), a
specialized United Nations agency. 2 MARPOL was adopted in 1973 and amended in
1978. 3 The convention’s purpose is to reduce marine pollution by ships. 4
MARPOL currently contains six annexes, each of which addresses a different
type of marine pollution. 5 Annex VI, the annex implicated in this litigation, addresses air
pollution. 6 It was adopted by the IMO in 1997.
Annex VI designates ECAs, a term which it defines as:
an area where the adoption of special mandatory measures for emissions
from ships is required to prevent, reduce and control air pollution from NOx
or SOx and particulate matter or all three types of emissions and their
attendant adverse impacts on human health and the environment.
Emission control areas shall include those listed in, or designated under,
regulations 13 and 14 of this Annex. 7
Regulation 14 of Annex VI provides standards for sulfur oxides (Sox) emissions.
It specifies that the sulfur content of fuel used on board ships in all areas shall not

2

Until 1982, IMO was known as the Inter-Governmental Maritime Consultative Organization.

3

Dockets 9-1, 9-2 (SAC Exs. A, B).

4

Docket 9-1 (SAC Ex. A).

5

Annex I addresses oil; Annex II, noxious liquid substances carried in bulk; Annex III, harmful
substances carried in packaged form; Annex IV, sewage; and Annex V, garbage.

6

Docket 9-3 at 1 (MARPOL Annex VI).

7

Docket 9-3 at 3.

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exceed “4.50% m/m prior to 1 January 2012,” “3.50% m/m on and after 1 January
2012,” and “0.50% m/m on and after 1 January 2020.”8 More stringent requirements
apply within the ECAs identified in Regulation 14. In those areas, the sulfur content of
fuel shall not exceed “1.50% m/m prior to 1 July 2010,” “1.00% m/m on and after 1 July
2010,” and “0.10% m/m on and after 1 January 2015.” 9
II.

United States’ Adoption and Implementation of MARPOL.
In 1980, MARPOL was approved by two-thirds of the Senate. Later that same

year, Congress passed the Act to Prevent Pollution from Ships (“APPS”) to implement
MARPOL. 10 In April 2006, the Senate again approved MARPOL, including Annex VI.
In 2008, Congress amended APPS to implement Annex VI. 11 The North American ECA
was added to Annex VI in 2010. 12
III.

Amendment of MARPOL to Include the North American ECA.
Appendix III to Annex VI was implemented by Congress in the 2008 amendments

to APPS and sets forth criteria and procedures for designating ECAs. 13 Appendix III
states that an ECA “should be considered for adoption by the [IMO] if supported by a
demonstrated need to prevent, reduce and control emissions of NOx or SOx and

8

Docket 9-3 at 16 (Annex VI, Reg. 14(1)).

9

Docket 9-3 at 17 (Annex VI, Reg. 14(4)).

10

Docket 19 at 9 (citing 126 Cong. Rec. S9263-72 (daily ed. July 2, 1980)); 33 U.S.C. § 1901 et
seq.
11

SAC ¶ 20; Docket 19 at 9 (citing SAC Ex. C; 152 Cong. Rec. S3400 (daily ed. April 7, 2006);
Pub. L. 110-280, 122 Stat. 2611 (2008)).
12

SAC ¶¶ 20, 28.

13

Docket 9-3 at 30 (Annex VI, Appendix III).

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particulate matter . . . from ships.”14 It outlines the process for adopting an ECA: a
party to MARPOL submits an ECA proposal; the IMO assesses the proposal, taking into
account a specified set of criteria; if the proposal passes muster, it is adopted and
brought into force by means of an amendment to Annex VI. 15
MARPOL directs that a proposal for the designation of an ECA include the
following:
•

a description of the human populations and environmental areas at risk
from the impacts of ship emissions;

•

an assessment that emissions from ships operating in the proposed
area of application are contributing to ambient concentrations of air
pollution or to adverse environmental impacts. Such assessment shall
include a description of the impacts of the relevant emissions on
human health and the environment, such as adverse impacts to
terrestrial and aquatic ecosystems, areas of natural productivity, critical
habitats, water quality, human health, and areas of cultural and
scientific significance, if applicable. The sources of relevant data
including methodologies used shall be identified;

•

relevant information, pertaining to the meteorological conditions in the
proposed area of application, to the human populations and
environmental areas at risk, in particular prevailing wind patterns, or to
topographical, geological, oceanographic, morphological or other
conditions that contribute to ambient concentrations of air pollution or
adverse environmental impacts;

•

the nature of the ship traffic in the proposed emission control area,
including the patterns and density of such traffic;

•

a description of the control measures taken by the proposing Party or
Parties addressing land-based sources of NOx, SOx and particulate
matter emissions affecting the human population and environmental
areas at risk that are in place and operating concurrent with the
consideration of measures to be adopted in relation to provisions of
regulations 13 and 14 of Annex VI; and

14

Docket 9-3 at 30 (Annex VI, Appendix III(1)(1.3)).

15

Docket 9-3 at 30 (Annex VI, Appendix III(2)-(4)).

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•

the relative costs of reducing emissions from ships when compared
with land-based controls, and the economic impacts on shipping
engaged in international trade. 16

Appendix III also provides that “[t]he geographical limits of an emission control area will
be based on the relevant criteria . . . including emissions and deposition from ships
navigating in the proposed area, traffic patterns and density, and wind conditions.” 17
On April 2, 2009, the United States and Canada submitted a 74-page joint
petition to the IMO to create the following North American ECA, which would include
certain designated Alaskan coastal waters 18:

The petition referenced a Technical Support Document (“TSD”) that had been published
by the EPA in April 2009. 19

16

Docket 9-3 at 30-31 (Annex VI, Appendix III(3.1)(2)(3)-(8)).

17

Docket 9-3 at 31 (Annex VI, Appendix III(3.2)).

18

The petition is available at http://www.epa.gov/nonroad/marine/ci/mepc-59-eca-proposal.pdf.

19

The TSD is available at http://www.epa.gov/oms/regs/nonroad/marine/ci/420r09007.pdf.

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Article 16 of MARPOL outlines the IMO’s procedure for amending the
convention. 20 After being “adopted by a two-thirds majority of only the Parties to the
Convention present and voting,” the amendment is communicated to all parties to
MARPOL and deemed accepted unless certain types of objections are made. 21 Once
the amendment has been accepted, it becomes effective six months later with respect
to parties that have accepted it, but not with respect to parties that declared they did not
accept it or those that declared their express approval was necessary. 22
In March 2010, the IMO voted to amend Annex VI to designate the North
American ECA. 23 As a result, the ECAs listed in Regulation 14 of Annex VI now include
“the North American area as described by the coordinates provided in appendix VII to
this Annex.” 24 Appendix VII describes the North American ECA by a listed series of
geographic coordinates, and, as noted above, it includes Southeast and Southcentral
Alaskan coastal waters. 25
The ECA amendment was circulated to all MARPOL parties for acceptance. The
United States Secretary of State did not reject the amendment, nor did any other party
to MARPOL. As a result, the North American ECA entered into force as a matter of

20

Docket 9-1 at 12.

21

Docket 9-1 at 12-13 (Article 16(2)).

22

Docket 9-1 at 13-14 (Article 16(2)).

23

SAC ¶ 28.

24

Docket 9-3 at 16 (Annex VI, Reg. 14(3)(2)).

25

Docket 9-3 at 36-43 (Annex VI, Appendix VII).

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international law with respect to the United States and all other parties to MARPOL on
August 1, 2011. 26
IV.

EPA Action.
In January 2009, before the United States and Canada submitted their joint ECA

petition to the IMO, EPA issued a Regulatory Update entitled “Frequently Asked
Questions about the Emission Control Area Application Process” that expressed its
intention to include the designated portion of Alaska in the North American ECA. 27 The
Regulatory Update includes the following:
Will the coasts of Alaska and Hawaii (and other U.S. territories) be
included in the application? If not, can they be included in the
future?
Ideally, we would like to include all of the U.S. coasts in our application for
ECA designation, including Alaska, Hawaii, and the U.S. territories. To do
so, however, we will have to provide information that demonstrates a need
for control, as specified in the criteria for ECA designation. This is
challenging because, although our emissions modeling includes all 50
states, our air quality modeling does not extend beyond the 48 contiguous
states. Therefore, it will be necessary to find other ways to measure the
health and environmental impacts of marine emissions on health and
human welfare outside the continental United States.
We have not made a final determination on whether the coasts of Alaska
and Hawaii will be included in the initial U.S./Canada ECA application.
We are working with the Alaska DEC and Hawaii DOH to generate
information that would better inform us of the health and environmental
26

SAC ¶ 28; cf. Pac. Merch. Shipping Ass'n v. Goldstene, 639 F.3d 1154, 1160-61 (9th Cir.
2011) (“On March 27, 2009 . . . Canada and the United States jointly proposed, pursuant to the
procedures established by the International Maritime Organization (“IMO”), that an Emissions
Control Area (“ECA”) be established under Annex VI of the International Convention for the
Prevention of Pollution from Ships (“MARPOL”).
The IMO, which is responsible for
administering the treaty, evidently adopted the joint proposal on March 26, 2010 . . . . This
action makes the ECA binding on all treaty signatories.”), cert. denied, 133 S. Ct. 22 (2012).
27

SAC ¶ 25; Docket 19 at 12.
The Regulatory
http://www.epa.gov/nonroad/marine/ci/420f09001.pdf.
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Update

is

available

at

impacts that shipping may have in these states. We have not yet engaged
other U.S. territories on this issue.
We intend to submit an application for ECA designation at the earliest
possible date covering the areas for which we have the strongest case. If
the case for controlling additional areas is compelling, such areas would
be included in a future, supplemental application for ECA designations. 28
On August 28, 2009, after the ECA petition had been submitted but before the
IMO had voted to amend Annex VI, EPA published a Notice of Proposed Rulemaking
(“NPRM”)

that

included

proposed

rules

to

implement

MARPOL’s

low-sulfur

requirements in the proposed North American ECA, including Alaskan coastal waters. 29
During the one-month comment period, EPA received comments on the NPRM from
sources including the Resource Development Council for Alaska, Alaska Governor
Sean Parnell, and Alaska Senators Lisa Murkowski and Mark Begich. 30 In December
2009, EPA responded to the comments and published a Regulatory Impact Analysis. 31
On April 30, 2010, after Annex VI had been amended by the IMO but before the North
American ECA went into force, EPA published its Final Rule (“Marine Diesel Rule”) and
indicated that the Rule adopted “emission standards . . . equivalent to those adopted in
the amendments to Annex VI to . . . MARPOL,” including the effective dates for when
the new sulfur limits would become applicable in the North America ECA. 32
28

Regulatory Update at 5.

29

SAC ¶ 30; Docket 19 at 16-17 (citing Control of Emissions from New Marine CompressionIgnition Engines at or Above 30 Liters per Cylinder, 74 Fed. Reg. 44442 (Aug. 28, 2009)).
30

Docket 19 at 17-18 (citing SAC ¶ 31 and Exs. D, E, F).

31

SAC ¶ 32; Docket 19 at 18, 20.

32

Control of Emissions from New Marine Compression-Ignition Engines at or Above 30 Liters
per Cylinder, Final Rule (“Marine Diesel Rule”), 75 Fed. Reg. 22896, 22896 (Apr. 30, 2010).
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V.

Procedural History.
The State of Alaska filed its initial Complaint in this action on July 13, 2012,

followed by an Amended Complaint on July 16, 2012, and a Second Amended
Complaint (“SAC”) on September 18, 2012. 33

The SAC names as Defendants the

Secretary of State, EPA and its Administrator, the Department of Homeland Security
and its Secretary, and the Coast Guard and its Commandant (collectively, “Federal
Defendants”).

The SAC asserts four claims for relief: (1) the Secretary of State’s

decision to accept the ECA amendment violated the Administrative Procedure Act
(“APA”) and APPS and should be set aside; (2) enforcement of the ECA amendment as
domestic federal law violates the Treaty Clause and separation of powers; (3) EPA’s
Marine Diesel Rule violated the APA’s notice-and-comment rulemaking requirements;
and (4) applying the ECA to foreign-flagged ships exceeds EPA’s authority under the
APA and APPS. 34 The State has subsequently abandoned its third cause of action. 35
The SAC alleges that enforcement of the ECA in the waters off the coast of Alaska will
raise costs for marine vessels and that those higher costs will cause economic harm to
the State. 36 The SAC seeks declaratory relief as to the invalidity of the North American
ECA, as well as an injunction preventing the Defendants from enforcing the ECA in
Alaska.

33

Dockets 1, 5, 9.

34

SAC ¶¶ 44-61.

35

Docket 79 at 41 (“[T]he State agrees that its third cause of action should be dismissed.”).

36

SAC ¶ 1.

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The Resource Development Council for Alaska (“RDC”) intervened as a Plaintiff
and two groups of entities intervened as Defendants: the Center for Biological Diversity,
Environmental Defense Fund, Friends of the Earth, and Natural Resources Defense
Council (collectively, “Environmental Defendants”) and the South Coast Air Quality
Management District, Santa Barbara Air Pollution Control District, and Puget Sound
Clean Air Agency (collectively, “Clean Air Defendants”). 37
RDC is a statewide nonprofit membership organization whose members include
individuals and companies from Alaska’s oil and gas, mining, forest products, tourism,
and fisheries industries. 38

The Environmental Defendants are all nonprofit

organizations devoted to protecting marine and coastal ecosystems and to preserving
air quality for the health of coastal communities through participation in the
administrative process, litigation, and public education. 39 The Clean Air Defendants are
all clean air agencies charged with attaining health-based air quality standards in their
respective localities, as required by the Clean Air Act. 40
The State filed a Motion for Preliminary Injunction on September 28, 2012, which
was subsequently supported by RDC and opposed by all Defendants. 41 The Federal

37

Docket 55.

38

Docket 60 (“Intervenor Compl.”) ¶ 11.

39

Docket 13 at 4-5.

40

Docket 33 at 7-8.

41

Dockets 15, 61, 41, 52, 57.

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Defendants filed a Motion to Dismiss the Second Amended Complaint on November 9,
2012, which was opposed by the State. 42
RDC filed its Intervenor Complaint on November 21, 2012.

The Intervenor

Complaint names all Defendants in this action, incorporates many of the facts alleged in
the SAC by reference, and asserts three claims for relief that overlap with those
asserted by the State in the SAC: (1) violation of the Treaty Clause, (2) violation of the
nondelegation doctrine, and (3) violation of the separation of powers doctrine. 43

It

seeks a declaration that the North American ECA designation violates the Constitution
and an injunction preventing the EPA from enforcing the ECA in Alaska. 44 The Federal
Defendants filed a Motion to Dismiss RDC’s Intervenor Complaint on December 20,
2012, which was opposed by RDC. 45
Briefing on all three motions concluded on March 12, 2013. Oral argument was
not requested by any party and is not necessary to the Court’s determination of the
motions.
DISCUSSION
The Court turns first to the Federal Defendants’ Motions to Dismiss, which seek
dismissal of the State’s and RDC’s Complaints. Both motions were filed pursuant to
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and assert that this Court lacks

42

Dockets 48, 77.

43

Intervenor Compl. ¶¶ 32-41.

44

Intervenor Compl. ¶¶ A-C.

45

Dockets 70, 83.

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subject matter jurisdiction over this action and that the State and RDC have each failed
to state a claim upon which relief can be granted. 46
I.

Dismissal Standard.
A. Civil Rule 12(b)(1).
Federal Rule of Civil Procedure 12(b)(1) allows a party to seek dismissal of a
complaint for lack of subject matter jurisdiction. “Whenever it appears by suggestion of
the parties or otherwise that the court lacks jurisdiction of the subject matter, the court
shall dismiss the action.” 47 When faced with a challenge to its subject matter jurisdiction
under Rule 12(b)(1), a court must resolve that issue before determining whether a
complaint states a cause of action under Rule 12(b)(6). 48
“A federal court is presumed to lack jurisdiction in a particular case unless the
contrary affirmatively appears.” 49 The party asserting jurisdiction bears the burden of
establishing subject matter jurisdiction on a motion to dismiss under Rule 12(b)(1). 50
Challenges to subject matter jurisdiction can take two forms, facial and factual,
which the Ninth Circuit has explained as follows:
In a facial attack, the challenger asserts that the allegations contained in a
complaint are insufficient on their face to invoke federal jurisdiction. By
contrast, in a factual attack, the challenger disputes the truth of the
46

Dockets 48, 70.

47

Arbaugh v. Y&H Corp., 546 U.S. 500, 506 (2006) (quoting Fed. R. Civ. P. 12(h)(3)).

48

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94 (1998).

49

A-Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (quoting Stevedoring Servs. of Am.,
Inc. v. Eggert, 953 F.2d 552, 554 (9th Cir. 1992)).

50

In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984 (9th Cir.
2008) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); Stock W.,
Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989)).

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allegations that,
jurisdiction. 51

by

themselves,

would

otherwise

invoke

federal

Here, Defendants have presented factual challenges to the Court’s subject matter
jurisdiction over certain of the claims asserted. When ruling on a factual challenge to
subject matter jurisdiction, the Court may consider material outside the pleadings. 52
B. Civil Rule 12(b)(6).
Federal Rule of Civil Procedure 12(b)(6) permits a party to seek dismissal of an
action for failure to state a claim upon which relief can be granted. Under the “facial
plausibility” pleading standard established by the Supreme Court in Ashcroft v. Iqbal, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for
relief that is plausible on its face.’” 53 For purposes of the Federal Defendants’ 12(b)(6)
arguments to dismiss the SAC and the Intervenor Complaint, the Court accepts as true
the material factual allegations contained in the complaints and draws all reasonable
inferences in the non-moving parties’ favor. 54
II.

SAC Claim 1: Violation of APPS and the APA.
After the IMO adopts an amendment to MARPOL, it is not effective as a matter of

domestic law unless and until it is accepted by the United States. Section 1909 of APPS

51

Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (quoting Safe Air for Everyone v.
Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)).
52

Ass’n of Am. Med. Colls. v. United States, 217 F.3d 770, 778 (9th Cir. 2000) (quoting St. Clair
v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)).

53

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)).
54

Rouse v. U.S. Dep’t of State, 567 F.3d 408, 411 (9th Cir. 2009) (quoting Navarro v. Block,
250 F.3d 729, 732 (9th Cir. 2001)).
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provides the process within the United States for accepting or rejecting amendments to
MARPOL:
(a) Acceptance of certain amendments by the President
A proposed amendment to the MARPOL Protocol received by the United
States from the Secretary-General of the International Maritime
Organization pursuant to Article VI of the MARPOL Protocol, may be
accepted on behalf of the United States by the President following the
advice and consent of the Senate, except as provided for in subsection (b)
of this section.
(b) Action on certain amendments by Secretary of State
A proposed amendment to Annex I, II, V, or VI to the Convention,
appendices to those Annexes, or Protocol I of the Convention, received by
the United States from the Secretary-General of the Inter-Governmental
Maritime Organization pursuant to Article VI of the MARPOL Protocol,
may be the subject of appropriate action on behalf of the United States by
the Secretary of State following consultation with the Secretary, or the
Administrator as provided for in this chapter, who shall inform the
Secretary of State as to what action he considers appropriate at least 30
days prior to the expiration of the period specified in Article VI of the
MARPOL Protocol during which objection may be made to any
amendment received.
(c) Declaration of nonacceptance by the Secretary of State
Following consultation with the Secretary, the Secretary of State may
make a declaration that the United States does not accept an amendment
proposed pursuant to Article VI of the MARPOL Protocol. 55
The SAC’s first cause of action asserts that the Secretary of State violated APPS
by failing to take “appropriate action” on the ECA amendment, as required by Section
1909(b), and that the Secretary of State’s acceptance of the amendment violated the
APA because it “was arbitrary and capricious, an abuse of discretion, in excess of

55

33 U.S.C. § 1909. The Secretary referred to in the phrase “consultation with the Secretary” in
both subsections (b) and (c) is “the Secretary of the department in which the Coast Guard is
operating.” See 33 U.S.C. § 1901(a)(11).
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statutory authority, and otherwise not in accordance with law.” 56 Specifically, the State
asserts that the Secretary of State’s acceptance of the ECA was not an “appropriate
action” because he must consider each of the Appendix III criteria before accepting an
amendment to MARPOL, and certain of these criteria were not assessed for the Alaska
portion of the ECA.
The Defendants assert that this claim merits dismissal under Civil Rule 12(b)(1)
because the Court lacks subject matter jurisdiction to review this claim. They contend
that “Alaska’s first cause of action . . . is barred by the political question doctrine” and
that the State “seeks review that is expressly precluded under the APA.” 57
A. Political Question Doctrine.
The Ninth Circuit has held that the political question doctrine “is at bottom a
jurisdictional limitation imposed on the courts by the Constitution.”58 Accordingly, as this
issue implicates the Court’s subject matter jurisdiction, the Court first considers the
parties’ arguments under Rule 12(b)(1). 59
The Ninth Circuit explained in Corrie v. Caterpillar:
The political question doctrine first found expression in Chief Justice
Marshall's observation that “[q]uestions, in their nature political, or which
are, by the constitution and laws, submitted to the executive, can never be
made in this court.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2
L.Ed. 60 (1803). The Supreme Court has since explained that “[t]he
56

SAC ¶¶ 45-46.

57

Docket 49 at 16. The Defendants also assert that even if the Secretary of State’s action is
subject to judicial review, the claim should be dismissed under Rule 12(b)(6) because the ECA
amendment had a valid scientific basis and therefore complied with Appendix III.
58

Corrie v. Caterpillar, Inc., 503 F.3d 974, 981 (9th Cir. 2007).

59

See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94 (1998).

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nonjusticiability of a political question is primarily a function of the
separation of powers.” Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7
L.Ed.2d 663 (1962). 60
The conduct of foreign relations “is committed by the Constitution to the
executive and legislative [branches] . . . and the propriety of what may be done in the
exercise of this political power is not subject to judicial inquiry or decision.” 61 “However,
it is ‘error to suppose that every case or controversy which touches foreign relations lies
beyond judicial cognizance.’”62 And, a court “will not find a political question ‘merely
because [a] decision may have significant political overtones.’” 63 Rather, a court must
“undertake a discriminating case-by-case analysis to determine whether the question
posed lies beyond judicial cognizance.” 64
In Baker v. Carr, the plaintiffs sought a declaration that a state apportionment
statute was an unconstitutional deprivation of equal protection. The district court had
found the claim nonjusticiable under the political question doctrine.

The Supreme

Court, after conducting an extensive review of prior case law on the subject, held that
six factors should be considered in evaluating whether the political question doctrine
bars suit:
[1] a textually demonstrable constitutional commitment of the issue to a
coordinate political department; or [2] a lack of judicially discoverable and
manageable standards for resolving it; or [3] the impossibility of deciding
60

Corrie, 503 F.3d at 980.

61

Id. at 982 (quoting Oetjen v. Cent. Leather Co., 246 U.S. 297, 302 (1918)).

62

Id. (quoting Baker v. Carr, 369 U.S. 186, 211 (1962)).

63

Id. (quoting Japan Whaling Ass'n v. Am. Cetacean Soc'y, 478 U.S. 221, 230 (1986)).

64

Id. (quoting Alperin v. Vatican Bank, 410 F.3d 532, 545 (9th Cir. 2005)).

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without an initial policy determination of a kind clearly for nonjudicial
discretion; or [4] the impossibility of a court's undertaking independent
resolution without expressing lack of the respect due coordinate branches
of government; or [5] an unusual need for unquestioning adherence to a
political decision already made; or [6] the potentiality of embarrassment
from multifarious pronouncements by various departments on one
question.
. . . Unless one of these formulations is inextricable from the case at bar,
there should be no dismissal for non-justiciability on the ground of a
political question's presence. 65
In Baker, the Supreme Court ultimately concluded that the plaintiffs’ claim was
justiciable. And yet since then, Baker has been the dominant authority on the political
question doctrine.
Under Baker, if any one of its six factors is “inextricable from the case at bar,”
then dismissal of the action is warranted. Three of the factors are at issue here: the
second, fourth, and sixth Baker factors.
i.

Baker Factor Two:
Standards.

Lack of Judicially Discoverable and Manageable

The Federal Defendants assert that Sections 1909(b) and (c) of APPS “do not
include judicially manageable standards for reviewing the Secretary of State’s
decisions.”66 As cited above, 33 U.S.C. § 1909(b) and (c) provide that the Secretary of
State “may” take “appropriate action” on an amendment to a MARPOL Annex, or reject
the amendment.

65

Baker, 369 U.S. at 217.

66

Docket 49 at 31.

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(a) Relevance of Appendix III Criteria.
The State asserts that if the Court adopts its interpretation of APPS, “then there
is plenty of law to apply” because “the Court can assess whether the ECA proposal that
the Secretary of State accepted complied with the very specific requirements of
MARPOL and Appendix III.” 67 In this way, the State asserts, “Congress ensured that
only ECA amendments that comply with Appendix III would be accepted, for it cannot
be ‘appropriate action’ to accept an amendment that does not comply with the terms of
the treaty.” 68 Specifically, the State maintains that the Secretary of State improperly
accepted the inclusion of Alaska in the North American ECA because the amendment
“did not contain the environmental assessment or meteorological information required
by Appendix III.” 69
The State cites to legislative history indicating the Senate expected that the
“United States may seek the establishment of one or more [ECAs] in the United States
pursuant to the procedures set out in Appendix III to Annex VI.” 70 It asserts the cited
sources “show that the Senate approved Annex VI with the understanding that the
executive branch would comply with Appendix III when seeking to establish an ECA for
the United States.” 71 The State argues that “[i]t is only by interpreting ‘appropriate
action’ to mean, in the context of a proposed ECA, a duty to ensure compliance with
67

Docket 79 at 11.

68

Docket 19 at 24.

69

Docket 19 at 24.

70

Docket 19 at 25 (citing S. Exec. Rep. No. 109-13, at 4 (2006)).

71

Docket 19 at 26.

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Appendix III, that effect can be given to the Senate’s intention that ECAs be designated
consistent with Appendix III.” 72
The State also relies on the D.C. Circuit’s decision in Defenders of Wildlife, Inc.
v. Endangered Species Scientific Authority. 73

That case involved an international

convention that identified a number of endangered species, including bobcats, and
limited international trade of the species. The convention, however, did not specify a
quota for each participating nation. Rather, it was incumbent on each participating
nation to develop its own export quotas. The convention specified that each nation was
to establish a Scientific Authority to determine and monitor the number of export permits
to be granted by that nation, and a Management Authority to ensure compliance.
Congress implemented the convention through the Endangered Species Act of
1973 (“ESA”). The ESA directed the President to establish the two authorities which
“shall do all things necessary and appropriate to carry out the functions of the
[authorities] under the Convention.”74 The Secretary of the Interior was designated as
both the Management and Scientific Authority. 75

The Scientific Authority published

findings regarding bobcats and established export quotas based on those findings. The
plaintiffs challenged the export quotas, asserting the convention had not been
implemented by Congress, and the Scientific Authority’s actions were not in
conformance with the convention.

The federal defendants argued there was “no

72

Docket 19 at 26.

73

Docket 19 at 27 (citing Defenders, 659 F.2d 168 (D.C. Cir. 1981)); Docket 79 at 13 (same).

74

Defenders, 659 F.2d at 174.

75

Id. at 172 n.2.

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meaningful basis” for reviewing the agency actions “because the Convention provide[d]
merely generalized standards . . . and Congress ha[d] neither implemented the
substance of nor particularized those standards.” 76
The D.C. Circuit held the case was justiciable. It determined that Congress had
implemented the convention. And it cited the ESA’s directive that the Secretary of the
Interior “shall do all things necessary and appropriate” to carry out the functions of the
Scientific Authority and Management Authority under the convention. As a result, “the
Convention [was] ‘a source of rights enforceable by an individual litigant in a domestic
court of law’” pursuant to Administrative Procedure Act, 77 which directs a court to set
aside agency action that is “arbitrary and capricious and not in accordance with law.” 78
Citing Defenders, the State asks this Court to “find that the Secretary of State’s
duty under APPS to take ‘appropriate action’ makes Appendix III a source of
enforceable rights” and to “set aside the Secretary of State’s acceptance of the ECA . . .
because the ECA proposal did not comply with Appendix III.” 79 However, the agency
action in Defenders differs significantly from that here in two ways. First, in Defenders
the plaintiffs challenged actions that the agency had undertaken specifically to
effectuate the international convention, and they asked the court to evaluate whether
those actions satisfied the United States’ obligations under the convention.

76

The

Id. at 175.

77

Id. at 174-75 (quoting People of Saipan v. U.S. Dep’t of Interior, 502 F.2d 90, 97 (9th Cir.
1974)).

78

Administrative Procedure Act § 706(2)(A), 5 U.S.C. § 706(2)(A) (2012).

79

Docket 19 at 27-28.

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convention itself did not specify the quotas, only the methodology to use to determine
those quotas.

In contrast, here Plaintiffs challenge the federal government’s

acceptance of an international amendment to MARPOL that specifies the precise area
of the ECA, and they ask the Court to determine whether that international amendment
is consistent with the convention’s terms.

Second, the implementing statute in

Defenders explicitly established the convention as the relevant source of authority when
it directed that the Secretary of State “shall do all things necessary and appropriate to
carry out” the convention’s functions. By contrast, here APPS simply provides that a
MARPOL Annex amendment “may be the subject of appropriate action” by the
Secretary of State. APPS does not mandate any particular action by the Secretary of
State, or define “appropriate action” as action necessary to fulfill obligations under the
convention, as was explicitly done in Defenders. 80
Defenders holds that a court may review agency actions, undertaken pursuant to
implementing legislation that specifically mandates the agency’s compliance with an
international agreement, to ensure that those actions are consistent with the
implementing law that incorporates the international agreement. This Court does not
read Defenders as holding that a court may or should review an agency action that
simply accepts an amendment to an international agreement to ensure that the
amendment is consistent with other provisions of the international agreement. 81 Thus,
80

Cf. 33 U.S.C. § 1903(c)(1) (“The Secretary shall prescribe any necessary or desired
regulations to carry out the provisions [of MARPOL].”).
81

Cf. Docket 41 at 12 (Clean Air Defendants’ Opp. to Mot. for Injunctive Relief) (“There is no
indication that Congress intended the Secretary to second-guess the evidence supporting a
proposal submitted by the United States itself and duly approved by the authorized agency, the
International Maritime Organization.”).
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Defenders does not resolve the question of whether the political question doctrine bars
review of this claim.
The State also asserts that the Ninth Circuit’s decision in Hopson v. Kreps
involved a similar question. 82

Hopson involved regulations the U.S. Department of

Commerce (“DOC”) had adopted pursuant to the International Whaling Convention Act
of 1949, which Congress had enacted to implement the International Whaling
Convention (“IWC”). 83

The IWC created an international commission to establish

whaling regulations and amend them as necessary. In 1977, the commission amended
its regulations to eliminate an exception that had existed for native subsistence whale
hunting. Had the United States lodged a formal objection to the amendment within 90
days, the amendment would have been inapplicable to the United States.

But the

United States did not object, and the DOC subsequently implemented the amended
regulations.

The plaintiff in Hopson brought suit, arguing that because the DOC’s

authority to implement the regulations came from the IWC (via implementation by the
1949 Act), and because the regulations at issue exceeded the jurisdiction of the
commission, the DOC lacked the statutory authority to implement the regulations.
Specifically, the plaintiff asserted that the commission exceeded its jurisdiction because
the IWC was applicable only to commercial whaling vessels and not to the small boats
used by Eskimos.
The Hopson court defined the “particular question posed” as “whether the
Commerce Department exceeded limits on its statutory authority in promulgating [the]
82

Docket 79 at 21 (citing Hopson, 622 F.2d 1375 (9th Cir. 1980)).

83

Hopson, 622 F.2d at 1376-77.

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regulations.” 84 The government argued that the suit was barred by the political question
doctrine, but the Ninth Circuit found its arguments unpersuasive. It explained that under
Ninth Circuit precedent, claims that “went to the very existence of the power of the
executive to act as it did” had been considered justiciable. 85 The Hopson court held that
“the criteria enunciated [in Baker v. Carr] generally do not apply to claims that the
executive has exceeded specific limitations on delegated authority.” 86

The court

determined that the claims in Hopson were not barred by the political question doctrine,
even though the evaluation of the plaintiffs’ claim would require the interpretation of the
international convention. Such interpretation was necessary in order to determine if the
agency had exceeded the statutory authority conferred upon it by the legislation that
had implemented the international convention.
Here, by contrast, Plaintiffs are not challenging the Secretary of State’s authority
to accept MARPOL Annex amendments. 87

MARPOL clearly provides for the

designation of ECAs by amendment to Annex VI and APPS clearly allows the Secretary
of State to accept such amendments. Rather, Plaintiffs challenge the manner in which
the Secretary of State’s authority was exercised and propose standards by which it
should be judged.

84

Id. at 1379.

85

Id. (citing United States v. Decker, 600 F.2d 733, 737 (9th Cir. 1979)).

86

Id. at 1378 (citing Baker v. Carr, 369 U.S. 186, 217 (1962)).

87

The State and RDC do dispute the constitutionality of APPS’s delegation of authority, but that
implicates different causes of action which are discussed separately infra.
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The Ninth Circuit was careful to identify Hopson as an exception to Baker, and
explained that it was looking to the IWC only to ascertain whether the DOC had been
authorized to implement the regulations. The court wrote that “although ‘(i)t is the role
of the judiciary to interpret international treaties and to enforce domestic rights arising
from them,’ treaties are relevant to the interpretation of congressional enactments only
to the extent that Congress makes them relevant.” 88 The Ninth Circuit stressed that if
the treaty is not self-executing, “it is not the treaty but the implementing legislation that
is effectively ‘law of the land.’” 89 Thus, Hopson does not support the State’s argument
that in providing that the Secretary of State “may take appropriate action,” APPS
incorporated by reference the MARPOL Appendix III criteria.
Accordingly, the Court finds that APPS’s authorization to the Secretary that he
“may” take “appropriate action” does not require the Secretary of State to independently
apply the criteria of Appendix III. As a result, Appendix III does not provide “judicially
discoverable and manageable standards” for the Court to apply in evaluating the
Secretary of State’s action.
(b) Meaning of “Appropriate Action.”
The State next argues that even if “appropriate action” does not refer to the
Appendix III criteria, the Court must—as a matter of statutory construction—attribute
some meaning to Section 1909(b)’s “appropriate action” language in order to avoid

88

Hopson, 622 F.2d at 1380 (emphasis added) (internal citation omitted) (quoting Decker, 600
F.2d at 737).
89

Id. (emphasis added) (quoting L. Henkin, Foreign Affairs and the Constitution 159 (1972)).

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rendering that language superfluous. 90

The State contrasts subsection (b) with

subsection (c), which allows the Secretary of State to “make a declaration that the
United States does not accept an amendment.” The State maintains that in subsection
(c), Congress clearly intended to accord the Secretary of State unfettered discretion to
reject amendments. The State asserts that if Congress had intended the Secretary to
have similarly unfettered discretion to accept amendments, it would have used similarly
straightforward language in Section 1909(b). Instead, the State asserts that because
Congress used term “appropriate action” in Section 1909(b), that term must have a
more restrictive meaning.
The State cites to the Supreme Court’s decision in Zivotofsky ex rel. Zivotofsky
v. Clinton as authority for its assertion that this question of statutory interpretation is not
barred by the political question doctrine. 91 That case concerned a statute that allowed
Americans born in Jerusalem to choose to have “Israel” listed as their place of birth on
their passports.

The State Department refused to follow the law based on its

“longstanding policy of not taking a position on the political status of Jerusalem.” 92
Zivotofsky brought suit against the Secretary of State challenging the agency’s refusal
to put “Israel” on his passport.

The district and circuit courts “ruled that this case

involves a political question because deciding Zivotofsky's claim would force the Judicial
Branch to interfere with the President's exercise of constitutional power committed to

90

Docket 79 at 15-16.

91

Docket 79 at 17 (citing Zivotofsky, 132 S. Ct. 1421 (2012)); cf. Docket 52 at 31 (citing
Zivotofsky in passing for another purpose).

92

Zivotofsky, 132 S.Ct. at 1424.

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him alone.” 93 The Supreme Court reversed, explaining that “[t]he federal courts are not
being asked to supplant a foreign policy decision of the political branches with the
courts' own unmoored determination of what United States policy toward Jerusalem
should be,” but rather were being asked to “enforce a specific statutory right.” The
Court added that the lower courts had misconstrued the issue as implicating the second
Baker factor.

Instead, the Court characterized the case as presenting a question

regarding the constitutionality of the statutory provision at issue, thus involving “familiar
principles of constitutional interpretation.”94 Zivotofsky involved a private individual’s
statutory right, and thus it presents no clear parallels or precedent helpful to this case.
The State also asserts that the Ninth Circuit’s decision in Center for Policy
Analysis on Trade and Health (“CPATH”) v. Office of U.S. Trade Representative,
“makes it clear that determining whether a particular statute provides justiciable
standards requires a close examination of the statute’s language, legislative history, and
other indicia of legislative intent.” 95 However, the legislative history of APPS gives no
indication that Congress intended “appropriate action” to have a specific meaning.
Given this silence, the Court finds the most likely meaning of “appropriate action” to be
the one posited by the Environmental Defendants: that “appropriate action” simply
“entails taking the steps necessary according to the treaty amendment procedures of
MARPOL—either explicit acceptance or tacit acceptance—to communicate the United

93

Id. at 1427.

94

Id. at 1427-30.

95

Docket 79 at 19 (citing CPATH, 540 F.3d 940, 946 (9th Cir. 2008)).

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States’ acceptance of an amendment.”96 This does not, however, provide “judicially
discoverable and manageable standards” for resolving the SAC’s first claim. 97
Accordingly, the second Baker factor supports the Defendants’ assertion that the
SAC’s first cause of action is nonjusticiable.
ii.

Baker Factor Four: Impossibility to Review Without Expressing Lack of
Respect.
The Federal Defendants assert that “judicial evaluation of the Secretary’s

decision would express a lack of respect due Congress and the Executive” because it
“would interfere with the statutory accommodation established by the political branches
in section 1909 for the United States’ acceptance or rejection of amendments to certain
annexes to MARPOL.” 98
The State asserts that “courts routinely adjudicate statutory claims.” 99 However,
as discussed above in the context of the second Baker factor, this claim does not
require statutory interpretation, as APPS does not provide any standards for reviewing
the Secretary of State’s decision. The State also asserts that declining to review this
claim would require holding “that Congress was powerless to limit the Secretary of
State’s discretion to accept amendments to MARPOL,” which would “presumptively
96

Docket 57 at 19.

97

As the Supreme Court has noted, “[i]t is difficult to draw any meaningful guidance from [the
Clean Water Act’s] use of the word ‘appropriate,’ which means only ‘specifically suitable: fit,
proper.’ Webster’s Third International Dictionary.” Ruckelshaus v. Sierra Club, 463 U.S. 680,
683 (1983). The Court also cited with approval to a Circuit Judge who had noted “the absence
of any clue as to the meaning of ‘appropriate,’” and that “there is no comprehensible or
principled meaning for ‘appropriate.’” Id. at 683 n.2 (quoting Ala. Power Co. v. Gorsuch, 672
F.2d 1, 24, 32 (D.C. Cir. 1982)).

98

Docket 93 at 12, 18-19.

99

Docket 79 at 20.

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favor the Executive Branch at the expense of the Legislative Branch in violation of the
separation of powers doctrine.” 100
The Federal Defendants respond that here, Congress chose not to place
statutory limits on the Secretary of State’s discretion. 101

They point out that when

Congress amended the approval authority granted in 33 U.S.C. § 1909(b) to include the
amendments to Annex VI, the Secretary of State had already acted on several other
amendments pursuant to the authority granted by Section 1909(b) and that “the Senate
was well aware that the United States was considering the designation of one or more
ECAs along the coasts of the United States.” They assert that “[g]iven the statutory
accommodation reached between Congress and the Executive, which preserved the
Secretary’s wide discretion, this Court could not inject itself into that process without
unduly impinging on those other branches of government.” The Federal Defendants
maintain that “barring review here under the political question [doctrine] would not favor
the Executive over Congress. Rather, it would show both political branches the respect
they are due.”102
The Court finds that the language of APPS and the legislative history of Section
1909 clearly indicate that Congress intended to place decisions on MARPOL Annex
amendments within the Secretary of State’s discretion. Accordingly, judicial review of
the Secretary of State’s decision to accept the North American ECA would demonstrate

100

Docket 79 at 20.

101

Docket 93 at 19.

102

Docket 93 at 19.

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a lack of respect for both Congress’s intent and the Secretary of State’s executive
powers.
iii.

Baker Factor Six:
Pronouncements.

Potentiality of Embarrassment from Multifarious

The Clean Air Defendants assert that a judicial action overturning the Secretary
of State’s acceptance of the ECA proposal that was submitted by the United States
“clearly presents the ‘potentiality of embarrassment from multifarious pronouncements
by various departments on one question,’ which typifies a political question.” 103

In

making this argument, the Clean Air Defendants cite the D.C. Circuit’s decision in
Adams v. Vance. 104 In Adams, the Secretary of State had determined not to object to
an International Whaling Commission ban on Eskimo hunting of bowhead whales. This
decision was challenged in the district court, which issued an injunction ordering the
Secretary of State to object.

The D.C. Circuit overturned the district court’s order

because it was “based on the unwarranted assumption that such objection would not
harm the United States.” 105 Although the D.C. Circuit found it unnecessary to decide if
the suit presented a nonjusticiable political question, it did hold that the district court’s
order was “an unwarranted intrusion on executive discretion in the field of foreign policy
and agreements.”106

In reaching this decision, the D.C. Circuit “accorded great

103

Docket 41 at 14 (quoting Baker v. Carr, 369 U.S. 186, 217 (1962); Made in the U.S.A. Found.
v. United States, 242 F.3d 1300, 1318 (11th Cir. 2001)).

104

Docket 41 at 13 (citing Adams, 570 F.2d 950 (D.C. Cir. 1978)).

105

Adams, 570 F.2d at 952.

106

Id.

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deference” to the affidavit testimony of the Assistant Secretary of State for Oceans and
International Environmental and Scientific Affairs, which stated:
If the United States now refuses to do what it has asked of others and
objects to a restraint recommended by the Scientific Committee of the
International Whaling Commission despite an early opportunity for review,
this government's credibility and leadership in international whale
conservation would be severely compromised. Foreign governments
would regard this U.S. objection to the very first amendment which affects
a U.S. domestic interest as evidence of U.S. hypocrisy on whale
conservation. Other governments would be less likely to credit U.S.
determination to act forcefully on future issues of whale conservation. The
weakening of U.S. leadership in this field would make it much more
difficult for the United States to achieve its long term objectives for
international cooperation in respect to conservation of whales. It is
possible that an objection by the United States at this time could lead to a
cycle of objections by others which would damage the effectiveness of the
established quota system. 107
The record in this case contains the Declaration of David A. Balton, the Deputy
Assistant Secretary for Oceans and Fisheries in the Bureau of Oceans and International
Environmental and Scientific Affairs at the Department of State. Mr. Balton’s testimony
expresses concerns remarkably similar to those expressed by the Assistant Secretary in
Adams. 108

Mr. Balton has extensive experience with marine conservation in the

international context. 109 His Declaration states, in relevant part:
The United States has a very significant and ongoing foreign policy and
national security interest in demonstrating to other nations that our nation
complies with its legal obligations under treaties and other binding
international instruments. . . . Additionally, in the MARPOL context itself, a
perception that the United States has not met its obligations would give
rise to concern by other parties, including close friends and allies, that the

107

Id. at 956 n.13.

108

Docket 52-3 (Ex. C to U.S. Opp. Br.).

109

Docket 52-3 at 1, ¶¶ 1-2.

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United States may similarly renege on obligations stemming from other
amendments to MARPOL Annexes.
The foreign policy consequences from the perception that the United
States has failed to meet its obligations with respect to the North America
ECA are particularly acute because that ECA was initiated, promoted,
pursued, and adopted at the urging of the United States. If we are seen
as failing to implement the terms of our own initiative, it would seriously
compromise the credibility and leadership role of the United States among
other parties to MARPOL, among other IMO members and, more broadly,
in our efforts to promote international norms to reduce marine pollution.
We would expect close allies like Canada and France, who had partnered
with the United States in promoting this ECA, to view our conduct as
undermining an important joint initiative, which was intended to reduce
pollution affecting not only U.S. interests but also Canadian and French
ones. Other countries that supported the United States' proposal for a
North American ECA would likely view the United States' nonimplementation negatively and question whether and how closely to
support similar initiatives by the United States in the future. Finally, if the
United States, as a central country in the North American ECA, were
perceived as not implementing its obligations with respect to this ECA, it
could weaken the incentives for other parties to abide by their obligations
relating to the ECA and undermine the efficacy of the ECA and MARPOL
more generally. A weakening of this longstanding and carefully crafted
international legal framework to combat marine pollution would directly
harm the interests of the United States in protecting our waters and
coastline and the well-being of the many people and industries in the
United States that depend on them. 110
The Court finds that Mr. Balton’s Declaration provides persuasive evidence that the
sixth Baker factor is implicated here. 111 An order by this Court invalidating the North
American ECA that the United States itself had proposed to MARPOL jointly with
Canada would likely present a “potentiality of embarrassment from multifarious
pronouncements” by the United States government to the international community.
110

Docket 52-3 at 3, ¶¶ 7-8.

111

Cf. Docket 41 at 13-14 (Clean Air Defs.) (“It must be remembered that the ECA involves the
interests of Canada as well as the United States. An order invalidating the Secretary’s
acceptance would implicate foreign policy and foreign commerce considerations that raise a
political question.”).

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The Court has determined that three Baker factors are inextricable from the
SAC’s first cause of action. As a finding that even one factor is inextricable renders a
claim a nonjusticiable political question, the Court finds that the SAC’s first claim is not
subject to judicial review. That claim is therefore dismissed.
B. Agency Discretion.
Even if the political question doctrine did not bar review of the SAC’s first claim,
the Federal Defendants assert that a provision in the Administrative Procedure Act also
renders the claim unreviewable. 112

The APA contains a basic presumption of

reviewability of agency action. 113 However, 5 U.S.C. § 701(a)(2) provides that the APA
does not apply “to the extent that . . . agency action is committed to agency discretion
by law.” This is “a very narrow exception” that applies in limited circumstances. 114 The
Federal Defendants argue the exception applies here because (1) there is no law to
apply in evaluating the Secretary of State’s decision, and (2) the decision is
unreviewable because it requires a complicated balancing of factors in the realm of
foreign affairs, which is within the Secretary of State’s particular expertise. 115
i.

No Law to Apply.
In Heckler v. Chaney, the Supreme Court analyzed the APA’s language,

acknowledging the apparent contradiction of barring review of “action committed to
112

Docket 52 at 38 (citing 5 U.S.C. § 701(a)(2)); Docket 93 at 22 (same).

113

Lincoln v. Vigil, 508 U.S. 182, 190 (1993).

114

Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971), abrogated on other
grounds by Califano v. Sanders, 430 U.S. 99 (1977).

115

Docket 52 at 38.
Docket 41 at 14-15.

The Clean Air Defendants also briefly addressed the first argument.

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agency discretion” and adopting “abuse of discretion” as the standard for reviewable
agency action. 116 The Supreme Court reconciled this contradiction as follows:
[E]ven where Congress has not affirmatively precluded review, review is
not to be had if the statute is drawn so that a court would have no
meaningful standard against which to judge the agency's exercise of
discretion. In such a case, the statute (“law”) can be taken to have
“committed” the decisionmaking to the agency's judgment absolutely. This
construction avoids conflict with the “abuse of discretion” standard of
review in § 706—if no judicially manageable standards are available for
judging how and when an agency should exercise its discretion, then it is
impossible to evaluate agency action for “abuse of discretion.” 117
As this exception depends on the existence of “judicially manageable standards,” it
overlaps significantly with the second Baker factor. The Court discussed this factor
above and determined that APPS does not provide judicially manageable standards by
which to review the Secretary of State’s decision to accept the ECA amendment. 118
Certain of the parties’ arguments are more relevant to the specific issue of the Secretary
of State’s discretion, however, so the Court addresses them here.
The Federal Defendants maintain that APPS’s use of the permissive word “may”
indicates Congress’ recognition of “the Secretary of State’s broad discretion to make
decisions on the proposed amendments to MARPOL.” 119

The Federal Defendants

maintain that the provisions of 33 U.S.C. § 1909(b) and (c) “do not dictate the
circumstances under which the Secretary of State would take a particular action” and
“are silent about why the Secretary of State might take action, what factors the
116

470 U.S. 821, 829 (1985).

117

Id. at 830.

118

See supra at 18-28.

119

Docket 49 at 31.

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Secretary of State would consider in deciding whether to take action, and other
circumstances under which the Secretary of State would take action on the proposed
amendments.”120 The Federal Defendants assert that this silence on what criteria the
Secretary of State might consider, and the statute’s failure even to specify what action
might be taken, clearly leaves the decision “to the Secretary of State’s discretion.”121
The Supreme Court has held that, as a principle of statutory construction, “[t]he
word ‘may,’ when used in a statute, usually implies some degree of discretion.” 122 For
example, in Hinck v. United States, the Supreme Court discussed a section of the
Internal Revenue Code that provided the Secretary of the Treasury “may abate the
assessment of all or any part” of interest that had accrued on unpaid federal income
tax. 123 In interpreting that provision, the Court noted that “the federal courts uniformly
held that the Secretary's decision not to grant an abatement was not subject to judicial
review.” 124 The Court approvingly remarked that those decisions “recognized that [the
provision] gave the Secretary complete discretion to determine whether to abate
interest, ‘neither indicat[ing] that such authority should be used universally nor providing
any basis for distinguishing between the instances in which abatement should and

120

Docket 49 at 32.

121

Docket 49 at 32.

122

United States v. Rodgers, 461 U.S. 677, 706 (1983); cf. Martin v. Franklin Capital Corp., 546
U.S. 132, 136 (2005) (in the context of court-awarded attorney’s fees, explaining that “[t]he word
‘may’ clearly connotes discretion” (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 533 (1994))).
123

550 U.S. 501, 503 (2007) (quoting 26 U.S.C. § 6404(e)(1) (1994 ed.)).

124

Id.

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should not be granted.’” 125 Accordingly, “[a]ny decision by the Secretary [whether to
abate] was . . . ‘committed to agency discretion by law’ under the Administrative
Procedure Act and thereby insulated from judicial review.” 126
In Southern Railway Co. v. Seaboard Allied Milling Corp., the Supreme Court
considered a statute that provided the agency “may, upon the complaint of an interested
party or upon its own initiative, order a hearing.” 127 The Court held that the agency’s
decision whether to order a hearing was unreviewable.

The Court explained,

“[a]lthough we will not lightly interpret a statute to confer unreviewable power on an
administrative agency, we have no choice in this case [because] ‘there is persuasive
reason to believe that [nonreviewability] was the purpose of Congress.’” 128 In reaching
this decision, the Court considered the statute’s language, which was “silent on what
factors should guide the Commission's decision,” and found that that “on the face of the
statute there is simply ‘no law to apply’ in determining if the decision is correct.” 129 The
Court also analyzed the structure of the relevant act, which used mandatory language
(“shall”) in other provisions, and the act’s legislative history, which indicated the relevant
statute “was designed to avoid [the] disruptive consequences of judicial interference.”130

125

Id. at 504 (quoting Selman v. United States, 941 F.2d 1060, 1063 (10th Cir. 1991)).

126

Id. (internal citation omitted).

127

442 U.S. 444, 455 (1979) (quoting 49 U.S.C. § 15(8)(a)).

128

Id. at 454 (internal citations omitted) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140
(1967), abrogated by Califano v. Sanders, 430 U.S. 99 (1977)).

129

Id. at 455-56.

130

Id. at 456-60.

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The State attempts to distinguish the cases cited by the Federal Defendants,
asserting that many of them “involve agencies acting in an enforcement capacity and
say nothing about the reviewability of the Secretary of State’s decision to accept the
ECA amendment.”131 The State specifically addresses Hinck, asserting it is inapposite
for two reasons: (1) because here, Appendix III of Annex VI provides “readily available”
standards for assessing the Secretary of State’s decision, and (2) because Hinck
“involved an executive officer acting in a law enforcement capacity, where decisions are
traditionally not subject to judicial review.” 132 The Court has already addressed and
found unpersuasive the State’s first point. 133 The State cites the following language
from a different case, Heckler v. Chaney, to support the second point: “This Court has
recognized on several occasions over many years that an agency’s decision not to
prosecute or enforce, whether through civil or criminal process, is a decision generally
committed to an agency’s absolute discretion.” 134 Heckler was a case that addressed
an agency’s discretion to refuse to initiate enforcement proceedings. 135 But neither
Hinck nor the instant case is a case challenging an agency decision not to prosecute.
Rather, of significance to this case, the Court in Hinck held that after Congress added

131

Docket 79 at 29. Notably, in its briefing on the political question doctrine, the State cites to
enforcement cases as controlling precedent to support its argument that APPS imports the
Appendix III criteria.
132

Docket 79 at 29.

133

See supra at 18-28.

134

Docket 79 at 29 (citing Heckler, 470 U.S. 821, 831 (1985)).

135

Heckler, 470 U.S. at 831.

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an abuse of discretion standard to the statute, a disgruntled taxpayer was accorded a
right to judicial review of a refusal to abate. 136
The State also argues that APPS’s use of “may” only gives the Secretary of
State discretion to choose between 33 U.S.C. § 1909 (b) or (c), not to determine how to
proceed within (b). 137 The State asserts that “[t]o accept the United States’ argument
that the Secretary of State has discretion when acting under § 1909(b) would mean that
under that section [the Secretary] can take inappropriate action on an amendment to
MARPOL, which is an absurd reading of the statute that the Court should reject.”138
The argument is not without some merit. But in the Court’s view, the statutory language
as drafted does not accord a litigant the right to challenge the appropriateness of the
Secretary’s decision. Stated differently, the statute accords the agency, and not a court,
the discretion to determine what action is appropriate with respect to a MARPOL
amendment under Annex VI.
The Supreme Court has qualified the general construction of “may” as implying
discretion, holding that this principle “can be defeated by indications of legislative intent
to the contrary or by obvious inferences from the structure and purpose of the
statute.” 139 As discussed extensively in this section and in the context of the second
Baker factor above, the language of Section 1909(b) and its failure to constrain or guide
136

Hinck v. United States, 550 U.S. 501, 504, 507 (2007) (“It is true that by providing an abuseof-discretion standard, Congress removed one of the obstacles courts had held foreclosed
judicial review of [abatement] determinations.”).
137

Docket 79 at 27.

138

Docket 79 at 27-28 (emphasis in original).

139

United States v. Rodgers, 461 U.S. 677, 706 (1983).

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the Secretary of State’s action indicates that Congress intended to place the
acceptance of a MARPOL Annex amendment soundly within the Secretary of State’s
discretion. In contrast, other sections of APPS use mandatory rather than permissive
language and specify factors the agency should consider when taking action. 140 Finally,
the committee report containing the section-by-section analysis of APPS, which is
discussed more extensively below, 141 states that Section 1909 “provides for
consultation” by the Secretary of State regarding “what action should be taken” with
respect to proposed amendments, and it states that the Secretary of State “is
empowered” to declare the United States’ non-acceptance of MARPOL Annex
amendments. While the report does not specifically state that the Secretary of State is
similarly empowered to accept amendments, it indicates that the purpose of Section
1909(b) was to create a “rapid amendment process” for MARPOL Annexes. 142 Thus,
although the report does not explicitly commit acceptance of amendments to the
Secretary of State’s discretion, when read as a whole, it more strongly supports that
interpretation than the one the State presents.

140

E.g., 33 U.S.C. § 1908(b) (“In determining the amount of the penalty, the Secretary, or the
Administrator as provided for in this chapter, shall take into account the nature, circumstances,
extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree
of culpability, any history of prior offenses, ability to pay, and other matters as justice may
require.“); cf. S. Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 456 (1979) (“Congress
did not use permissive language such as that found in § 15(8)(a) when it wished to create
reviewable duties under the Act. Instead, it used mandatory language, and it typically included
standards to guide both the Commission in exercising its authority and the courts in reviewing
that exercise.” (emphasis added)).

141

See infra at 46-48.

142

H.R. Rep. No. 96-1224, at 18 (1980), reprinted in 1980 U.S.C.C.A.N. 4849, 4864.

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Based on the foregoing, the Court finds that Section 1909(b) provides no law to
apply, and therefore the decision to accept the ECA amendment was committed to the
Secretary of State’s discretion.
ii.

Complicated Balancing of Factors.
In Newman v. Apfel, the Ninth Circuit explained the second circumstance in

which the Supreme Court has determined that the limited exception of judicial
nonreviewability pursuant to 5 U.S.C. § 701(a)(2) applies: “that in which the agency's
action requires ‘a complicated balancing of a number of factors which are peculiarly
within [the agency's] expertise’ including the prioritization of agency resources,
likelihood of success in fulfilling the agency's statutory mandate, and compatibility with
‘the agency's overall policies.’” 143 As the Supreme Court stated in Heckler, an “agency
is far better equipped than the courts to deal with the many variables involved in the
proper ordering of its priorities.” 144
The Federal Defendants maintain that this exception applies here as well
because “broad reservations of discretion to the Executive Branch regarding foreign
relations are not uncommon and . . . actions taken pursuant to such reservations
typically are exempt from judicial review.” 145 In their Reply, the Federal Defendants
identified several factors involved in the Secretary of State’s decisions to accept
MARPOL Annex amendments, including “evaluation of their individual merits, the effect

143

Newman v. Apfel, 223 F.3d 937, 943 (9th Cir. 2000) (quoting Heckler v. Chaney, 470 U.S.
821, 831 (1985); Lincoln v. Vigil, 508 U.S. 182, 193 (1993)).

144

Heckler, 470 U.S. at 831-32.

145

Docket 52 at 43.

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that the amendment would have on the United States and our interests, including our
efforts under MARPOL, and the effect on other countries and our relations with
them.” 146
However, Heckler applied this exception specifically to an agency’s decision not
to act. 147 Following Heckler, the Ninth Circuit has emphasized that this exception is
“limited to those situations in which there is no meaningful standard against which to
judge an agency's decision not to act.” 148 The facts of this case do not fit within that
framework. Although the acceptance of the ECA amendment was technically made
through a lack of objection, the Court considers it an affirmative decision by the
Secretary of State to accept the amendment. Accordingly, the Court finds that the
complicated balancing of factors exception does not apply to the facts of this case.
C. Conclusion as to SAC Claim 1.
For the foregoing reasons, Claim 1 of the SAC is dismissed for lack of subject
matter jurisdiction.

Accordingly, the Court will not address Defendants’ alternative

arguments under Rule 12(b)(6).
III.

SAC Claim 2 and Intervenor Complaint Claims 1–3.
The second cause of action in the SAC asserts that “[u]nder the Treaty Clause

and the separation of powers doctrine, the Secretary of State and EPA cannot
unilaterally convert an international obligation like the ECA amendment into domestic
146

Docket 93 at 28.

147

Heckler, 470 U.S. at 831; cf. Lincoln, 508 U.S. at 193 (applying exception to decision not to
allocate funds from a lump-sum appropriation to a specific program).
148

Port of Seattle, Wash. v. F.E.R.C., 499 F.3d 1016, 1027 (9th Cir. 2007) (citing Heckler, 470
U.S. at 830).
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federal law.” 149 Specifically, it alleges that the Secretary of State’s acceptance of the
ECA amendment violated the Treaty Clause and therefore “did not create domestic
federal law . . . because it was not made by the President with the advice and consent
of the Senate” and “was never implemented pursuant to legislation passed by both
houses of Congress.” 150

The SAC alleges that to the extent APPS authorized the

Secretary of State’s actions, “Congress has unconstitutionally yielded its lawmaking
powers and the Senate’s treaty-making role—and those of future Congresses—to the
executive branch.”151
Similarly, the first cause of action in the Intervenor Complaint asserts that the
Secretary of State’s failure to obtain the advice and consent of the Senate before
accepting the ECA amendment and APPS—to the extent it authorizes such action—
violate the Treaty Clause. 152 The second cause of action asserts that by authorizing the
IMO to make domestic federal law, “APPS amounts to an unconstitutional delegation of
Congress’s lawmaking authority to an unaccountable international organization.” 153 The
third cause of action asserts that “[t]o the extent APPS permits the Secretary of State to
make the IMO’s amendments to Annex VI enforceable domestic law by not rejecting
those amendments, Congress unconstitutionally yielded its lawmaking powers and the
Senate’s treaty-making role to the executive branch,” thereby violating the separation of
149

SAC ¶ 52.

150

SAC ¶¶ 50-51.

151

SAC ¶ 53.

152

Intervenor Compl. ¶¶ 32-34.

153

Intervenor Compl. ¶¶ 36-37.

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powers doctrine and rendering EPA’s enforcement of the North American ECA
unconstitutional. 154
Together, the Intervenor Complaint’s first three causes of action and the SAC’s
second cause of action assert that the ECA amendment should not be given effect
because the Secretary of State lacked the constitutional authority to accept it. The
Federal Defendants moved to dismiss all four claims under Rule 12(b)(1) and Rule
12(b)(6).

Given the overlapping nature of these claims, the Court addresses them

together.
A. Enforceability of the ECA Amendment in the United States.
The Treaty Clause of the United States Constitution allows the President to make
international treaties “by and with the Advice and Consent of the Senate.” 155 Two types
of treaties can be entered: self-executing and non-self-executing.

A treaty is self-

executing when it “is ‘equivalent to an act of the legislature,’ and . . . ‘operates of itself
without the aid of any legislative provision.’” 156 By contrast, a non-self-executing treaty
“may comprise [an] international commitment[] [but is] not domestic law unless
Congress has either enacted implementing statutes or the treaty itself conveys an
intention that it be ‘self-executing’ and is ratified on these terms.’”157 The parties agree
that MARPOL and Annex VI were enacted into domestic law by APPS. The State
154

Intervenor Compl. ¶¶ 39-40.

155

U.S. Const. art. II, § 2, cl. 2.

156

Medellin v. Texas, 552 U.S. 491, 505 (2008) (quoting Foster v. Neilson, 27 U.S. 253, 314
(1829), overruled in part by United States v. Percheman, 32 U.S. 51 (1833)).
157

Id. (quoting Igartua–De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (en
banc)).

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maintains that the subsequent North American ECA amendment at issue in this
litigation never came validly into force in the United States, as the Senate did not
approve it and Congress did not implement it. The Defendants disagree, maintaining
that both the Senate and Congress authorized the Secretary of State to accept the ECA
amendment ex ante, 158 and that such approach is constitutionally permissible.
i.

Political Question Doctrine.
As a jurisdictional threshold matter, the Federal Defendants and the Clean Air

Defendants maintain that the political question doctrine bars this Court from reviewing
whether an international agreement must follow the advice-and-consent process of the
Treaty Clause. 159
The Federal Defendants and the Clean Air Defendants rely heavily on Made in
the USA Foundation v. United States, where the Eleventh Circuit determined that
whether the North American Free Trade Agreement (“NAFTA”) was a “treaty” and thus
subject to the requirements of the Treaty Clause was a nonjusticiable political
question. 160

However, Made in the USA involved an international commercial

agreement, and the parties disagreed over whether it was a treaty or not. Here, no
party disputes that MARPOL is a treaty. The question before the Court is whether
APPS’s delegation of power to the Secretary of State exceeded the bounds of
constitutional authority. Made in the USA does not resolve this question.
158

“Ex ante” is defined as “[b]ased on assumption and prediction, on how things appeared
beforehand, rather than in hindsight.” Black’s Law Dictionary 642 (9th ed. 2009).
159

Docket 93 at 30-32; Docket 41 at 15-16.

160

Docket 71 at 14; Docket 41 at 16 (citing Made in the USA, 242 F.3d 1300, 1302, 1312 (11th
Cir. 2001)).
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The Federal Defendants also make arguments under Baker and the Supreme
Court’s subsequent discussion of Baker in Goldwater v. Carter, asserting that reviewing
this claim would implicate foreign policy and other prudential concerns. 161 However, as
discussed above, in Hopson v. Kreps the Ninth Circuit held “that the criteria enunciated
[in Baker] generally do not apply to claims that the executive has exceeded specific
limitations on delegated authority.” 162 Indeed, the language the Supreme Court used in
Baker renders the inapplicability of the Baker factors to this issue even clearer. The
Supreme Court explained that “[t]he doctrine of which we treat is one of ‘political
questions,’ not one of ‘political cases.’ The courts cannot reject as ‘no law suit’ a bona
fide controversy as to whether some action denominated ‘political’ exceeds
constitutional authority.” 163 Given this clear directive, the Court agrees with RDC that
“[b]ecause the Constitution sets forth the requirement of Senate consent in the Treaty
Clause, determining whether the Treaty Clause requires Senate consent to the ECA
amendment falls squarely within the Court’s province.” 164 Thus, the Court has subject
matter jurisdiction over this issue and may consider it under Rule 12(b)(6).
ii.

Senate Approval.
The SAC asserts that the Secretary of State’s acceptance of the ECA

amendment “did not create domestic federal law under the Treaty Clause . . . because it

161

Docket 71 at 13 (citing Baker v. Carr, 369 U.S. 186, 217 (1962); Goldwater, 444 U.S. 996,
998 (1979) (Powell, J., concurring)).

162

622 F.2d 1375, 1378 (9th Cir. 1980).

163

Baker, 369 U.S. at 217.

164

Docket 83 at 13.

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was not made by the President with the advice and consent of the Senate.” 165 Similarly,
RDC asserts that “the Treaty Clause necessarily applies with equal force to treaty
amendments, preventing them from becoming U.S. law without Senate advice and
consent.” 166
Preliminarily, the parties dispute whether Congress intended renewed Senate
advice and consent to be part of the acceptance process for MARPOL Annex
amendments. The Defendants maintain that the Senate gave its advice and consent
when it approved Annex VI with the understanding that future designations of ECAs
would not be referred to the Senate for further action. 167 RDC asserts that Congress
intended the prospective approval of amendments to apply only to technical
amendments to MARPOL. 168 It cites to the legislative history of the bill that became
APPS, H.R. 6665, to support this assertion. 169 The bill was referred to the House
Committee on Merchant Marine and Fisheries, which produced a report recommending
its passage. In the report’s section-by-section analysis, the committee commented on
the section that later became 33 U.S.C. § 1909. The committee explained that “[t]his
section requires the advice and consent of the Senate to any proposed amendments to

165

SAC ¶ 50.

166

Docket 61 at 10 (emphasis in original).

167

See, e.g., Docket 74 at 7.

168

Docket 83 at 9; see also Intervenor Compl. ¶ 17 (citing H.R. Rep. No. 96-1224, at 18, 23
(1980), reprinted in 1980 U.S.C.C.A.N. 4849, 4864, 4869).

169

Docket 83 at 21-23 (quoting S. Exec. Rep. No. 96-36, at 2 (1980); S. Treaty Doc. No. 108-7,
at X (2003); S. Exec. Rep. No. 109-13, at 6 (2006); S. Hrg. No. 109-324 (2005)).
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the MARPOL Protocol Articles.” 170 However, it explained that amendments to MARPOL
Annexes were subject to a different process involving the Secretary of State:
This rapid amendment process provides for relatively rapid updating of
technical provisions without requiring the traditional, but more
cumbersome, treaty revision process that will still be required for the
MARPOL Protocol Articles. This rapid amendment process is necessary
to stay abreast of new technology, thereby ensuring effective control of
pollution from ships operating in the marine environment. 171
The Federal Defendants assert that “RDC fails to acknowledge [a] threshold,
dispositive textual issue,” which is that a limitation to technical amendments does not
appear in the statutory language of APPS. 172

Rather, they contend, “the ECA

amendment fits within the express terms of Section 1909(b),” and “the ECA designation
was among the types of amendments expressly highlighted by the Senate in its
consideration that certain MARPOL amendments would not be brought to the Senate
for its advice and consent.”173 They identify documents in the legislative history of the
ratification of Annex VI that support their position, 174 several of which are also cited by

170

H.R. Rep. No. 96-1224, at 18 (1980), reprinted in 1980 U.S.C.C.A.N. 4849, 4864.

171

Id.

172

Docket 71 at 16.

173

Docket 71 at 16.

174

Docket 52-1 at 6 (S. Treaty Doc. No. 108-7, at VI, X (2003) (Secretary of State’s letter
submitting Annex VI to the President) (“The United States may seek the establishment of SOX
Emission Control Areas in certain areas pursuant to the procedures set out in Appendix III to
Annex VI. . . . Pursuant to longstanding practice under the MARPOL Convention, U.S.
acceptance of amendments to Annex VI will not require further advice and consent by the
Senate.”)); S. Exec. Rep. No. 109-13, at 2, 4 (2006) (relying on Secretary of State’s submittal
letter); S. Hrg. No. 109-324, at 41 (2005) (comments of Senator Biden) (“Amendments to
MARPOL Annexes proceed through a simplified amendment procedure [and] U.S. acceptance
of amendments to Annex VI would not, therefore, involve Senate consent.”).
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the Environmental Defendants. 175

RDC asserts that the Federal Defendants

“selectively quote” documents in the legislative history and maintains that a closer look
indicates the Senate “understood the executive could implement only certain types of
amendments” without additional approval. 176
The Court finds that overall, the parties’ citations clearly indicate the Senate was
aware that certain types of amendments would be approved without further Senate
involvement.

This Court need not determine exactly what references to “technical”

amendments in the House committee report may have meant, as the plain language of
the statute is unambiguous and therefore dispositive: 33 U.S.C. § 1909(a) specifically
requires “the advice and consent of the Senate” for amendments to MARPOL proper. 177
However,

Section

1909(b)

expressly

exempts

certain

amendments—including

“proposed amendment[s] to Annex I, II, V, or VI to the Convention”—from that
requirement. 178
iii.

Congressional Implementation of the ECA Amendment.
The SAC also asserts that “[t]he ECA amendment . . . never became domestic

federal law because it was never implemented pursuant to legislation passed by both

175

Docket 74 at 12-13.

176

Docket 83 at 21.

177

33 U.S.C. § 1909(a).

178

33 U.S.C. § 1909(b); 33 U.S.C. § 1909(a) (“A proposed amendment to the MARPOL Protocol
received by the United States from the Secretary-General of the International Maritime
Organization pursuant to Article VI of the MARPOL Protocol, may be accepted on behalf of the
United States by the President following the advice and consent of the Senate, except as
provided for in subsection (b) of this section.” (emphasis added)).

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houses of Congress.” 179 RDC supports the State’s arguments in its briefing. 180 The
Federal Defendants disagree, contending that the North American ECA “entered into
force for the United States consistent with both the Senate’s understanding in giving its
advice and consent to Annex VI and with its implementation through [the APPS]
legislation passed by both houses of Congress.” 181 The Clean Air Defendants and the
Environmental Defendants support the Federal Defendants’ position. 182
The State relies on Medellin v. Texas to support its arguments. 183

Medellin

involved a judgment of the International Court of Justice (“ICJ”), Avena, which resolved
a dispute between several Mexican nationals, including Medellin, and the United States.
The ICJ found that the United States had violated an article of the Vienna Convention in
its dealings with those individuals who had been convicted in state courts within the
United States. The President issued a memorandum stating that the United States
would meet its obligations under Avena by having state courts give effect to that
decision. Medellin filed a habeas corpus petition in Texas state court seeking to enforce
his rights under Avena. The state court dismissed the petition on the grounds that
Avena and the President’s memorandum were not directly enforceable federal domestic
law that would preempt the state limitation on the filing of successive habeas petitions.
The Supreme Court agreed with the state court. It explained that the relevant treaty
179

SAC ¶ 51.

180

Docket 61 at 19-20.

181

Docket 52 at 45-46.

182

Docket 41 at 23-24; Docket 57 at 20-23.

183

Docket 19 at 34-35 (citing Medellin, 552 U.S. 491 (2008)).

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sources indicated that ICJ judgments were binding only between nations who were
parties in the suit. Because Avena had not been implemented in the United States
through legislation, it was not binding on the state court. The Supreme Court also held
that the President’s memorandum did not make the Avena decision enforceable
domestic law because the President was not authorized by the relevant treaty sources
or congressional action to implement the judgment. 184
The Federal Defendants distinguish Medellin from the present action, pointing
out that Medellin turned on whether the relevant treaties were self-executing, as it was
undisputed that no implementing legislation existed. 185 Here, by contrast, there is no
dispute that MARPOL is non-self-executing and that there is a specific legislative act
authorizing its implementation. APPS expressly implements amendments to Annex VI
by making it “unlawful to act in violation of the MARPOL Protocol” and by defining
“MARPOL Protocol” to include “any modification or amendments to the Convention,
Protocols or Annexes which have entered into force for the United States.” 186
The Federal Defendants assert that “[t]o the extent Alaska is arguing that
implementing legislation can only render an international commitment enforceable if
Congress passes such legislation following the negotiation and conclusion of the
international commitment, that is equally wrong. Congressional ex ante authorization
for international agreements extends to the earliest days of the nation.”187 They cite
184

Medellin, 552 U.S. at 506, 523-530.

185

Docket 52 at 47; Medellin, 552 U.S. at 506.

186

Docket 52 at 46 (quoting 33 U.S.C. §§ 1907(a), 1901(a)(4)-(5)); Docket 57 at 20 (same).

187

Docket 52 at 46-47; see also Docket 71 at 20; Docket 93 at 33.

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examples of implementing legislation for other treaties that involved ex ante
authorization for entering into and amending international agreements. 188 The Federal
Defendants also cite a history of the Secretary of State’s acceptance of prior MARPOL
Annex amendments under Section 1909(b) that predates the 2008 APPS amendment
implementing Annex VI. 189 The Federal Defendants assert that as Congress enacted
APPS against this background of ex ante authorization, Congress should be presumed
to have intended to preserve it. 190
The State acknowledges that “it appears that the Executive has accepted
regulations and amendments to international agreements and treaties that purport to be
domestically enforceable without further action by Congress or even an agency
rulemaking.”191 But the State maintains that this history does not establish this practice
as lawful, since as the Supreme Court stated in Medellin, ‘[p]ast practice does not, by

188

E.g., 39 U.S.C. § 407(b)(1) (2012) (giving the Secretary of State “the power to conclude
postal treaties, conventions, and amendments related to international postal services and other
international delivery services”); 16 U.S.C. § 916b (2012) (“The Secretary of State is authorized
. . . to present or withdraw any objections on behalf of the United States Government to such
regulations or amendments of the schedule to the convention as are adopted by the
Commission and submitted to the United States Government in accordance with article V of the
[International Convention for the Regulation of Whaling].”); 33 U.S.C. §§ 3803, 3801(3) (2012)
(providing the Secretary of Homeland Security “shall administer and enforce” the International
Convention on the Control of Harmful Anti-Fouling Systems on Ships, defined to include “its
annexes” and “any amendments to the Convention or annexes which have entered into force for
the United States”).

189

Docket 71 at 18-19 and citations therein.

190

Docket 93 at 34 (citing United States v. Wilson, 290 F.3d 347, 356 (D.C. Cir. 2002)
(“Congress is presumed to preserve, not abrogate, the background understandings against
which it legislates.”)).
191

Docket 79 at 37.

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itself, create power.’” 192 However, in making that statement in Medellin, the Supreme
Court quoted Dames & Moore v. Regan. 193 The full sentence in Dames reads: “Past
practice does not, by itself, create power, but ‘long-continued practice, known to and
acquiesced in by Congress, would raise a presumption that the [action] had been
[taken] in pursuance of its consent.’” 194

Given Congress’s long history of enacting

legislation that authorizes the executive branch to accept and render enforceable
amendments to international agreements, and the fact that MARPOL Annex
amendments have been previously enforced through the ex ante authority of 33 U.S.C.
§ 1909(b), the Court finds that Congress should be presumed to have intended that
MARPOL Annex amendments, including the North American ECA, that have been
accepted by the Secretary of State would constitute enforceable domestic law without
further implementation by Congress.
The legislative history of APPS supports this interpretation. The State asserts
that when the Senate approved Annex VI in 2006, senators stated that Annex VI “‘will
require implementing legislation,’” which the State argues indicates they “implicitly
prohibited the executive branch from unilaterally making any of the treaty obligations in
Annex VI—including any obligations flowing from amendments—domestic federal

192

Docket 79 at 37 (quoting Medellin v. Texas, 552 U.S. 491, 496 (2008)).

193

Medellin, 552 U.S. at 496 (quoting Dames, 453 U.S. 654, 686 (1981)).

194

Dames, 453 U.S. at 686 (quoting United States v. Midwest Oil Co., 236 U.S. 459, 474
(1915)). The Dames Court also quoted Justice Frankfurter’s concurrence in Youngstown Sheet
& Tube Co. v. Sawyer, which states that “a systematic, unbroken, executive practice, long
pursued to the knowledge of the Congress and never before questioned . . . may be treated as
a gloss on ‘Executive Power’ vested in the President by § 1 of Art. II.” Dames, 453 U.S. at 686
(quoting Youngstown, 343 U.S. 579, 610-611 (1952)).
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law.” 195 But the Federal Defendants persuasively contend that the State’s reliance on
this 2006 report is misplaced because it “ignores the chronology of the ratification of
Annex VI and amendments to APPS.” 196 First the Senate approved Annex VI, then
Congress amended APPS to include Annex VI; thus, at the time of the report cited by
the State, Annex VI did indeed still “require implementing legislation.” 197 The Court
therefore does not read the Senate report cited by the State as indicating anything
beyond a recognition that Annex VI was not self-executing.
Accordingly, the Court finds that when the Senate approved Annex VI, and when
Congress passed the amended version of APPS implementing Annex VI, they intended
that the Secretary of State’s acceptance of an ECA amendment at a future date would
be effective domestic law without further Senate approval and would be implemented
through the existing version of APPS without further congressional action.
B. Constitutionality of APPS.
The Court’s inquiry does not end with this Court’s determination that APPS
authorized the Secretary of State to accept the ECA amendment without further
congressional action, for Plaintiffs also assert that if APPS is interpreted to permit the
executive’s ex ante implementation of the ECA amendment, then the statute is
unconstitutional because it violates the Treaty Clause. That Clause accords to the

195

Docket 19 at 36 (quoting S. Exec. Rep. No. 109-13, at 5 (2006)).

196

Docket 52 at 48.

197

Docket 52 at 47-48; see also Docket 57 at 21 (Environmental Defendants) (“Annex VI was
arguably beyond the scope of the Senate‘s original consent and not covered by APPS because
it addressed pollution into the atmosphere rather than the oceans. Congress thus passed new
implementing legislation amending APPS to explicitly include Annex VI.”).

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President the “Power, by and with the Advice and Consent of the Senate, to make
Treaties, provided two thirds of the Senators present concur.” 198
RDC asserts that “amendment of treaties, no less than initial acceptance, must
conform with the Treaty Clause.” 199 It maintains that “Congress lacks the power to
abrogate the Treaty Clause by legislation, i.e., Congress lacks the power to decide a
future class of substantive treaty amendment will not require advice and consent.”200
RDC cites Clinton v. City of New York, in which the Supreme Court held the fact “[t]hat a
congressional cession of power is voluntary does not make it innocuous.

The

Constitution is a compact enduring for more than our time, and one Congress cannot
yield up its own powers, much less those of other Congresses to follow.” 201 The State
makes a similar argument, asserting that Congress cannot “evade the constitutional
prerequisites for making domestic law” and that other such attempts “have been struck
down by the Supreme Court.” 202
Essentially, the State and RDC contend that Congress and the Senate
improperly delegated their treaty-approval and legislative powers to the IMO and the
executive branch. The Supreme Court has explained that “[t]he Constitution sought to
divide the delegated powers of the new federal government into three defined
categories, legislative, executive and judicial, to assure, as nearly as possible, that each
198

U.S. Const. art. II, § 2, cl. 2.

199

Docket 83 at 19 (citing I.N.S. v. Chadha, 462 U.S. 919 (1983)).

200

Docket 83 at 19.

201

Docket 83 at 19-20 (quoting Clinton, 524 U.S. 417, 452 (1998) (Kennedy J., concurring)).

202

Docket 79 at 36 (citing Clinton, 524 U.S. at 438-39).

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Branch of government would confine itself to its assigned responsibility.” 203

Thus,

“[w]hen any Branch acts, it is presumptively exercising the power the Constitution has
delegated to it.” 204 While “Congress generally cannot delegate its legislative power to
another Branch[,] . . . the separation-of-powers principle, and the nondelegation doctrine
in particular, do not prevent Congress from obtaining the assistance of its coordinate
Branches.” 205 A congressional delegation of power is permissible as long as Congress
provides “by legislative act an intelligible principle to which the person or body
authorized to [exercise the delegated authority] is directed to conform.” 206
Here, Plaintiffs assert that Congress’s delegation of authority to the Secretary of
State to accept the ECA amendment was unconstitutional under the nondelegation
doctrine. “[F]ederal Statutes enjoy a presumption of constitutionality.” 207 Thus, the
Court considers the parties’ arguments with this presumption in mind. Moreover, as the
nondelegation doctrine has been applied to overturn a congressional delegation of

203

Chadha, 462 U.S. at 951; cf. In re Nat’l Sec. Agency Telecomms. Records Litig., 671 F.3d
881, 895 (9th Cir. 2011) (“The nondelegation doctrine is central to the notion of separation of
powers.”), cert. denied, 133 S. Ct. 421 (2012).
204

Chadha, 462 U.S. at 951.

205

Mistretta v. United States, 488 U.S. 361, 371-72 (1989).

206

Mistretta, 488 U.S. at 372 (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394,
409 (1928)).
207

Littlewolf v. Lujan, 877 F.2d 1058, 1063 (D.C. Cir. 1989); see also Rostker v. Goldberg, 453
U.S. 57, 64 (1981) (“Whenever called upon to judge the constitutionality of an Act of
Congress—the gravest and most delicate duty that this Court is called upon to perform—the
Court accords great weight to the decisions of Congress.” (internal citations and quotations
omitted)).
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power so rarely that commentators and even courts have questioned the doctrine’s
viability, 208 the Court approaches the issue with caution.
i.

Delegation to the IMO.
The Intervenor Complaint asserts in its second cause of action that “APPS

amounts to an unconstitutional delegation of Congress’s lawmaking authority to an
unaccountable international organization.”209 RDC has explained that “APPS, at least
as Defendants read it, improperly delegates U.S. substantive lawmaking authority to the
IMO.” 210 RDC asserts that because APPS does not specifically require any affirmative
action by the Secretary, the IMO effectively makes law for the United States if the
Secretary of State fails to reject a MARPOL Annex amendment. 211 It maintains that
“[t]he mere fact that the executive branch has the theoretical right to veto the IMO’s
legislation before it becomes U.S. law . . . does not make the IMO’s conduct any less
legislative.” 212

208

See, e.g., Leslie Salt Co. v. United States, 55 F.3d 1388, 1396 n.3 (9th Cir. 1995) (“The
vitality of the nondelegation doctrine is questionable . . . .”); Eric A. Posner & Adrian Vermeule,
Interring the Nondelegation Doctrine, 69 U. Chi. L. Rev. 1721, 1722-23 (2002) (“In our view
there just is no constitutional nondelegation rule, nor has there ever been. . . . What we argue . .
. is that a statutory grant of authority to the executive branch or other agents can never amount
to a delegation of legislative power. A statutory grant of authority to the executive isn't a
transfer of legislative power, but an exercise of legislative power.”).

209

Intervenor Compl. ¶ 37.

210

Docket 83 at 25.

211

Docket 83 at 25; Docket 83 at 27(“[I]n Defendants’ vision of proper lawmaking, elected U.S.
legislators play no role; instead, the IMO can create U.S. law, as long as the executive takes no
affirmative action to stop it.”).
212

Docket 83 at 9-10.

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The Federal Defendants disagree because “[i]t is not the actions of the IMO, but
rather the actions of the executive branch in the international sphere and Congress in
the domestic sphere, that result in an amendment like the ECA designation becoming
binding and enforceable in the United States.” 213 Moreover, the Federal Defendants
assert, APPS gives the Secretary of State the ability to reject amendments, which
ensures that the executive branch, not the IMO, has the final say over what
amendments enter into force for the United States. 214 They maintain that “regardless of
what the Secretary must do to accept or decline to accept a given amendment, the
Secretary retains discretion to decide whether the United States will be bound by the
amendment.”215
RDC asserts, citing Wileman Brothers & Elliot, Inc. v. Giannini, that the Ninth
Circuit has held that “failure to exercise a right of disapproval does not have the same
legal effect as affirmative approval.” 216 In Wileman, the Ninth Circuit reviewed fruit
maturity standards that had been promulgated by a fruit growers’ committee established
by the Secretary of Agriculture pursuant to the Agricultural Marketing Agreement Act.
The plaintiffs were farmers who sued members of the growers’ committee, asserting
that committee members had engaged in antitrust violations. The defendant committee
members argued they were immune from suit.

213

Docket 71 at 22.

214

Docket 71 at 23.

215

Docket 93 at 39-40.

216

Docket 83 at 26 (citing Wileman Bros., 909 F.2d 332 (9th Cir. 1990)).

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The Ninth Circuit first held that because the committee lacked the authority to
promulgate fruit maturity standards on its own, the defendants’ actions were not
covered by the provision of the Act granting immunity to committee members for
authorized actions. 217

The defendants next argued they were immune from suit

because the Secretary of Agriculture failed to disapprove of the standards they
promulgated. The applicable regulations provided that “[e]ach and every regulation,
decision, determination, or other act of the committee shall be subject to the continuing
right of the Secretary [of Agriculture] to disapprove of the same at any time.” 218 The
district court had granted a motion to dismiss on this basis, finding that the Secretary’s
non-disapproval of the regulations precluded liability of the committee members. The
Ninth Circuit reversed. It noted that under the statutory scheme, the committee itself
had promulgated the fruit maturity standards at issue and had not made
recommendations to the Secretary, as required by law. In these circumstances, the
court found that the Secretary’s non-disapproval “does not legitimize otherwise
anticompetitive conduct.” 219
RDC asserts that here, APPS allowed the ECA amendment to enter into force
when the Secretary of State failed to reject it. RDC maintains that under Wileman
Brothers, this failure to disapprove is not legally equivalent to an affirmative act of
acceptance; and that, as a result, APPS impermissibly allowed the IMO—and not the
Secretary of State—to create domestic federal law. However, Wileman Brothers did not
217

Wileman Bros., 909 F.2d at 334-36.

218

Id. at 337 (quoting 7 C.F.R. § 916.62).

219

Id. at 337-38.

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concern the constitutionality of the legal framework for setting fruit maturity standards.
The Secretary of Agriculture’s non-disapproval of the fruit maturity standards at issue
was relevant only to the extent that it might shield the defendants from liability.
Consequently, Wileman Brothers does not support RDC’s argument that APPS is an
unconstitutional delegation to the IMO because it does not require affirmative action by
the Secretary of State.
The Court finds that the provisions of 33 U.S.C. § 1909 give the Secretary of
State the discretion to accept or reject a MARPOL Annex amendment and do not
impermissibly delegate that authority to the IMO.
ii.

Delegation to the Secretary of State.
The SAC’s second cause of action and the Intervenor Complaint’s third cause of

action assert that to the extent APPS allows the Secretary of State to accept an
amendment to Annex VI that then becomes enforceable domestic law, APPS
unconstitutionally yields its lawmaking power and the Senate’s treaty-making role to the
executive branch. 220
RDC asserts that “[a]s Defendants describe APPS’s operation, the executive
branch has sole power to propose amendments to the IMO; the exclusive power to
decide whether amendments will become effective for the U.S.; and the power to
execute and implement amendments as part of U.S. law.”

It maintains that “[t]his

sweeping executive authority encompasses legislative power that belongs to
Congress.” 221 Similarly, the State “maintains that to comply with the Constitution there
220

SAC ¶ 53; Intervenor Compl. ¶ 40.

221

Docket 83 at 29.

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must be some check on the Executive’s authority to unilaterally make domestic law.” 222
And RDC asserts that “delegations pass constitutional muster only if ‘Congress provides
an administrative agency with standards guiding its actions such that a court could
ascertain whether the will of Congress has been obeyed.’”223
The touchstone for delegations of power is the intelligible principle test.

In

Mistretta v. United States, the Supreme Court addressed a challenge to the U.S.
Sentencing Guidelines, promulgated by the U.S. Sentencing Commission, on
separation of powers and nondelegation grounds. 224

In finding the Guidelines

constitutional, the Court explained that “in our increasingly complex society, replete with
ever changing and more technical problems, Congress simply cannot do its job absent
an ability to delegate power under broad general directives.” 225

A delegation is

“constitutionally sufficient if Congress clearly delineates the general policy, the public
agency which is to apply it, and the boundaries of this delegated authority.” 226 The
Court provided some perspective on the nondelegation doctrine, explaining that even
“broad delegations” had traditionally been upheld. 227 The Ninth Circuit has commented

222

Docket 79 at 38.

223

Docket 83 at 29-30 (quoting Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 218 (1989)).

224

488 U.S. 361 (1989).

225

Id. at 372.

226

Id. at 372-73 (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105 (1946)).

227

Id. at 373-74.

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that “[w]ith respect to federal agencies, only very broad, literally standardless grants of
legislative power will offend the Constitution.” 228
Here, the Federal Defendants assert that “the limitation of [the Secretary of
State’s] discretion to specified annexes to MARPOL, and hence to the type and content
of amendments that would be proposed to those annexes, provides a bounded and
intelligible principle.” 229 In addition, they assert that “MARPOL’s explicit requirement
that annex amendments [be] related to the substance of the annex and consistent with
the MARPOL Convention framework further limits the area in which the Secretary of
State may exercise . . . discretion.”230
As discussed above, the Court has determined that 33 U.S.C. § 1909(b) does not
contain any “judicially manageable or discoverable standards” by which the Court could
evaluate the Secretary of State’s decision. 231 However, this ruling does not preclude a
determination that Section 1909(b) provides an intelligible principle and boundaries
limiting the Secretary of State’s discretion. While Sections 1909(b) and (c) do not limit
how or why the Secretary of State determines to accept or reject an amendment, it does
limit what the Secretary of State can accept or reject: the Secretary of State may act
only on an amendment that has gone through the process outlined in Appendix III and
that has been vetted and accepted by the IMO. Accordingly, although the Secretary of
State is not under a duty to apply the Appendix III criteria independently, those criteria
228

Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332, 337 n.9 (9th Cir. 1990).

229

Docket 52 at 56; see also Docket 71 at 27.

230

Docket 52 at 56; see also Docket 71 at 27.

231

See supra at 18-28.

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still—by the fact of their integration into the Appendix III process—provide a boundary
and intelligible principle that renders the delegation to the Secretary of State in Section
1909(b) constitutional. 232
Moreover, “[t]he Supreme Court has repeatedly underscored that the intelligible
principle standard is relaxed for delegations in fields in which the Executive has
traditionally wielded its own power.” 233

Likewise, the Ninth Circuit has held that

“congressional legislation which is to be made effective through negotiation and inquiry
within the international field must often accord to the President a degree of discretion
and freedom from statutory restriction which would not be admissible were domestic
affairs alone involved.” 234
The Federal Defendants assert that “[h]ere, Alaska’s challenge is to a statutory
provision addressing the Secretary of State’s actions with respect to a treaty.” 235 RDC
maintains that “[t]he ECA amendment, as it applies to U.S. waters, amounts to nothing

232

Cf. Touby v. United States, 500 U.S. 160, 165 (1991) (“So long as Congress ‘lay[s] down by
legislative act an intelligible principle to which the person or body authorized to [act] is directed
to conform, such legislative action is not a forbidden delegation of legislative power.’” (quoting
J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928))); Docket 52 at 57 (“By
referencing the policy aims, structure, and content of MARPOL, identifying the Secretary of
State as the relevant executive branch actor, and specifying that the Secretary of State may
take ‘appropriate action’ with respect to a defined subset of amendments within the framework
of MARPOL, the Senate and Congress have provided an intelligible principle to delineate the
boundaries of the authority described in APPS.”).

233

In re Nat’l Sec. Agency Telecomms. Records Litig., 671 F.3d 881, 897-98 (9th Cir. 2011)
(citing Loving v. United States, 517 U.S. 748, 772 (1996); United States v. Curtiss–Wright
Export Corp., 299 U.S. 304, 324 (1936); Freedom to Travel Campaign v. Newcomb, 82 F.3d
1431, 1438 (9th Cir.1996)), cert. denied, 133 S. Ct. 421 (2012).
234

Jensen v. Nat’l Marine Fisheries Serv., 512 F.2d 1189, 1191 (9th Cir. 1975) (quoting CurtissWright Corp., 299 U.S. at 320).
235

Docket 52 at 58.

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more (or less) than traditional environmental legislation, the substantive effects of which
the U.S. could have accomplished through traditional domestic means, not through an
international treaty.” 236 However, this assertion overlooks that the United States jointly
proposed the ECA amendment with Canada, and the Secretary of State’s acceptance of
the ECA amendment fulfilled the international commitments the United States had made
under MARPOL.
RDC maintains that the Federal Defendants “rely on authorities involving the
[executive’s] power to take actions to promote the national security or respond to
wartime situations, circumstances obviously not present here.”237 While RDC is correct
that this case does not implicate national security or wartime powers, the executive’s
power to conduct foreign affairs is well-established. The Supreme Court has held that:
Although the source of the President's power to act in foreign affairs does
not enjoy any textual detail, the historical gloss on the “executive Power”
vested in Article II of the Constitution has recognized the President's “vast
share of responsibility for the conduct of our foreign relations.” While
Congress holds express authority to regulate public and private dealings
with other nations in its war and foreign commerce powers, in foreign
affairs the President has a degree of independent authority to act. 238

236

Docket 83 at 37.

237

Docket 83 at 36.

238

Am. Ins. Ass'n v. Garamendi, 539 U.S. 396, 414 (2003) (quoting Youngstown Sheet & Tube
Co. v. Sawyer, 343 U.S. 579, 610–611 (1952) (Frankfurter, J., concurring)); see also, e.g.,
Zemel v. Rusk, 381 U.S. 1, 17 (1965) (“Congress—in giving the Executive authority over
matters of foreign affairs—must of necessity paint with a brush broader than that it customarily
wields in domestic areas.”); Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103,
109 (1948) (“The President . . . possesses in his own right certain powers conferred by the
Constitution on him as Commander-in-Chief and as the Nation's organ in foreign affairs.”).

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Particularly in light of the clear commitment of foreign affairs to the executive branch,
and the limitations on the Secretary of State’s actions implicit in 33 U.S.C. § 1909, the
Court finds that APPS does not violate the nondelegation doctrine.
It follows that by allowing the Secretary of State to accept the ECA amendment,
Congress did not circumvent or ignore the requirements of the Treaty Clause; rather,
through their ex ante approval of future MARPOL Annex amendments, the Senate and
Congress constitutionally delegated their powers to the Secretary of State.
C. Conclusion as to SAC Claim 2 and Intervenor Complaint Claims 1–3.
Given the foregoing analysis, the Court finds that the SAC’s second cause of
action and the Intervenor Complaint’s first, second, and third causes of action fail to
state a claim upon which relief can be granted and thus merit dismissal under Rule
12(b)(6).
IV.

SAC Claim 4.
The parties agree that the ECA amendment, and not any action by EPA,

designated the North American ECA. Accordingly, the State has voluntarily dismissed
the SAC’s third cause of action. 239 The fourth cause of action in the SAC asserts that
the North American ECA does not apply to foreign-flagged ships because EPA failed to
designate the ECA through a rulemaking, which the State asserts is required by 33
U.S.C. §§ 1902 and 1903. 240 The Court evaluates this cause of action under Rule
12(b)(6).

239

Docket 79 at 41.

240

SAC ¶¶ 58-61.

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33 U.S.C. § 1902(a)(5)(A) provides that Annex VI shall apply to foreign-flagged
ships that are “in a port, shipyard, offshore terminal, or the internal waters of the United
States.” 241 33 U.S.C. § 1902(a)(5)(B) and (C) provide that Annex VI shall also apply to
foreign-flagged ships that are “bound for, or departing from, a port, shipyard, offshore
terminal, or the internal waters of the United States,” and to ships “entitled to fly the flag
of, or operating under the authority of, a party to Annex VI,” that are in:
(i) the navigable waters or the exclusive economic zone of the United
States;
(ii) an emission control area designated pursuant to section 1903 of this
title; or
(iii) any other area that the Administrator, in consultation with the
Secretary and each State in which any part of the area is located, has
designated by order as being an area from which emissions from ships
are of concern with respect to protection of public health, welfare, or the
environment. 242
The State construes this statute to mean that “APPS only applies to foreign-flagged
ships when those ships are in an ECA ‘designated under section 1903’ of APPS.”243 33
U.S.C. § 1903 does not specifically discuss ECA designations or rulemaking
procedures, but rather it generally provides that the Administrator of EPA “shall have
authority to administer regulations 12, 13, 14, 15, 16, 17, 18, and 19 of Annex VI to the
Convention” and “shall also prescribe any necessary or desired regulations to carry out
the provisions of regulations 12, 13, 14, 15, 16, 17, 18, and 19 of Annex VI to the

241

33 U.S.C. § 1902(a)(5)(A).

242

33 U.S.C. § 1902(a)(5)(B)(i)-(iii), (a)(5)(C)(i)-(iii).

243

Docket 19 at 38.

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Convention.”244 Regulation 14 of Annex VI is the part of Annex VI that governs SOx
emission requirements, including those applied within ECAs. 245
The Federal Defendants maintain that Alaska’s “assertion that ECAs need to be
designated through an EPA rulemaking under section 1903 of APPS is simply incorrect
under the APPS’ terms and, even if such rulemaking were necessary, the APA’s ‘foreign
affairs’ exception exempts such actions from notice and comment requirements.”246
The Environmental Defendants assert that “[b]ecause the list of areas [in 33
U.S.C. § 1902] is disjunctive, if a foreign-flagged ship is in any one of the areas
described it is subject to the Act.” 247

Thus, APPS applies to foreign-flagged ships

operating within “the navigable waters or the exclusive economic zone of the United
States.” 248 The United States’ Exclusive Economic Zone (“EEZ”) “begins at the outer
limit of the territorial sea and extends 200 miles from the baseline of the coastal

244

33 U.S.C. § 1903(b)(2), (c)(2).

245

Docket 9-3 at 16 (MARPOL Annex VI, Reg. 14).

246

Docket 49 at 16.

247

Docket 57 at 26.

248

33 U.S.C. § 1902(a)(5)(B)(i)-(ii), (a)(5)(C)(i)-(ii).

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state.”249 The United States and Canada’s North American ECA proposal states that
“the proposed ECA will extend 200 nautical miles from the territorial sea baseline.” 250
In the Marine Diesel Rule, EPA explained that the Rule applied within the North
American ECA submitted to the IMO, which it described as follows: “The area included
in the North American ECA submittal to IMO for ECA designation generally extends 200
nautical miles from the coastal baseline.”251 The Environmental Defendants and the
Federal Defendants assert that the North American ECA—as designated by the IMO,
implemented through APPS, and applied by EPA—is contained within the United
States’ EEZ, and thus APPS and the ECA amendment apply to foreign-flagged ships
under 33 U.S.C. § 1902(a)(5)(B)(i) and (a)(5)(C)(i). 252
The State argues that under this interpretation, the “latter sections [that] also
apply APPS to foreign-flagged ships in ‘an emission control area designated under
section 1903’ would not add anything to the reach of APPS because the United States
cannot designate by domestic rulemaking an ECA applying to foreign-flagged ships
outside the navigable waters or exclusive economic zone of the United States.” 253 The

249

Thomas J. Schoenbaum, 1 Admiralty & Mar. Law § 2-16 (5th ed.); see also 16 U.S.C. § 1453
(2012) (“The Exclusive Economic Zone extends to a distance 200 nautical miles from the
baseline from which the breadth of the territorial sea is measured.”); Pres. Proc. No. 5030, 48
Fed. Reg. 10605, 10605 (Mar. 10, 1983) (“The E[xc]lusive Economic Zone extends to a
distance 200 nautical miles from the baseline from which the breadth of the territorial sea is
measured.”).
250

North American ECA Proposal at 5, available at http://www.epa.gov/nonroad/marine/ci/mepc59-eca-proposal.pdf.

251

Marine Diesel Rule, 75 Fed. Reg. 22896, 22924 (Apr. 30, 3010).

252

Docket 52 at 62; Docket 57 at 25-26.

253

Docket 79 at 44.

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State urges the Court to “reject a reading of APPS that renders some of its sections
superfluous.”254 The Federal Defendants respond that their position does not render
parts of Section 1902 superfluous.

They maintain that “Sections 1902(a)(5)(B)(ii),

(C)(ii), and (D)(iii) provide additional jurisdiction where an ECA has been designated
pursuant to section 1903 of APPS.”255

The Federal Defendants further assert that

“[a]ny discussion of how [these] subsections . . . apply and what areas might be
designated pursuant to section 1903 is irrelevant to the analysis of the North American
ECA, and an explanation of how these subparts might operate in hypothetical
circumstances will not help the Court resolve the issues before it.” 256
The Court finds that the plain language of 33 U.S.C. § 1902 applies Annex VI to
vessels within the United States EEZ and navigable waters, without exception. 257
Moreover, 33 U.S.C. § 1902 was drafted before the North American ECA had been
adopted by the IMO and implemented in the United States; thus, at the time of its
drafting, the language regarding the ECA would not have been superfluous, as the
boundaries of the North American ECA were yet unknown. The Court’s interpretation
renders a rulemaking under Section 1903 unnecessary, as Section 1902’s provisions

254

Docket 79 at 44.

255

Docket 93 at 47.

256

Docket 93 at 47.

257

Cf. H.R. Rep. No. 110-54, at 5 (2007), reprinted in 2008 U.S.C.C.A.N. 1002, 1003 (sectionby-section analysis) (“This section applies Annex VI to the U.S. Exclusive Economic Zone to the
extent that this is consistent with international law.”).
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regarding the EEZ provide adequate statutory authority to apply the North American
ECA to foreign-flagged ships. 258
Accordingly, the Court finds that the State, with respect to its fourth cause of
action, has failed to state a claim upon which relief can be granted.

The Federal

Defendants’ Motion to Dismiss is therefore GRANTED with regard to this claim.
CONCLUSION
For the foregoing reasons, the Court orders as follows:
1.

The Federal Defendants’ Motion to Dismiss Alaska’s Second Amended

Complaint at Docket 48 is GRANTED.
2.

The Federal Defendants’ Motion to Dismiss Complaint in Intervention of

Intervenor-Plaintiff Resource Development Council for Alaska at Docket 70 is
GRANTED.
3.

The State of Alaska’s Motion for Preliminary Injunction at Docket 15 is

DENIED as moot.
4.

The Clerk of Court is directed to enter a Judgment in accordance with this

Order.
DATED at Anchorage, Alaska this 17th day of September, 2013.
/s/ Sharon L. Gleason
United States District Judge
258

In addition, as the Federal Defendants explain, under the State’s interpretation “the United
States could enforce an ECA’s requirements as to foreign-flagged ships in an ECA designated
pursuant to section 1903, but not as to foreign-flagged ships in an ECA located in a port or
internal waters or in the United States EEZ or navigable waters and designated by amendment
to MARPOL Annex VI.” Docket 93 at 48-49. They also point out that as a practical matter, it
makes little sense for Congress to require the greater domestic protections of notice-andcomment rulemaking “to enforce the ECA as to ships of other parties to Annex VI in the ECA but
not as to United States ships.” Docket 93 at 49.
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