Adam Patrick Murray (University of Washington School of Law) has posted California Falls into the Sea: Pacific Merchant Shipping Assoc. v. Goldstene & State Authority to Regulate Beyond the Territorial Sea on SSRN. Here is the abstract:
To comply with the Clean Air Act, California regulates the content of certain vessel fuels up to 21 miles beyond its seaward border. Even though this regulation governs vessels regardless of citizenship, and the U.S. already enforces a different international fuel standard in the same area, the Ninth Circuit upheld the laws because they address a dire local pollution problem. Much analysis has focused on whether the Ninth Circuit got the preemption analysis right. This paper focuses on a more fundamental question: What, if anything, gave California the authority to regulate non-citizen conduct seaward of the state line? The background details the 2011 decision in Pacific Merchant Shipping Association v. Goldstene and briefly explains the recent history of ocean sovereignty. The analysis section launches from a 1947 case holding that states have no intrinsic authority to regulate seaward of their shores. This paper then reviews the major legal turning points discussed in Goldstene to find out if any justify the geographic extension of California’s regulatory authority. The paper concludes with a proposed amendment to the Act to Prevent Pollution from Ships that preserves maritime harmony and uniformity in vessel emission standards.
