Pacific Merchant Shipping Ass'n v. Goldstene

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PACIFIC MERCHANT SHIPPING 
ASSOCIATION,
Plaintiff-Appellant,
v.
JAMES GOLDSTENE, in his official No. 09-17765
capacity as Executive Officer of D.C. No.
the California Air Resources
Board,
 2:09-cv-01151-
MCE-EFB
Defendant-Appellee.
OPINION
NATURAL RESOURCES DEFENSE
COUNCIL, INC.; COALITION FOR
CLEAN AIR, INC.; SOUTH COAST AIR
QUALITY MANAGEMENT DISTRICT,
Defendant-Intervenors-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding

Argued and Submitted
December 9, 2010—San Francisco, California

Filed March 28, 2011

Before: Robert E. Cowen,* A. Wallace Tashima, and
Barry G. Silverman Circuit Judges.

Opinion by Judge Cowen

*The Honorable Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.

4063
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4067

COUNSEL

Aleksandrs Drumalds & Erich Wise (argued), Flynn, Delich
& Wise, Long Beach, California, for the appellant.

Nicholas Stern (argued), Office of the California Attorney
General, Sacramento, California; for appellee James Golds-
tene; Melissa Lin Perrella & David Richard Petit; National
Resources Defense Council, Santa Monica, California, for
appellees National Resources Defense Council, Inc. and
Coalition for Clean Air, Inc.; Barbara B. Baird (argued),
South Coast Air Quality Management District, Diamond Bar,
California, for appellee South Coast Air Quality Management
District.

OPINION

COWEN, Circuit Judge:

In this interlocutory appeal, Plaintiff Pacific Merchant
Shipping Association (“PMSA”) appeals from the District
4068 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
Court’s denial of its motion for summary judgment in its
action against Defendant James Goldstene, the Executive
Officer of the California Air Resources Board (“CARB”).
PMSA has challenged, on federal statutory and constitutional
grounds, California fuel use regulations (known as the “Ves-
sel Fuel Rules”) insofar as they purport to apply to sea-going
vessels located more than 3 miles from the California coast.
We will affirm.

I.

On April 16, 2009, CARB transmitted the “Vessel Fuel
Rules” to the California Secretary of State for filing pursuant
to state law, and the regulations went into effect as planned
on July 1, 2009. As the District Court noted, the express pur-
pose of the Vessel Fuel Rules “is to reduce air pollutants
affecting the State of California by requiring ocean-going ves-
sels to use cleaner marine fuels.” (ER24 (footnote added).)
The regulations were adopted only after a lengthy process that
included consultation with the public, state and local agencies,
and the federal government.

The Vessel Fuel Rules mandate that vessel operators “use
cleaner marine fuels in diesel and diesel-electric engines,
main propulsion engines, and auxiliary boilers on vessels
operating within twenty-four nautical miles off the California
coastline.” (Id. (citing Cal. Code Regs. tit. 13, § 2299.2(a);
Cal. Code Regs. tit. 17, § 93118.2(a)).) Specifically, the regu-
lations apply to a geographical region known as “Regulated
California Waters,” which includes the waters within 24 nau-
tical miles of the state’s shoreline. Cal. Code Regs. tit. 13,
§ 2299.2(b); Cal. Code Regs. tit. 17, § 93118.2(b). This area
evidently encompasses approximately 14,000 square miles of
ocean beyond the 3-mile zone immediately adjacent to the
coast. In general, the Vessel Fuel Rules only cover vessels
calling at a California port, and they accordingly contain an
express exemption for vessels simply traveling through the
region (known as “innocent passage”). There are two phases
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4069
of implementation: (1) “Initially, beginning in July 2009,
vehicle operators must use either marine gas oil (which typi-
cally averages 0.3% sulfur and is capped at 1.5%), or marine
diesel oil with a sulfur limit of 0.5% or less;” and (2) “There-
after, by January 2012, both fuels must not exceed 0.1% sul-
fur.” (ER24 (citing Cal. Code Regs. tit. 13, § 2299.2(a); Cal.
Code Regs. tit. 17, § 93118.2(a)).) The regulations also
require vessel owners and operators to keep detailed records,
and non-compliance could subject such owners and operators
to a wide range of sanctions, including fines, injunctive relief,
and criminal prosecution. The Vessel Fuel Rules contain an
express “sunset” clause, providing for their termination when
CARB’s Executive Officer makes a finding that the federal
government has adopted and is enforcing requirements that
will achieve equivalent emission reductions.

Prior to the 2009 adoption and implementation of the Ves-
sel Fuel Rules, CARB previously adopted a set of emission
standards for ocean-going vessels. In PMSA v. Goldstene, 517
F.3d 1108 (9th Cir. 2008), we observed that CARB on Janu-
ary 1, 2007 began enforcing its “Marine Vessel Rules,” limit-
ing “emissions from the auxiliary diesel engines of ocean-
going vessels within twenty-four miles of California’s coast,”
id. at 1109. PMSA claimed that the Marine Vessel Rules were
preempted by two federal statutes: the Clean Air Act and the
Submerged Lands Act (“SLA”). Id. at 1109-13. Affirming the
district court’s ruling and reinstating the injunction entered
against the regulations’ enforcement, we held that the Marine
Vessel Rules were emission standards (as opposed to other-
wise permissible in-use fuel requirements) and thereby were
preempted by the Clean Air Act. Id. at 1109-15. We accord-
ingly found “it unnecessary to decide whether the Submerged
Lands Act also preempts the state rules at issue.” Id. at 1115.
In turn, CARB carefully drafted the current Vessel Fuel Rules
to require the use of particular fuels in order to correct the
deficiency we identified in Goldstene.

With respect to these Vessel Fuel Rules, the District Court
as well as the parties have addressed in some detail the seri-
4070 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
ous environmental problems giving rise to these regulations as
well as the various positive and negative effects of this regula-
tory scheme.

Initially, the ports of Long Beach and Los Angeles collec-
tively constitute the largest port in the United States, with
some 40% of all national imports entering the country through
these two huge facilities. In 2006 alone, there were approxi-
mately 11,000 vessel “calls” at California ports, and this num-
ber is expected to increase significantly in the future.

CARB estimated that compliance with the Vessel Fuel
Rules would cost ship operators $30,000.00 per California
port “call,” amounting to an industry-wide aggregate incre-
mental cost of approximately $360 million annually and $1.5
billion through the end of 2014. On the other hand, it does not
appear that such compliance would be technically impossible
or even especially challenging. As the District Court empha-
sized in its decision, “any increased cost associated with com-
pliance is less than one percent of the typical cost of a trans-
Pacific voyage.” (ER36 (citing SER42).) “That cost has been
estimated by CARB to amount to only a $6.00 increase per
20-foot shipping container, a sum that would equate to only
an extra 12.5 cents in the cost of a plasma TV” or about 0.14
cents for a pair of athletic shoes (Id. (citing same).)

It appears uncontested that ocean-going vessels have long
been a leading source of air pollution in California, due in
large part to the widespread use of low-grade bunker fuel.
Bunker fuel consists primarily of a thick and tar-like residual
formulated from the residues remaining after primary fuel dis-
tillation. Because of its high viscosity, this fuel has to be
heated before it can be pumped and injected into an engine.
It contains an average of approximately 25,000 parts per mil-
lion (“ppm”) of sulfur. In contrast, the diesel fuel used for
trucks and other motor vehicles is limited to just 15 ppm of
sulfur.
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4071
2006 data from CARB indicated that ocean-going vessels
traveling within 24 nautical miles of the California coast gen-
erate per day approximately 15 tons of diesel particulate mat-
ter (“PM”), 157 tons of nitrogen oxides (“NOx”), and 117
tons of sulfur oxides (“SOx”). In fact, their emissions consti-
tute the single largest source of SOx emissions in the state,
responsible for 40% of all such emissions. Furthermore, both
NOx and SOx are precursors to PM2.5, or fine particulate pol-
lution. It was estimated that the vessels’ daily PM emissions
represent the equivalent of approximately 150,000 big rig
trucks traveling 125 miles per day. It appears that emissions
are likely to be blown on-shore from beyond the geographical
area actually covered by the Vessel Fuel Rules.

It is likewise undisputed that 27 million Californians (80%
of the state’s population) are exposed to emissions from
ocean-going vessels and that these emissions have a number
of harmful effects. In particular, diesel emissions are known
to cause cancer and respiratory illnesses like aggravated
asthma as well as to increase the risk of heart disease. CARB
specifically estimated that the vessels’ direct PM emissions
cause 300 premature deaths across the state every single year,
even after excluding cancer effects.

These various public health problems are especially severe
in the area of Southern California known as the South Coast
Air Basin (which encompasses all of Orange County as well
as the non-desert portions of Los Angeles, Riverside, and San
Bernardino Counties). For instance, over 80% of the popula-
tion in the South Coast Air Basin is exposed to PM2.5 levels
exceeding federal ambient air quality standards.

Implementation of the Vessel Fuel Rules should reduce PM
emissions by approximately 13 tons per day, NOx emissions
by 10 tons per day, and SOx emissions by 109 tons per day.
Upon full implementation, the amount of SOx in the air
should be cut by approximately 90%. In addition to antici-
pated health care savings and similar financial benefits,
4072 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
research indicated that the Vessel Fuel Rules should prevent,
between 2009 and 2015, approximately 3,500 premature
deaths and nearly 100,000 asthma attacks as well as reduce
cancer risks.

The South Coast Air Basin has long been unable to meet
federal air quality standards. As a practical matter, the Vessel
Fuel Rules appear to be critical to ongoing efforts at compli-
ance. Among other things, the Clean Air Act requires
Defendant-Intervenor South Coast Air Quality Management
District1 (“South Coast District”) to achieve national ambient
air quality standards for PM2.5, and, in order to do so, it evi-
dently needs SOx reductions of nearly 70% by 2014. How-
ever, “[m]ost of the pollution reductions the South Coast
District relies on to attain the standard come from these
CARB rules,” and the South Coast District therefore claims
that it would be impossible to comply with federal law with-
out these regulations. (South Coast District’s Brief at 6 (citing
SER144).) Failure to comply with federal mandates could
result in the EPA imposing various sanctions, including the
reduction or termination of federal transportation funding for
the region.

On March 27, 2009 (after this litigation commenced but
before the District Court ruled on PMSA’s summary judg-
ment motion), 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 Interna-
tional Convention for the Prevention of Pollution from Ships
(“MARPOL”). The IMO, which is responsible for administer-
ing the treaty, evidently adopted the joint proposal on March
26, 2010 (following the filing of this current appeal). This
action makes the ECA binding on all treaty signatories. It is
1
The South Coast District has joint responsibility, along with CARB,
for the South Coast Air Basin. The District, which also includes the Palm
Springs area, is home to over 16 million people.
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4073
anticipated that, as of August 2012, vessels subject to Annex
VI and located within 200 nautical miles of the territorial sea
baselines of Canada and the United States will be required to
comply with a 1% sulfur limit. The ECA will then evidently
require these vessels to meet the same 0.1% sulfur limit estab-
lished by the Vessel Fuel Rules beginning in 2015.

PMSA is a California mutual benefit corporation whose
members own and operate both United States and foreign-
flagged ocean-going vessels. It filed its complaint in the
United States District Court for the Eastern District of Cali-
fornia on April 27, 2009, naming Goldstene (acting in his
official capacity) as the sole Defendant. The pleading con-
tained a single claim for relief with the heading: “[For Declar-
atory And Injunctive Relief Based On Preemption By The
Submerged Lands Act, 43 U.S.C. § 1301 et seq.]” (ER45
(emphasis omitted).) PMSA specifically alleged, inter alia,
that it “is entitled to a judgment that enjoins defendant Golds-
tene from giving effect or enforcing 13 CCR § 2299.2 and 19
CCR § 93118.1 seaward of California’s boundary as estab-
lished by the Submerged Lands Act and declares these regula-
tions preempted by the Commerce Clause of the United States
Constitution, and contrary to the Supremacy Clause of the
United States Constitution.” (ER46.) PMSA accordingly
sought a declaration to the effect “that, insofar as they regu-
late conduct seaward of California’s three-mile boundary,”
the Vessel Fuel Rules are preempted by the SLA and other-
wise “impermissibly regulate navigation and foreign and
domestic commerce as delegated to the United State Congress
by Article I, Section 8, Clause 3 of the Constitution.” (Id.)
PMSA further sought a permanent injunction barring the
implementation or enforcement of the Vessel Fuel Rules as to
conduct seaward of California’s 3-mile boundary.

The District Court allowed the South Coast District as well
as the National Resources Defense Council, Inc. and the
Coalition for Clean Air, Inc. to intervene in this action as
Defendants. PMSA moved for summary judgment. In a mem-
4074 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
orandum and order filed on June 30, 2009, the District Court
denied PMSA’s summary judgment motion. In short, the Dis-
trict Court: (1) applied the general presumption against fed-
eral preemption; (2) determined that the Vessel Fuel Rules are
not preempted by the SLA; (3) based in particular on its appli-
cation of the “so-called ‘effects test,’ ” rejected PMSA’s the-
ory that the regulations “are otherwise ‘unlawful and
impermissibly regulate navigation and foreign commerce as
delegated to the United States Congress,’ or are ‘contrary to
law.’ ” (ER16-ER17 (quoting ER46)); and (4) otherwise
observed that, pursuant to the Clean Air Act, states are per-
mitted to adopt their own fuel mandates.

PMSA responded to the District Court’s ruling by filing a
motion for modification and for permission to take an inter-
locutory appeal. Although the motion was contested, the Dis-
trict Court filed an amended memorandum and order on
August 28, 2009, certifying that “this Order qualifies for
immediate appellate review as involving ‘a controlling ques-
tion of law as to which there is substantial ground for differ-
ence of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the litiga-
tion.’ ” (ER42 (quoting 28 U.S.C. § 1292(b)).) PMSA filed a
timely petition for permission to appeal, which was granted
by this Court on December 11, 2009, and PMSA then suc-
cessfully perfected the appeal.

II.

It is uncontested that the District Court possessed federal
question jurisdiction over this mater pursuant to 28 U.S.C.
§ 1331 and that we have appellate jurisdiction over the current
interlocutory appeal under 28 U.S.C. § 1292(b).

A district court’s denial of summary judgment is reviewed
de novo. See, e.g., Botosan v. Paul McNally Realty, 216 F.3d
827, 830 (9th Cir. 2000). We must determine whether, view-
ing the evidence in the light most favorable to the non-moving
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4075
party, there are any genuine issues of material fact and
whether the district court properly applied the correct legal
principles. See, e.g., Prison Legal News v. Lehman, 397 F.3d
692, 698 (9th Cir. 2005). We also may affirm on any ground
supported by the record. See, e.g., Levine v. Vilsack, 587 F.3d
986, 991 (9th Cir. 2009).

We find that the related dormant Commerce Clause and
general maritime law preemption claims were preserved and
are now properly before us. PMSA sought declaratory and
injunctive relief in the District Court on the grounds that the
Vessel Fuel Rules, insofar as they purport to regulate conduct
seaward of California’s 3-mile boundary, are preempted by
the SLA and unlawfully and impermissibly regulate naviga-
tion and both foreign and domestic interstate commerce. The
District Court in turn determined that PMSA failed to demon-
strate that the California regulations “are otherwise ‘unlawful
and impermissibly regulate navigation and foreign and
domestic commerce as delegated to the United States Con-
gress.’ ” (ER37 (quoting ER46).) Finally, we observe that, as
a practical matter, the statutory preemption, dormant Com-
merce Clause, and general maritime law preemption theories
presented in this appeal are quite similar.

III.

This appeal presents the Court with a highly unusual and
challenging set of circumstances. Given the circumstances,
we do believe that the regulatory scheme at issue here pushes
a state’s legal authority to its very limits, although the state
had clear justifications for doing so. More generally, we must
take into account such fundamental considerations as, on the
one hand, the supremacy of federal law, the various limita-
tions on state regulations arising out of the dormant Com-
merce Clause and general maritime law preemption doctrines,
and the federal government’s unquestioned authority over this
nation’s relations with foreign countries, and, on the other
hand, the sovereign police powers retained by California
4076 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
allowing the state to adopt a wide range of laws in order to
protect the health, safety, and welfare of its own residents.

Having fully considered the numerous arguments raised by
the parties, the record on appeal, the District Court’s own rea-
soning, and the governing legal principles, we ultimately
determine that the District Court properly denied PMSA’s
motion for summary judgment. In particular, PMSA fails to
establish that the Vessel Fuel Rules are preempted by the
SLA. PMSA also fails to show that it is entitled to summary
judgment on the basis that the Vessel Fuel Rules “are other-
wise ‘unlawful and impermissibly regulate navigation and
foreign and domestic commerce as delegated to the United
States Congress.’ ” (ER37 (quoting ER46).)

A. Statutory Preemption Under The SLA

In this appeal, PMSA primarily relies on a theory of statu-
tory preemption, asserting that the Vessel Fuel Rules are pre-
empted by the SLA. We therefore are directly confronted with
the question we refrained from deciding in Goldstene.

The SLA arose out of a number of rulings by the United
States Supreme Court primarily deciding who owns the sub-
merged lands (and the oil and other natural resources con-
tained in these lands) off the coasts of the United States. In
particular, the Supreme Court held in United States v. Califor-
nia, 332 U.S. 19 (1947) (“California I”), that “California is
not the owner of the three-mile marginal belt along its coast,
and that the Federal Government rather than the state has par-
amount rights in and power over that belt, an incident to
which is full dominion over the resources of the soil under
that water area, including oil,” id. at 38-39; see also, e.g.,
United States v. Louisiana, 339 U.S. 699, 704-06 (1950)
(“Louisiana I”).

[1] “The Submerged Lands Act, 67 Stat. 29, 43 U.S.C.
§ 1301 et seq., passed May 22, 1953, came in response to
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4077
these rulings.” United States v. Louisiana, 446 U.S. 253, 256
(1980) (“Louisiana III”). “By that statute, the United States
released to the coastal States its rights in the submerged lands
within stated limits and confirmed its own rights therein sea-
ward of those limits.” Id. The Supreme Court upheld this leg-
islation as a constitutional exercise of Congress’s power to
dispose of federal property under Article IV, Section 3,
Clause 2 of the Constitution. See, e.g. id. (citing Alabama v.
Texas, 347 U.S. 272 (1954)); United States v. Louisiana, 363
U.S. 1, 7 (1960) (“Louisiana II”) (citing same). We point out
that the Supreme Court itself has also indicated that Congress
thereby did not technically overrule or otherwise reject the
Court’s own prior case law. See, e.g., United States v. Maine,
420 U.S. 515, 524 (1975) (“Maine I”) (“It is also our view,
contrary to the contentions of the States, that the premise [that
paramount rights to the offshore seabed inhere in the federal
government as an incident of national sovereignty] was
embraced rather than repudiated by Congress in the Sub-
merged Lands Act of 1953, 67 Stat. 29, 43 U.S.C. § 1301.”);
Louisiana II, 363 U.S. at 7 (stating that “the Act concededly
did not impair the validity of the California, Louisiana, and
Texas cases, which are admittedly applicable to all coastal
States”). However, as a practical matter, the legislation still
transferred federal rights in the marginal seas to the respective
states. See, e.g., Maine I, 420 U.S. at 524 (“In that legislation,
it is true, Congress transferred to the States the rights to the
seabed underlying the marginal sea; however, this transfer
was in no wise inconsistent with paramount national power
but was merely an exercise of that authority.”); Louisiana II,
363 U.S. at 6 (“[T]his case draws in question only the geo-
graphic extent to which the statute ceded to the States the fed-
eral rights established by those [pre-SLA] decisions.”);
Barber v. Hawai’i, 42 F.3d 1185, 1190 (9th Cir. 1994) (“In
1953, Congress passed the Submerged Lands Act to negate
the Supreme Court’s ruling [in California I.]”).

In United States v. Louisiana, 363 U.S. 1 (1960)
(“Louisiana II”), the Supreme Court observed that “the pur-
4078 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
poses of the Submerged Lands Act are described in its title as
follows:”

‘To confirm and establish the titles of the States to
lands beneath navigable waters within State bounda-
ries and to the natural resources within such lands
and waters, to provide for the use and control of said
lands and resources, and to confirm the jurisdiction
and control of the United States over the natural
resources of the seabed of the Continental Shelf sea-
ward of State boundaries.’

Id. at 8. The Louisiana II Court then stated that the legislation
promotes these purposes in the following ways:

1. relinquishes to the States the entire interest of
the United States in all lands beneath navigable
waters within state boundaries. (s 3, 43 U.S.C. s
1311, 43 U.S.C.A. s 1311);

2. defines that area in terms of state boundaries
‘as they existed at the time (a) State became a mem-
ber of the Union, or as heretofore approved by Con-
gress,’ not extending, however, seaward from the
coast of any State more than three marine leagues in
the Gulf of Mexico or more than three geographical
miles in the Atlantic and Pacific Oceans (s 2, 43
U.S.C. s 1301, 43 U.S.C.A. s 1301);

3. confirms to each State a seaward boundary of
three geographical miles, without ‘questioning or in
any manner prejudicing the existence of any State’s
seaward boundary beyond three geographical miles
if it was so provided by its constitution or laws prior
to or at the time such State became a member of the
Union, or if it has been heretofore approved by Con-
gress’ (s 4, 43 U.S.C. s 1312, 43 U.S.C.A. s 1312);
and
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4079
4. For purposes of commerce, navigation,
national defense, and international affairs, reserves
to the United States all constitutional powers of reg-
ulation and control over the areas within which the
proprietary interests of the States are recognized (s
6(a), 43 U.S.C. s 1314, 43 U.S.C.A. s 1314); and
retains in the United States all rights in submerged
lands lying beyond those areas to the seaward limits
of the Continental Shelf (s 9, 43 U.S.C. s 1302, 43
U.S.C.A. s 1302).

Id. at 8-10 (footnotes omitted).

[2] PMSA specifically emphasizes § 1312, which is enti-
tled “Seaward boundaries of States.” This provision states in
full that:

The seaward boundary of each original coastal State
is approved and confirmed as a line three geographi-
cal miles distant from its coast line or, in the case of
the Great Lakes, to the international boundary. Any
State admitted subsequent to the formation of the
Union which has not already done so may extend its
seaward boundaries to a line three geographical
miles distant from its coast line, or to the interna-
tional boundaries of the United States in the Great
Lakes or any other body of water traversed by such
boundaries. Any claim heretofore or hereafter
asserted either by constitutional provision, statute, or
otherwise, indicating the intent of a State so to
extend its boundaries is approved and confirmed,
without prejudice to its claim, if any it has, that its
boundaries extend beyond that line. Nothing in this
section is to be construed as questioning or in any
manner prejudicing the existence of any State’s sea-
ward boundary beyond three geographical miles if it
was so provided by its constitution or laws prior to
or at the time such State became a member of the
4080 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
Union, or if it has been heretofore approved by Con-
gress.

It is uncontested that, as the District Court noted, California
law “previously delineated California’s sea boundary as
extending three miles into the Pacific Ocean (see People v.
Weeren, 26 Cal. 3d 654, 660 (1980)).” (ER30.)

The Supreme Court has further indicated that § 1312 spe-
cifically arises out of Congress’s power to admit states pursu-
ant to Article IV, Section 3, Clause 1 of the Constitution.
According to the Louisiana II Court, the admission power
gives rise to Congress’s authority to establish state boundaries
for all domestic purposes (in contrast to the President’s power
as the constitutional representative of this nation in foreign
affairs to determine how far this country will claim territorial
rights as against other countries). Louisiana II, 363 U.S. at 35.
In other words, such state boundaries established by Congress
are “fully effective as between Nation and State.” Id.

1. The Doctrine Of Implicit Field Preemption And The
General Presumption Against Preemption

PMSA does not argue that the Vessel Fuel Rules are
expressly preempted by any federal statute, and it instead
relies on the doctrine of implicit field preemption. The princi-
ples governing this doctrine appear to be relatively easy to
state, although they seem to be rather difficult to apply in
practice. We agree with the District Court that it is appropri-
ate to apply the otherwise well-established presumption
against preemption in the current circumstances. In turn, the
application of such a presumption in this matter clearly
weighs against PMSA’s position.

Field preemption arises when state law “regulates conduct
in a field that Congress intended the Federal Government to
occupy exclusively.” English v. Gen. Elec. Co., 496 U.S. 72,
79 (1990). “We will find implicit preemption where the intent
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4081
of Congress is clearly manifested, or implicit from a pervasive
scheme of federal regulation that leaves no room for state and
local supplementation, or implicit from the fact that the fed-
eral law touches a field (e.g. foreign affairs) in which ‘the fed-
eral interest is so dominant that the federal system will be
assumed to preclude enforcement of state laws on the same
subject.’ ” Barber, 42 F.3d at 1189 (quoting Wis. Pub. Inter-
venor v. Mortier, 501 U.S. 597, 604-05 (1991)). In deciding
whether a federal law preempts a state counterpart, our only
task is to ascertain the intent of Congress. See, e.g., PMSA v.
Aubry, 918 F.2d 1409, 1415 (9th Cir. 1990) (quoting Cal.
Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 280 (1987)).

PMSA contends that the 3-mile boundary purportedly
established by the SLA constitutes a component of a compre-
hensive federal scheme and that the SLA “statutorily demar-
cates the territorial boundaries of the states for purposes of
federal law.” (Appellant’s Brief at 20.) In other words, the
powers of the states are subordinated even within their respec-
tive territorial boundaries, and they, in turn, lack any powers
whatsoever (with a few possible narrow exceptions) beyond
such boundaries in waters in which the federal government’s
own powers are “exclusive.” (Id.) According to PMSA, Con-
gress purportedly legislated on a matter in which the federal
interest is so dominant that it must be assumed that enforce-
ment of state law on the same subject is precluded. PMSA
goes on to argue that the Vessel Fuel Rules “assert the territo-
rial dominion of California out to 24 miles” and thereby ven-
ture into a field comprehensively settled by Congress in the
SLA—“the definition of a state’s territorial seas.” (Appel-
lant’s Reply Brief at 9.)

In conducting its preemption analysis, the District Court
expressly relied on the general presumption against preemp-
tion. It recognized that “a presumption applies to protect a
state’s historic police power in protecting the health and
safety of its citizenry, unless the clear and manifest purpose
of Congress dictates otherwise.” (ER33 (citing Rice v. Santa
4082 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
Fe Elevator Corp., 331 U.S. 218, 230 (1947)). PMSA vigor-
ously contends that the presumption does not apply in this
case, relying in particular on the Supreme Court’s opinion in
United States v. Locke, 529 U.S. 89 (2000).

The Locke Court ruled that certain components of Wash-
ington’s regulatory scheme governing oil tankers in Puget
Sound were preempted by the Ports and Waterways Safety
Act of 1972 (“PWSA”) and another federal statute (specifi-
cally striking down state crew training requirements, an
English language proficiency mandate for tanker crew mem-
bers, a navigation watch requirement, and marine casualty
reporting requirements) and remanded for further consider-
ation of the remaining state-law provisions. Id. at 99-117. It
specifically rejected our broad application of the “Rice
assumption” on the grounds that “an ‘assumption’ of nonpre-
emption is not triggered when the State regulates in an area
where there has been a history of significant federal pres-
ence.” Id. at 108 (citing Jones v. Rath Packing Co., 430 U.S.
519, 525 (1977); Medtronic, Inc. v. Lohr, 518 U.S. 470, 485
(1996)). Applying this approach, the Locke Court determined
that the presumption (or “assumption”) was inapplicable:

The state laws now in question bear upon national
and international maritime commerce, and in this
area there is no beginning assumption that concur-
rent regulation by the State is a valid exercise of its
police powers. Rather, we must ask whether the local
laws in question are consistent with the federal statu-
tory structure, which has as one of its objectives a
uniformity of regulation for maritime commerce. No
artificial presumption aids us in determining the
scope of appropriate local regulation under the
PWSA, which, as we discuss below, does preserve,
in Title I of that Act, the historic role of the States
to regulate local ports and waters under appropriate
circumstances. At the same time, as we also discuss
below, uniform, national rules regarding general
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4083
tanker design, operation, and seaworthiness have
been mandated by Title II of the PWSA.

Id. at 108-09; see also Fednav, Ltd. v. Chester, 547 F.3d 607,
622 (6th Cir. 2008) (refraining from applying any “ ‘begin-
ning assumption’ ” with respect to Michigan’s ballast statute).

[3] The Supreme Court, however, further explained the
proper scope of this presumption against preemption in Wyeth
v. Levine, 129 S. Ct. 1187 (2009). In this 2009 decision, the
Court rejected the theory that the FDA’s approval of drug
warning labels furnished the drug manufacturer with a com-
plete defense to state tort claims for failure to provide an ade-
quate warning. Id. at 1193-1204. The Supreme Court
expressly applied the beginning assumption against preemp-
tion. Id. at 1194-95. In a footnote, it considered but rejected
the manufacturer’s contention that the presumption should not
apply at all because the federal government has regulated
drug labeling for more than a century. Id. at 1195 n.3. Stating
that this argument was based on a misunderstanding of the
governing principle, the Wyeth Court explained that “[w]e
rely on the presumption because respect for the States as
‘independent sovereigns in our federal system’ leads us to
assume that ‘Congress does not cavalierly pre-empt state law
causes of action.’ ” Id. (quoting Medtronic, Inc., 518 U.S. at
485). Specifically, the presumption thereby “accounts for the
historic presence of state law but does not rely on the absence
of federal regulation.” Id.

[4] While PMSA contends that the Vessel Fuel Rules oper-
ate in fields historically occupied by the federal government
(e.g., maritime commerce, conduct at sea outside of state
boundaries, and the definition of state boundaries), we agree
with the District Court that these state regulations ultimately
implicate the prevention and control of air pollution. States
have long sought to protect their own residents from the
undisputedly harmful effects of air pollution and other forms
of environmental harms. In its 1960 ruling in Huron Portland
4084 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
Cement Co. v. City of Detroit, 362 U.S. 440 (1960), the
Supreme Court observed that “[l]egislation designed to free
from pollution the very air that people breathe clearly falls
within the exercise of even the most traditional concept of
what is compendiously known as the police power,” id. at
442. Likewise, this Court more recently stated that “[a]ir pol-
lution prevention falls under the broad police powers of the
states, which include the power to protect the health of citi-
zens in the state” and that “[e]nvironmental regulation tradi-
tionally has been a matter of state authority.” Exxon Mobil
Corp. v. U.S. EPA, 217 F.3d 1246, 1255 (9th Cir. 2000) (cit-
ing Massachusetts v. U.S. Dep’t of Transp., 93 F.3d 890, 894
(D.C. Cir. 1996)). Congress itself contemplated that the states
would retain leading roles in regulating air quality when it
passed the Clean Air Act. See, e.g., id. at 1254-55. While we
acknowledge that the state regulatory scheme at issue in
Locke likewise sought to protect the environment, we find it
significant that the Washington state law addressed the same
subject and had the same purpose, namely the prevention of
oil tanker accidents, as the federal legislation. As explained in
more detail in Section III.A.2., infra, we are not faced with
the same kind of situation here with respect to the Vessel Fuel
Rules and the SLA.

[5] Given the “historic presence of state law” in the area of
air pollution, we apply the well-established presumption or
assumption against preemption in the current appeal. See, e.g.,
Kroske v. US Bank Corp., 432 F.3d 976, 981 (9th Cir. 2005)
(“Here, although we recognize that there is a significant fed-
eral presence in the regulation of national banks, WLAD
(“Washington Law Against Discrimination”) was enacted
pursuant to the State’s historic police powers to prohibit dis-
crimination on specified grounds. Thus, we begin with the
presumption that Congress did not intend the National Bank
Act to preempt the WLAD.” (citations omitted)).

2. The SLA Does Not Preempt The Vessel Fuel Rules

Especially in light of this applicable presumption, we
believe that the District Court properly rejected PMSA’s
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4085
whole theory of implied preemption. Simply put, PMSA reads
too much into the SLA itself and what Congress itself
intended to achieve in 1953. We instead conclude that, at the
very least, a state law regulating extraterritorial conduct in the
high seas immediately adjacent to the state’s territorial waters
satisfying the well-established effects test should generally be
sustained. Applying this effects test to the Vessel Fuel Rules,
we conclude that there are genuine issues of material fact with
respect to both the effects of the fuel use governed by Califor-
nia’s regulations on the health and well-being of the state’s
residents as well as the actual impact of these regulations on
maritime and foreign commerce.

[6] Initially, we reject PMSA’s unfounded characterization
of the Vessel Fuel Rules as amounting to some sort of territo-
rial claim on the part of California. While the regulations do
use, inter alia, the term “Regulated California Waters” and
thereby set out precise geographical coordinates and descrip-
tions (understandably so given that vessel owners and opera-
tors need to know when they must comply with the fuel use
requirements), CARB, as a mere state administrative agency,
does not actually purport to extend the borders of California.
It merely seeks to regulate conduct beyond the state’s territo-
rial boundaries because of the serious harmful effects of this
conduct on the state and its residents. It therefore does not
invade or interfere with either Congress’s power to set state
territorial boundaries for domestic purposes or the President’s
power “to determine how far this country will claim territorial
rights . . . as against other nations.” Louisiana II, 363 U.S. at
35.

Turning specifically to the SLA itself, we must approach
this legislation in light of the line of Supreme Court cases
beginning with California I.

On the one hand, we do acknowledge that the initial hold-
ing in California I was premised on the fundamental principle
that the federal government possesses paramount rights over
4086 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
the marginal seas. For instance, the California I Court noted
that the “protection and control of [the 3-mile belt] has been
and is a function of national external sovereignty” and that a
national government “must have powers of dominion and reg-
ulation in the interests of its revenues, its health, and the
security of its people from [war] waged on or too near its
coasts.” California I, 332 U.S. at 35-36 (citations omitted). In
Barber v. Hawai’i, 42 F.3d 1185 (1994), we stated that the
California I Court thereby recognized the federal government
as the exclusive owner of submerged lands and the waters
above them within the 3-mile belt and that, “[c]onsequently,
before the Submerged Lands Act, the states’ jurisdiction
ended at the low-tide mark of their tidal shores,” id. at 1190.
The SLA, in turn, expressly reserves to the United States con-
current jurisdiction over the waters within this belt for pur-
poses of commerce, navigation, national defense, and
international affairs. See, e.g., 43 U.S.C. § 1314; Barber, 42
F.3d at 1190-91 (discussing 43 U.S.C. § 1311(d)).

The Court in Louisiana II further indicated that § 1312 con-
stitutes an exercise of Congress’s power to admit new states
and thereby set state boundaries. Louisiana II, 363 U.S. at 35.
Accordingly, it appears that at least one component (the com-
ponent of greatest significance in this case) of the SLA
involves more than a mere transfer of property. Such a
broader approach was apparently taken by the California
Supreme Court in People v. Weeren, 26 Cal. 3d 654 (1980).
Among other things, the state court quoted the language from
Louisiana II regarding the exercise of Congress’s power to
admit new states and set state boundaries. Id. at 660 (quoting
Louisiana II, 363 U.S. at 35). It then stated that:

We are unable to accept the People’s argument
that the effect of [United States v. California, 381
U.S. 139 (1965) (“California II”),] is limited solely
to issues involving land title which are governed by
the Act and that the high court’s holding, accord-
ingly, is therefore inapplicable to California’s politi-
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4087
cal and penal jurisdiction over adjacent seas. Fairly
read, California II established the state’s “bounda-
ries” for all purposes, political and proprietary, “as
between Nation and State.” Accordingly, these
“boundaries” are those “boundaries” referred to in
the [Fishery Conservation and Management Act of
1976] as the limits of state territorial jurisdiction
over fishing . . . .

Id. at 662. The California Supreme Court subsequently added
that the SLA itself is premised on the underlying principle
that all states possess a single and fixed seaward boundary for
all domestic purposes. Id. at 664. Despite this conclusion
regarding the location of the state’s borders, the Weeren Court
ultimately upheld the extraterritorial application of Califor-
nia’s fishing regulations. Id. at 666-69.

Similarly, the United States Supreme Court in United
States v. Maine, 469 U.S. 504 (1985) (“Maine II”), noted in
passing that “[t]he location of a State’s boundary also may be
relevant in determining the State’s right to regulate naviga-
tion” and then pointed to both Congress’s plenary right to reg-
ulate navigation under the Commerce Clause as well as a
long-standing federal statute giving the states the right to reg-
ulate pilotage in the bays, inlets, rivers, harbors, and ports of
the United States, id. at 513 n.6.

We, however, must not overlook the fact that the Supreme
Court’s various rulings, decided under the Court’s original
jurisdiction pursuant to Article III of the Constitution, specifi-
cally addressed the distinct question of who owned the sub-
merged lands (and the oil and other resources contained
therein) off the coasts of this nation (and in the process often
considered subsidiary issues like the exact parameters of a
state’s territorial boundaries). See, e.g., Maine II, 469 U.S. at
505-27; Louisiana III, 446 U.S. at 254-73; Maine I, 420 U.S.
at 516-28; California II, 381 U.S. at 142-78; Louisiana II, 363
4088 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
U.S. at 4-85, 121-29; Louisiana I, 339 U.S. at 700-06; Cali-
fornia I, 332 U.S. at 22-46.

In fact, the California I Court itself indicated that a state’s
possession of police powers over the 3-mile belt had no bear-
ing on the determination of whether the state or the federal
government owned the lands in dispute. “Conceding that the
state has been authorized to exercise local police power func-
tions in the part of the marginal belt within its declared
boundaries, these do not detract from the Federal Govern-
ment’s paramount rights in and power over this area.” Cali-
fornia I, 332 U.S. at 36 (footnote omitted). It went on to
distinguish a number of prior Supreme Court cases upholding
state regulation of conduct within the states’ territorial waters,
including Skiriotes v. Florida, 313 U.S. 69 (1941). California
I, 332 U.S. at 37-38.

A year later, the Supreme Court further considered the limi-
tations of California I. In Toomer v. Witsell, 334 U.S. 385
(1948), the Court addressed a challenge to several South Car-
olina statutes governing commercial shrimp fishing in the 3-
mile belt off the state’s coast, id. at 391-407. In the process,
it expressly rejected the theory that, because of California I,
South Carolina lacked any jurisdiction beyond the low-water
mark:

Here appellants seem to concede, and correctly so,
that such is neither the holding nor the implication of
that case; for in deciding that the United States,
where it asserted its claim, had paramount rights in
the three-mile belt, the Court purportedly quoted and
supplied emphasis to a statement in [Skiriotes, 313
U.S. at 75], that “It is also clear that Florida has an
interest in the proper maintenance of the sponge fish-
ery and that the (state) statute so far as applied to
conduct within the territorial waters of Florida, in the
absence of conflicting federal legislation, is within
the police power of the State.”
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4089
Id. at 393 (footnote omitted). Likewise, the Supreme Court
observed in United States v. Louisiana, 339 U.S. 699 (1950)
(“Louisiana I”), that “[w]e intimate no opinion on the power
of a State to extend, define, or establish its external territorial
limits or on the consequences of any such extension vis a vis
persons other than the United States or those acting on behalf
or pursuant to its authority,” id. at 705.

[7] According to PMSA, the Supreme Court itself “has
never been called upon to determine the effect of the SLA’s
boundary provisions on a state’s exercise of jurisdiction over
maritime conduct beyond the three-mile limit.” (Appellant’s
Brief at 21.) We further note that PMSA does not cite to any
judicial ruling actually striking down a state or local regula-
tory scheme on the basis of the SLA. On the contrary, the
general weight of the case law clearly indicates that the fed-
eral legislation does not have the preemptive effect advanced
by PMSA. We further conclude that the District Court’s appli-
cation of the effects test is consistent with the relevant case
law. Pursuant to this test, California may enact reasonable
regulations to monitor and control extraterritorial conduct
substantially affecting its territory.

Initially, the Supreme Court expressly rejected a challenge
to the extraterritorial application of state law to conduct
occurring beyond the state’s own territorial waters in its 1941
Skiriotes decision (which, as already noted, was subsequently
considered in both California I as well as Toomer). A Florida
resident was convicted in a Florida state court of using diving
equipment to take sponges in violation of a state statute. Skiri-
otes, 313 U.S. at 69-72. The Supreme Court upheld the con-
viction, explaining, inter alia, that “[e]ven if it were assumed
that the locus of the offense was outside the territorial waters
of Florida, it would not follow that the State could not pro-
hibit its own citizens from the use of the described divers’
equipment at that place.” Id. at 76. It went on to explain that,
if the United States may control the conduct of its own citi-
zens on the high seas, “we see no reason why the State of
4090 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
Florida may not likewise govern the conduct of its citizens
upon the high seas with respect to matters in which the State
has a legitimate interest and where there is no conflict with
acts of Congress.” Id. at 77. In reaching this conclusion, the
Skiriotes Court observed that Florida, like every other state in
the Union, retains its own status and powers as a sovereign.
Id.

Even before Skiriotes, the Supreme Court indicated that a
state could punish actions occurring in another state of the
Union because of the actions’ effects. In Strassheim v. Daily,
221 U.S. 280 (1911), Justice Holmes observed that “[a]cts
done outside a jurisdiction, but intended to produce and pro-
ducing detrimental effects within it, justify a state in punish-
ing the cause of the harm as if he had been present at the
effect, if the state should succeed in getting him within its
power,” id. at 285 (citations omitted). Accordingly, the
Supreme Court found that an individual could be prosecuted
under the laws of Michigan for criminal acts committed in
Illinois that had an impact on Michigan. Id. at 284-85 (“If a
jury should believe the evidence, and find that Daily did the
acts that led Armstrong to betray his trust, deceived the board
of control, and induced by fraud the payment by the state, the
usage of the civilized world would warrant Michigan in pun-
ishing him, although he never had set foot in the state until
after the fraud was complete.”).

Likewise, the Supreme Court in Huron Portland Cement
Co. refused to bar the prosecution of a ship owner for violat-
ing a municipal smoke abatement provision when its vessels
were docked at the city’s port even though “[s]tructural alter-
ations would be required in order to insure compliance.” 362
U.S. at 441.

[8] Given this precedent, it is not surprising that (as the
District Court recognized) the Restatement provides that a
state may regulate conduct occurring outside of its territorial
boundaries if the conduct has (or is intended to have) a sub-
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4091
stantial effect within the territory and the regulation itself is
otherwise reasonable. See Restatement (Third) of Foreign
Relations Law of the United States §§ 402(1)(c), 403.

Likewise, we previously relied on the contacts between
conduct occurring beyond California’s narrow 3-mile belt and
the state itself in order to reject a challenge to the application
of state law to such extraterritorial conduct. In PMSA v.
Aubry, 918 F.2d 1409 (9th Cir. 1990), several entities, includ-
ing PMSA itself, brought suit against California’s Labor
Commissioner seeking to prevent the enforcement of the
state’s overtime pay laws with respect to employees providing
off-shore transportation, clean-up, and other services to oil
platforms located between 1 to 12 nautical miles off the Cali-
fornia coast, id. at 1411-15. We expressly recognized the dis-
tinction between the “territorial sea,” defined as “the sea from
shore to three nautical miles off shore,” and the “high seas,”
considered to be the “ocean waters outside the territorial sea,
i.e., more than three miles offshore.” Id. at 1412. The Aubry
Court then considered “one core issue: Does federal law pre-
empt California from applying its overtime pay laws to sea-
men working on territorial waters and on the high seas off the
California coast and to maritime employees working primar-
ily on the high seas off the California coast, when the vessels
on which the employees work do not engage in foreign, inter-
coastal, or coastwise voyages.”2 Id. at 1415. In the process,
we addressed the federal Shipping Act, the Fair Labor Stan-
dards Act (“FLSA”), and the doctrine of general admiralty or
maritime law preemption. Id. at 1415-27. Answering the
question stated above in the negative, we emphasized the vari-
ous California contacts present. For instance, we noted that
“Aubry has attempted to provide additional protection to
2
As defined by the Shipping Act, “intercoastal voyages” are voyages
between ports on the Atlantic and Pacific coasts, while “coastwise voy-
ages” are voyages between a port in one state and a port in a non-adjoining
state. Aubry, 918 F.3d at 1412 (citing 46 U.S.C. §§ 10301(a)(2),
10501(a)).
4092 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
employees involved in work of critical importance to the state
—containment and clean-up of marine oil spills” and that “the
record indicates that the maritime employees involved in this
case are California residents, were interviewed and hired in
California, and pay California taxes.” Id. at 1424-25. In Fuller
v. Golden Age Fisheries, 14 F.3d 1405 (9th Cir. 1994), we
subsequently relied on this same line of reasoning in order to
distinguish Aubry and conclude that federal law preempted
Alaska state wage and overtime claims filed by crew mem-
bers working on a factory trawler, id. at 1409 (noting, inter
alia, that trawler engages in coastwise voyages, plaintiffs’
dominant job situs were the high seas, plaintiffs were not
Alaska residents, were generally hired in and began their
employment in Seattle, and were typically flown back to Seat-
tle when their employment concluded, and Alaska’s Depart-
ment of Labor indicated that it generally does not exercise
jurisdiction in such circumstances).

Despite the existence of the SLA, other courts from across
the country also have consistently rejected challenges to the
application of state law to conduct on the high seas based, at
least in part, on a consideration of the effects of such conduct
on the state in question.

The Florida Supreme Court affirmed the conviction of an
American citizen (but non-Florida resident) on state charges
of burglary and attempted sexual battery committed on the
high seas (approximately 100 nautical miles from Florida’s
Atlantic coast) on board a foreign-registered and foreign-
owned cruise ship against a 13-year old American citizen
(who also did not reside in Florida). State v. Stepansky, 761
So.2d 1027, 1029-37 (Fla. 2000). The prosecution occurred
pursuant to a Florida “special maritime criminal jurisdiction”
statute providing, inter alia, for jurisdiction over a crime
occurring on a cruise ship where the majority of paying pas-
sengers embarked and intended to disembark in Florida,
where the criminal act is also prohibited by federal law, and
where neither the federal government, the flag state, nor the
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4093
state possessing jurisdiction over the territory in which the
crime occurred have acted. Id. at 1030, 1035. The Stepansky
court found that this statutory provision and the resulting
prosecution were consistent with fundamental principles of
federalism, Congress’s constitutional powers to define pira-
cies and felonies committed on the high seas, the constitu-
tional prohibition against states entering treaties, and the
doctrine of general maritime law preemption. Id. at 1030-35.
It then applied the effects test to find that the state’s exercise
of jurisdiction here fell under its sovereign police powers. Id.
at 1035-37. According to the Florida Supreme Court, this test
was satisfied because Florida’s crucial tourism industry could
be significantly affected if crimes on board cruise ships where
a majority of the passengers embark and disembark in Florida
go un-prosecuted. Id. at 1036.

In State v. Jack, 125 P.3d 311 (Alaska 2005), the Alaska
Supreme Court agreed with Stepansky and found that Alaska
possessed extraterritorial criminal jurisdiction over an alleged
sexual assault committed on board an Alaskan state ferry in
Canadian waters, id. at 312-22. Among other things, the court
observed that the ferry route to Washington constitutes an
important link with the rest of the country, the ferry serves
localities lacking road access, ferries are important to the
state’s tourism industry, and the lack of a prosecution could
be harmful to Alaska, its economy, and its residents. Id. at
322.

Likewise, we observe that the California Supreme Court in
Weeren affirmed the criminal convictions of California resi-
dents, who held California commercial fishing licenses and
used vehicles based and licensed in California, for violation
of California’s commercial swordfish regulations by utilizing
spotter aircraft to catch fish outside of the state’s territorial
waters. 26 Cal. 3d at 658-70. In addition to recognizing the
state’s power to regulate the extraterritorial conduct of its own
residents, the state supreme court observed that California had
a powerful interest in preserving its fisheries and that such an
4094 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
interest extended beyond its borders because fish swim and do
not otherwise respect the borders drawn by governmental
entities. Id. at 666-67.

Based on the same line of reasoning, the Alaska Supreme
Court, in a very thorough opinion addressing, among other
things, the SLA and the California I line of cases, upheld the
state’s expansive crabbing regulations as applied to American
fishermen operating outside of the state’s own territorial
waters. State v. Bundrant, 546 P.2d 530, 533-56 (Alaska
1976). The same court then applied this same basic approach
to an Alaskan resident’s violation of the state’s scalloping
regulations outside of the state’s territorial waters. State v.
Sieminski, 556 P.2d 929, 930-34 (Alaska 1976). In fact, even
though it ultimately granted a preliminary injunction against
the enforcement of Alaska’s crabbing scheme on Due Process
and dormant Commerce Clause grounds, the federal district
court actually determined that it was not reasonably certain
that plaintiffs would ultimately succeed on a statutory pre-
emption claim premised in part on § 1312. Hjelle v. Brooks,
377 F. Supp. 430, 432-42 (D. Alaska 1974).

Furthermore, we conclude that the District Court quite
properly relied on two circuit court decisions expressly con-
sidering the SLA and its bearing on a state’s power to regulate
extraterritorial conduct. Both of these decisions provide yet
further support for the District Court’s preemption ruling.

In Warner v. Dunlap, 532 F.2d 767 (1st Cir. 1976), the
First Circuit specifically addressed the question of whether a
Rhode Island statute, requiring every foreign vessel and every
American vessel registered for foreign trade traversing Block
Island Sound to take on a Rhode Island-licensed pilot, falls
under the scope of the federal pilotage statute, id. at 768. This
federal provision, already mentioned in connection with our
brief discussion of Maine II, provides for the state regulation
of pilots in bays, inlets, rivers, harbors, and ports. Considering
a challenge filed by Connecticut pilots, the federal appellate
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4095
court ultimately upheld the state requirement, finding that the
waters in question constituted a “bay.” Id. at 768-72. In the
process, it specifically rejected the Connecticut pilots’ theory
that Rhode Island could not regulate their activities on the
grounds that the routes they used were more than 3 miles off
of the Rhode Island shore and that, pursuant to the SLA, the
state only has territorial jurisdiction over this 3-mile zone. Id.
at 772. According to the First Circuit:

We do not, however, find merit in this claim. The
issue of a state’s territorial limits, see, e.g., [Califor-
nia II and Maine I], supra, is distinct from that of its
right to control navigation. States have been permit-
ted to assert their pilotage regulations at distances
greater than three miles from their shores. By per-
mitting states to regulate local pilotage Congress
sought to protect vessels from “invisible hazards”
that may be present in a state’s waters until the ship
can be guided to the open sea. And there is no statu-
tory or other basis for imposing a three-mile limit on
such regulation.

Id. (footnote omitted) (citations omitted). In an accompanying
footnote, the First Circuit specifically upheld the district
court’s finding that Block Island Sound was not part of the
open ocean.3 Id. at 772 n.14.

The Fifth Circuit considered a similar challenge in Gillis v.
Louisiana, 294 F.3d 755 (5th Cir. 2002). Pilots claimed that
Louisiana lacked the authority to regulate their activities on
the portion of the Calcasieu Ship Channel lying more than 3
miles from the state’s coastline. Id. at 756. The Fifth Circuit
rejected this claim, noting, inter alia, that Congress has tradi-
3
In Maine II, the Supreme Court likewise concluded that at least a por-
tion of Block Island Sound constituted a juridical bay and therefore inter-
nal state waters. Maine II, 469 U.S. at 505-27. In its opinion, the Supreme
Court expressly referred to the First Circuit’s ruling in Warner. Id. at 507.
4096 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
tionally left the regulation of pilotage largely to the states. Id.
at 756-62. With respect to the pilots’ argument that Con-
gress’s enactment of § 1312 limited the ability of the states to
regulate pilotage beyond their respective seaward boundaries,
the Gillis court stated that:

First, we disagree with the Pilots’ premise that Con-
gress implicitly limited state authority to regulate
pilotage to bodies of water within their territorial
boundaries when it enacted 43 U.S.C. § 1312. Sec-
tion 1312, which is part of the Submerged Lands
Act, addresses only who retains title to submerged
lands both within and beyond the three-mile line,
with particular reference to ownership and explora-
tion of natural resources in the seabed and subsoil.
It does not address the regulation of pilotage on the
waters above.

Id. at 761 (footnote omitted). In reaching this conclusion, the
Fifth Circuit expressly relied on the earlier ruling in Warner.
Id. at 761 n.10.

In the end, PMSA does raise an extensive range of argu-
ments regarding this case law and its overall theory of SLA
preemption. We specifically acknowledge that the prior deci-
sions could certainly be distinguished in a variety of ways,
and we further recognize that at least some of these cases may
have problems or deficiencies of their own. However, we can-
not overlook the clear weight of this case law, especially in
light of the applicable general presumption against preemp-
tion.

Accordingly, we believe that PMSA simply reads too much
into the SLA itself. Congress, responding to such cases as
California I, was primarily concerned with the distinct ques-
tion of who owned the “submerged lands” and their valuable
natural resources and accordingly adopted legislation that, to
a great extent, was essentially a kind of real estate convey-
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4097
ance. Even if the statute does set out state territorial bounda-
ries, it does not really address the separate question of
whether the states are totally precluded from regulating any
conduct beyond their seaward boundaries, even if such con-
duct clearly harms the state, its residents, and its interests.
While the location of a state’s territorial boundaries remains
a critical consideration, it does not appear that Congress ever
intended to create some sort of absolute (or near-absolute)
rule under which otherwise sovereign states are precluded
from exercising their expansive police powers with respect to
extraterritorial conduct even if such an exercise is more than
amply justified and does not interfere or conflict with any spe-
cific federal statute. In other words, PMSA is wrong to sug-
gest that the SLA creates a territorial zone in which federal
authority is not only paramount but always (or almost always)
exclusive. In fact, the relatively terse provisions contained in
the SLA appear to be at odds with such a broad suggestion,
especially when compared with the extensive and elaborate
preemptive schemes addressed in such cases as Locke.4

[9] Accordingly, the District Court was correct to conclude
that, given the limited purposes of the SLA, it should not be
applied in a mechanical fashion to override any and all state
regulation of conduct occurring more than 3 miles from the
coast.5 On the contrary, a state law regulating extraterritorial
4
We further observe that, like Locke, our prior ruling in Chevron U.S.A.
Inc. v. Hammond, 726 F.2d 483 (9th Cir. 1984), dealt with the claim that
Alaska’s ballast requirements for oil tankers were preempted under the
PWSA and the Ports and Tanker Safety Act of 1978 (“PTSA”), id. at 485-
501. Therefore, our dicta regarding the paramount federal interest in uni-
form environmental regulation of deep ocean waters must be considered
in its specific context. See id. at 492 n.12. In any case, we return to this
dicta in Section III.B., infra.
5
We further observe that PMSA undercuts its own preemption theory by
appearing to recognize a rather lengthy list of qualifications or exceptions
to its purported general rule of federal exclusivity beyond the SLA bound-
aries (e.g., pilotage regulations, the application of a generally applicable
state law to a particular prior crime or specific incident, or the regulation
4098 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
conduct outside of the state’s territorial waters should gener-
ally be upheld if it satisfies the well-established effects test
(and, of course, is not otherwise foreclosed by any other fed-
eral constitutional, statutory, or regulatory requirement).

[10] Applying this effects test to the Vessel Fuel Rules,6
we agree with the District Court that there are, at the very
least, genuine issues of material fact precluding summary
judgment in favor of PMSA. In fact, PMSA does not dispute
either the devastating impact on California and its residents of
the low-grade fuel used by ocean-going vessels within 24
miles of the state’s coastline or the clear benefits of the Vessel
Fuel Rules themselves. Having supported the ratification of
Annex VI and the recent adoption of the ECA, PMSA evi-
dently has no real objection to the underlying fuel use require-
ments established by CARB and merely seeks a single
universal standard applicable in all jurisdictions. Likewise, we

of conduct by the state’s own residents). On the other hand, it also appears
to call into question the significance of the boundaries purportedly estab-
lished by the SLA by failing to concede that the Vessel Fuel Rules are
valid within the 3-mile belt and apparently leaving open the real possibil-
ity of a future legal challenge even if it prevails in the current litigation.
6
PMSA contends that the Vessel Fuel Rules do not constitute an
“effects-based” regulation. According to PMSA, the current regulations
merely target the fuel used, unlike CARB’s Marine Vessel Rules that actu-
ally targeted the emissions resulting from the fuel used (in other words,
the “effects” of the fuel). Of course, we previously struck down these
emission standards as preempted by the Clean Air Act. Goldstene, 517
F.3d at 1109-15. We further indicated that in-use fuel requirements would
not be barred by the Clean Air Act. Id. at 1115. CARB quite understand-
ably drafted the Vessel Fuel Rules in order to correct the fatal deficiency
identified in Goldstene, only for PMSA to now claim that the resulting
regulations cannot satisfy the well-established effects test. In any case, we
conclude that the Vessel Fuel Rules are clearly premised on the harmful
effects of the fuel used by the ocean-going vessels governed by the regula-
tions. In the apt words of the District Court, “[t]he express purpose of the
regulations . . . is to reduce air pollutants affecting the State of California
by requiring ocean-going vessels to use cleaner marine fuels.” (ER24
(footnote omitted).)
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4099
further observe that the Vessel Fuel Rules generally apply to
“foreign and U.S. flag-commercial ships calling at California
ports,” and, among other things, contain an exemption for
vessels merely passing through the region. (Appellant’s Brief
at 5.) Especially in light of the sheer amount and importance
of the shipping that goes through California (particularly
Southern California), the regulated conduct here clearly has a
close connection with the state, even apart from the environ-
mental impact of this conduct. Contrary to PMSA’s character-
izations, we are also confronted with a state regulatory
scheme applicable to the high sea waters immediately adja-
cent to the state itself (as opposed, for example, to an attempt
to regulate ships in Shanghai Harbor because of their effects
on global climate change).

Turning to the specific environmental effects, we observe
that: (1) in 2006, ocean-going vessels operating within the
applicable 24-mile zone were estimated to generate, per day,
approximately 15 tons of PM, 157 tons of NOx, and 117 tons
of SOx; (2) emissions from these vessels are believed to con-
stitute the single largest source of SOx emissions in Califor-
nia; (2) the vessels’ daily PM emissions represent the
equivalent of approximately 150,000 big rig trucks traveling
125 miles per day; (3) 27 million Californians, representing
80% of the state’s population, are exposed to these emissions;
(4) these emissions are known to cause cancer, respiratory ill-
nesses, and to increase the risk of heart disease, and CARB
estimated that the vessels’ direct PM emissions alone cause at
least 300 premature deaths every single year; and (5) the
effects of the fuel use have long been especially severe in the
South Coast Air Basin region of Southern California, with
over 80% of the population in this heavily populated region
exposed to PM2.5 levels exceeding federal standards. In fact,
the harmful effects giving rise to the Vessel Fuel Rules appear
to be even more severe than, for example, the somewhat more
indirect effect of criminal acts committed on a foreign cruise
ship on the high seas and on a state’s tourism industry.
4100 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
Full implementation of the Vessel Fuel Rules should signif-
icantly reduce these harmful effects (e.g., sulfur oxide emis-
sions should be cut by approximately 90%). This should then
result, inter alia, in health care savings as well as the preven-
tion of approximately 3,500 premature deaths and nearly
100,000 asthma attacks. In addition, the South Coast District
should finally be able to comply with national air quality stan-
dards by the 2014 deadline and thereby avoid the threat of
federal sanctions.

We add that the apparent effects of the Vessel Fuel Rules
on foreign and interstate commerce and navigation provide
additional support for our ruling here. In English v. General
Electric Co., 496 U.S. 72 (1990), the Supreme Court found
that federal law did not preempt a state law claim for inten-
tional infliction of emotional distress brought by an employee
at a nuclear-fuels production facility against her employer
arising out of alleged retaliatory actions because of her safety
complaints, id. at 74-90. The Court specifically observed that
the effect of the litigation (specifically that, as employers find
retaliation more costly, they will be forced to deal with
worker complaints by other means, including altering their
safety policies) was “neither direct nor substantial enough to
place petitioner’s claim in the pre-empted field [of nuclear
safety].” Id. at 85. The District Court likewise emphasized
that PMSA presented no evidence indicating that the Vessel
Fuel Rules impeded commerce or navigation, observing in
particular that: (1) PMSA admitted that compliance is not
technically impossible or even especially difficult; (2) PMSA
failed to show that the required fuel is unavailable or other-
wise would adversely affect ship operations; and (3) any
increased cost, although estimated at approximately
$30,000.00 per vessel call, would appear to be relatively small
in comparison with the overall cost of a trans-Pacific voyage
(representing less than 1% of the cost of a typical trans-
Pacific voyage and approximately a $6.00 increase per 20-
foot shipping container) as well as the increased costs eventu-
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4101
ally passed on to the ultimate consumer (amounting, for
instance, to an extra 12.5 cents in the cost of a plasma TV).

Admittedly, we observe that the overall costs to the ship-
ping industry of complying with a rather expansive regulatory
program applicable to one of the largest and most important
trade routes in the world do appear to be quite significant
(with the industry-wide cost of compliance estimated at $360
million annually and $1.5 billion through the end of 2014).
However, we do believe that PMSA still fails to show the
absence of any genuine issue of material fact with respect to
the regulations’ impact on commerce and navigation. See.,
e.g., Ray v. Alt. Richfield Co., 435 U.S. 151, 179-80 (1978)
(rejecting dormant Commerce Clause challenge to state tug-
escort requirement for oil tankers in part because it did not
“appear from the record that the requirement impedes the free
and efficient flow of interstate and foreign commerce, for the
cost of the tug escort for a 120,000 DWT tanker is less than
one percent per barrel of oil and the amount of oil processed
at Puget Sound refineries has not declined as a result of the
provision’s enforcement”).

[11] For the foregoing reasons, we determine that, in light
of the applicable presumption against preemption, the District
Court properly denied PMSA’s motion for summary judg-
ment as to its claim of implicit field preemption under the
SLA.

B. The Dormant Commerce Clause And General Mari-
time Law Preemption

[12] The Commerce Clause of the United States Constitu-
tion gives Congress the power “[t]o regulate Commerce with
foreign Nations, and among the several States.” U.S. Const.
Art. I, § 8, cl. 3. The vital role of the Commerce Clause to our
federal system of government is undisputed. It was designed
in the first place “to avoid the tendencies toward economic
Balkanization that had plagued relations among the Colonies
4102 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
and later among the States under the Articles of Confedera-
tion.” Hughes v. Oklahoma, 441 U.S. 322, 325 (1979) (cita-
tion omitted). Under the dormant Commerce Clause doctrine,
state legislation may be unconstitutional because of its effect
on national or foreign commerce even in the absence of Con-
gressional action. See, e.g., Barclay’s Bank PLC v. Franchise
Tax Bd., 512 U.S. 298, 310 (1994). The Commerce Clause
power, nevertheless, still “belongs to Congress, not the
courts,” and the whole objective of the dormant Commerce
Clause doctrine is to protect Congress’s latent authority from
state encroachment. Fednav, Ltd., 547 F.3d at 624.

In Barber, we observed that the Supreme Court has gener-
ally outlined a two-tiered approach to the dormant Commerce
Clause:

“[T]he first step in analyzing any law subject to
judicial scrutiny under the negative Commerce
Clause is to determine whether it ‘regulates even-
handedly with only “incidental” effects on interstate
commerce, or discriminates against interstate com-
merce.’ As we use the term here, ‘discrimination’
simply means differential treatment of in-state and
out-of-state economic interests that benefits the for-
mer and burdens the latter. If a restriction on com-
merce is discriminatory, it is virtually per se invalid.
By contrast, nondiscriminatory regulations that have
only incidental effects on interstate commerce are
valid unless ‘the burden imposed on such commerce
is clearly excessive in relation to the putative local
benefits.’

42 F.3d at 1194 (quoting Or. Waste Sys. Inc. v. Dep’t of Envtl.
Quality, 511 U.S. 93, 99 (1994)). In other words, there are
two broad categories of state regulations burdening interstate
commerce: (1) those that directly burden interstate commerce
or otherwise discriminate against out-of-state interests; and
(2) those that incidentally burden commerce. See, e.g., Kleen-
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4103
well Biohazard Waste & Gen. Ecology Consultants, Inc. v.
Nelson, 48 F.3d 391, 395 (9th Cir. 1995). Regulations falling
under the first category are generally struck down, while those
in the second group are reviewed under a balancing test. See,
e.g., id. Under this balancing test, regulations may violate the
Commerce Clause if the burdens they impose so outweigh the
putative benefits so as to render the regulations unreasonable
or irrational. See, e.g., UFO Chuting of Haw., Inc. v. Smith,
508 F.3d 1189, 1196 (9th Cir. 2007). In turn, this Court previ-
ously explained that “[i]t is clear, however, that the Supreme
Court used the term ‘direct’ to refer to regulations whose cen-
tral purpose is to regulate commerce, usually in order to bene-
fit local interests.” Nelson, 48 F.3d at 396.

The Commerce Clause imposes certain specific restrictions
with respect to the extraterritorial reach of state law. These
limitations “reflect the Constitution’s special concern both
with the maintenance of a national economic union unfettered
by state-imposed limitations on interstate commerce and with
the autonomy of the individual States within their respective
spheres.” Healy v. Beer Inst., 491 U.S. 324, 335-36 (1989)
(footnotes omitted). Accordingly, the Commerce Clause pro-
hibits state legislation regulating commerce that takes place
wholly outside of the state’s borders, regardless of whether
the commerce has effects within the state. See, e.g., id. at 336;
Edgar v. MITE Corp., 457 U.S. 624, 642-43 (1982). Among
other things, the court must consider the practical effects of
the regulatory scheme, taking into account the possibility that
other states may adopt similar extraterritorial schemes and
thereby impose inconsistent obligations. See, e.g., Healy, 491
U.S. at 336-37. Nevertheless, in applying these standards, a
court must not overlook the fact that the “critical consider-
ation in determining whether the extraterritorial reach of a
statute violates the Commerce Clause is the overall effect of
the statute on both local and interstate commerce.” Id. at 337
n.14 (citing Brown-Forman Distillers Corp. v. N.Y. State
Liquor Auth., 476 U.S. 573, 579 (1986)).
4104 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
The foreign commerce context places further constraints on
state power because of “ ‘the special need for federal unifor-
mity.’ ” Barclays Bank PLC, 512 U.S. at 311 (quoting War-
dair Canada Inc. v. Fla. Dep’t of Revenue, 477 U.S. 1, 8
(1986)). Accordingly, a court must also take into account the
federal government’s “capacity to ‘speak with one voice when
regulating commercial relations with foreign governments.’ ”
Id. (quoting Japan Line, Ltd. v. Cnty. of Los Angeles, 441
U.S. 434, 448 (1979)).

This appeal further implicates the doctrine of general admi-
ralty or maritime law preemption, which resembles the dor-
mant Commerce Clause doctrine. The Constitution provides
that the judicial power of the United States shall extend “to
all Cases of admiralty and maritime Jurisdiction.” U.S. Const.
Art. III, § 2, cl. 1. In Southern Pacific Co. v. Jensen, 244 U.S.
205 (1917), the Supreme Court held that no state regulation
is valid “if it contravenes the essential purpose expressed by
an act of Congress, or works material prejudice to the charac-
teristic features of the general maritime law, or interferes with
the proper harmony and uniformity of that law in its interna-
tional and interstate relations,” id. at 216. In Aubry, we
observed that “[o]ur review of relevant case authority leads us
to conclude that the general rule on preemption in admiralty
is that states may supplement federal admiralty law as applied
to matters of local concern, so long as state law does not actu-
ally conflict with federal law or interfere with the uniform
working of the maritime legal system.” Aubry, 918 F.3d at
1422 (footnote omitted). To determine whether there is any
interference, we must yet again apply a balancing test, weigh-
ing the state and federal interests on a case-by-case basis. See,
e.g., In re Exxon Valdez, 484 F.3d 1098, 1101 (9th Cir. 2007).

Although generally framed in dormant Commerce Clause
terms, PMSA advances a number of arguments in support of
its challenge to the Vessel Fuel Rules. In addition to prior
case law, it relies, inter alia, on Annex VI of MARPOL and
the ECA program, the Clean Air Act, and two Presidential
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4105
Proclamations purportedly extending the “territorial sea” or
“contiguous zone” of the United States.7 At their most funda-
mental level, these contentions appear to rest on the funda-
mental role of uniformity and the need for this country to
speak with only one voice in its dealings with other countries
without undue embarrassment arising from disparate state
regulatory schemes. After considering PMSA’s various argu-
ments, we must ultimately reject the Commerce Clause and
general maritime law preemption claims at this time. Simply
put, the fact that the Vessel Fuel Rules require ocean-going
vessels to switch to cleaner fuels 24 miles from California’s
coast, and not 3 miles from the coast, does not conflict with
either the dormant Commerce Clause or the fundamental prin-
ciples of general maritime law.

[13] Initially, the regulatory scheme at issue here clearly
does not fall under the “direct” category of state regulations
because the central purpose of the Vessel Fuel Rules is to pro-
tect the health and well-being of the state’s residents from the
harmful effects of the fuel used by ocean-going vessels. The
otherwise even-handed and generally applicable Vessel Fuel
Rules also do not appear to discriminate against any out-of-
state interests. We therefore are not presented with an exam-
ple of state economic protectionism or favoritism. We are
instead faced with an environmental regulatory scheme hav-
ing only an incidental or indirect effect on commerce. We fur-
ther note that the Supreme Court in Ray v. Atlantic Richfield
Co., 435 U.S. 151 (1978), actually found that a state tug
requirement was not barred by the Commerce Clause because,
inter alia, the cost of a tug escort for a 120,000-ton tanker “is
less than one cent per barrel of oil” and there was no evidence
7
Specifically, Presidential Proclamation No. 5928, issued by President
Reagan in 1988, extends the “territorial sea of the United States” to 12
nautical miles from the United States’s baselines. Likewise, President
Clinton issued Presidential Proclamation No. 7219 in 1999, which extends
the “contiguous zone of the United States” to 24 nautical miles from the
respective baselines. Both Proclamations state, inter alia, that they do not
amend or otherwise alter existing federal or state law.
4106 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
that the requirement would impede the free and efficient flow
of commerce, id. at 179. As discussed in Section III.A.2.,
supra, the regulations at issue here also appear to impose a
relatively light burden on navigation and commerce.

[14] The Vessel Fuel Rules also do not apply to commer-
cial activities occurring “wholly outside” of the territorial lim-
its of California. They instead continue to govern the fuel use
of ocean-going vessels traveling to and from California’s
ports while they are within the state’s own territorial waters.
We further note that PMSA evidently does not claim that the
Vessel Fuel Rules contravene any act of Congress (with the
major exception of the SLA) or prejudice any “characteristic
feature” of federal maritime law.

The Court therefore must turn to a balancing test with
respect to both the dormant Commerce Clause and general
maritime law preemption claims.

We recognize the importance of uniformity as well as the
unique role of the federal government in matters of foreign
relations and international trade. In fact, the federal govern-
ment, foreign countries, and international bodies have contin-
ued to take steps to control the critical problem of air
pollution originating from ocean-going vessels, most signifi-
cantly in the recently adopted ECA.

We further observe that we have emphasized that the
notion of uniformity takes on special importance with respect
to environmental regulation on the high seas. In Hammond,
we rejected the claim that Alaska’s prohibition against oil
tankers discharging ballast from their oil tanks into the state’s
territorial waters was preempted by the PWSA and PTSA.
Hammond, 726 F.2d at 484-501. In a footnote, we expressly
distinguished between coastal environmental regulation and
regulation in deep waters: “Of course, as to environmental
regulation of deep ocean waters, the federal interest in unifor-
mity is paramount. Such regulation in most cases needs to be
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4107
exclusive because the only hope of achieving protection of the
environment beyond our nation’s jurisdiction is through inter-
national cooperation.” Id. at 492 n.12. The Aubry Court like-
wise referenced this footnote in its discussion of whether
California’s overtime laws were preempted by federal admi-
ralty or maritime law. Aubry, 918 F.2d at 1426 n.24. In a foot-
note, we explained that “our concern [in Hammond] was
clearly with regulation of international oil transport and inter-
national environmental protection efforts” and that “the fed-
eral interest in uniformity is not as great, because the
employees involved in [Aubry] are not engaged in foreign,
intercoastal, or coastwise voyages.” Id.

[15] Nevertheless, we conclude that the interests weighing
in favor of striking down the Vessel Fuel Rules are rather
attenuated in the present circumstances. Among other things,
the District Court appropriately noted that the federal statute
implementing Annex VI of MARPOL contains an express
savings clause. See 33 U.S.C. § 1911 (“Authorities, require-
ments, and remedies of this chapter supplement and neither
amend nor repeal any other authorities, requirements, or rem-
edies conferred by any other provision of law. Nothing in this
chapter shall limit, deny, amend, modify, or repeal any other
authority, requirement, or remedy available to the United
States, or any person, except as expressly provided in this
chapter.”). The Vessel Fuel Rules also contain a sunset clause,
and it is reasonable to predict that, once the heightened stan-
dards established by the ECA go into effect, the Vessel Fuel
Rules will be terminated. In the end, no federal (or interna-
tional) environmental regime specifically prohibits the state
regulations at issue here. See, e.g., Goldstene, 517 F.3d at
1115 (noting that Clean Air Act permits state in-use require-
ments). With respect to the Hammond (and Aubry) dicta, the
District Court reasonably noted that the language regarding
the federal interest in uniformity “does not apply here . . .
inasmuch as the United States has established a 24-mile con-
tiguous zone for purposes of exercising territorial control” and
“[t]he area at issue in this case falls within that twenty-four
4108 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
mile zone and does not extend to international deep waters
falling outside that boundary.” (ER35 n.4 (citing Presidential
Proclamation No. 7219).)

Accordingly, we are not currently confronted with a state
attempting to regulate conduct in either another state of the
Union (such as in PMSA’s example of a hypothetical Califor-
nia regulatory scheme requiring automobiles driving from
Arizona to switch to certain kinds of fuel 24 miles from the
California border), in the territory or waters of a foreign
nation (such as, in another example provided by PMSA, a reg-
ulation governing fuel use in Shanghai harbor), or in the open
ocean waters hundreds or even thousands of miles from the
state’s coast.

[16] In contrast, the state of California clearly has an espe-
cially powerful interest in controlling the harmful effects of
air pollution resulting from the fuel used by ocean-going ves-
sels while they are within 24 miles of the state’s coast. In Sec-
tion III.A.2., supra, we discussed in some detail the
undisputed evidence regarding the highly damaging and even
life-threatening effects of this air pollution on the people of
California as well as the clear benefits resulting from the reg-
ulations adopted by CARB. The protection of our environ-
ment has repeatedly been recognized as a legitimate and
important state interest. See, e.g., Huron Portland Cement
Co., 362 U.S. at 442, 445-46, 448; Nelson, 48 F.3d at 398,
400-01; Aubry, 918 F.2d at 1426. Based on the record before
us, the exceptionally powerful state interest at issue here far
outweighs any countervailing federal interests.8
8
Furthermore, we also should not overlook the fact that the Vessel Fuel
Rules are apparently necessary in order for the South Coast District to
comply with federal air quality standards by the applicable 2014 deadline
(and thereby avoid the possible imposition of various sanctions by the
EPA, including the loss of billions of dollars in federal transportation
funds). At the very least, it appears to be especially inappropriate to strike
down state regulations as contrary to the dormant Commerce Clause or the
doctrine of general maritime law preemption when these same regulations
are needed to comply with basic federal standards in the first place.
 PACIFIC MERCHANT SHIPPING v. GOLDSTENE 4109
Therefore, we must reject PMSA’s dormant Commerce
Clause and general maritime law theories at this juncture. Our
result is consistent with the overwhelming weight of the case
law.

We note that the Supreme Court in Huron Portland Cement
Co. rejected a Commerce Clause challenge to the prosecution
of a ship owner for violating a municipal smoke abatement
provision when its vessels were docked at the city’s port even
though “[s]tructural alterations would be required in order to
insure compliance.” 362 U.S. at 441. Emphasizing that the
local ordinance represented a generally applicable rule
designed to promote the health and welfare of the community,
the Court went on to reject the challenger’s argument “that
other local governments might impose differing requirements
as to air pollution” as unsupported by the record. Id. at 448.
Likewise, it appears that no other state in the Union has
adopted, or is likely to adopt before the full implementation
of the ECA, any “competing or conflicting” fuel use require-
ments. Id.

In Aubry, we likewise rejected the claim that the doctrine
of general maritime or admiralty law preemption precluded
the application of California’s overtime pay laws to California
residents working on the high seas off the California coast to
protect the state’s coastal environment. Aubry, 918 F.2d at
1419-27. The Florida Supreme Court in Stepansky also
expressly determined that a state court conviction for crimes
committed on a cruise ship on the high seas pursuant to Flori-
da’s special maritime criminal jurisdiction statute did not vio-
late the general maritime law preemption doctrine. 761 So. 2d
at 1033-34. Similarly, the Alaska Supreme Court rejected a
dormant Commerce Clause challenge to Alaska’s expansive
and extraterritorial restrictions on crabbing. Bundrant, 546
F.2d at 537-41. While we again acknowledge that these vari-
ous decisions may be distinguishable on a variety of grounds,
we believe that they provide further support for upholding the
California regulations.
4110 PACIFIC MERCHANT SHIPPING v. GOLDSTENE
[17] In the end, we acknowledge the unusual characteris-
tics and circumstances of the Vessel Fuel Rules. We are
clearly dealing with an expansive and even possibly unprece-
dented state regulatory scheme. However, the severe environ-
mental problems confronting California (especially Southern
California) are themselves unusual and even unprecedented.
Under the circumstances, we do not believe that the Com-
merce Clause or general maritime law should be used to bar
a state from exercising its own police powers in order to com-
bat these severe problems.

IV.

For the foregoing reasons, we will affirm the District
Court’s denial of PMSA’s motion for summary judgment.

AFFIRMED.