Marpol Amendment Procedure

Marpol Amendment Procedure

Constitutionality of Marpol Amendment Procedure in 2013

United States views on international law [1] in relation to Constitutionality of Marpol Amendment Procedure: In 2013, the U.S. District Court for the District of Alaska issued its decision on the U.S. motion to dismiss a case brought by the state of Alaska and joined by the Resource Development Council (“RDC”) challenging the procedure by which an emissions control area (“ECA”) off the coast of Alaska was established pursuant to the International Convention for the Prevention of Pollution from Ships (“MARPOL”), including Annex VI, and domestic implementing legislation (the Act to Prevent Pollution from Ships, “APPS,” 33 U.S.C. §§ 1901 to 1915). Alaska v. Kerry, 972 F.Supp.2d 1111 (D. Alaska, 2013). The court granted the motion to dismiss and denied Alaska's motion for an injunction. The court first considered the applicability of the political question doctrine to the first cause of action in the complaint, which alleged violations of the APPS and the Administrative Procedure Act (“APA”) in the establishment of the ECA. The court agreed with the United States that the first cause of action raises a nonjusticiable political question and is therefore not subject to judicial review. The court next considered the claims under the Treaty Clause of the U.S. Constitution and the separation of powers doctrine, specifically, claims that the executive branch did not have the domestic authority to implement the amendment to MARPOL establishing the Alaska ECA because the amendment did not receive the advice and consent of the Senate nor was it implemented by legislation. As a threshold matter, the court held that whether domestic implementation of the ECA through the APPS presents an unconstitutional delegation of authority was not a political question. The section of the opinion discussing the Treaty Clause is excerpted below (with most footnotes omitted).

Some Aspects of Constitutionality of Marpol Amendment Procedure

…The parties agree that MARPOL and Annex VI were enacted into domestic law by APPS. The State maintains that the subsequent North American ECA amendment at issue in this litigation never came validly into force in the United States, as the Senate did not approve it and Congress did not implement it. The Defendants disagree, maintaining that both the Senate and Congress authorized the U.S. Secretary of State to accept the ECA amendment ex ante, and that such approach is constitutionally permissible. i. Political Question Doctrine.

Developments

… [I]n Hopson v. Kreps the Ninth Circuit held “that the criteria enunciated [in Baker] generally do not apply to claims that the executive has exceeded specific limitations on delegated authority.” Indeed, the language the Supreme Court used in Baker renders the inapplicability of the Baker factors to this issue even clearer. The Supreme Court explained that “[t]he doctrine of which we treat is one of 'political questions,' not one of 'political cases.' The courts cannot reject as 'no law suit' a bona fide controversy as to whether some action denominated 'political' exceeds constitutional authority.” Given this clear directive, the Court agrees with RDC that “[b]ecause the Constitution sets forth the requirement of Senate consent in the Treaty Clause, determining whether the Treaty Clause requires Senate consent to the ECA amendment falls squarely within the Court's province.” Thus, the Court has subject matter jurisdiction over this issue and may consider it under Rule 12(b)(6).

Details

ii. Senate Approval. The [Second Amended Complaint or] SAC asserts that the U.S. Secretary of State's acceptance of the ECA amendment “did not create domestic federal law under the Treaty Clause . . . because it was not made by the President with the advice and consent of the Senate. Similarly, RDC asserts that “the Treaty Clause necessarily applies with equal force to treaty amendments, preventing them from becoming U.S. law without Senate advice and consent.”

More

Preliminarily, the parties dispute whether Congress intended renewed Senate advice and consent to be part of the acceptance process for MARPOL Annex amendments. The Defendants maintain that the Senate gave its advice and consent when it approved Annex VI with the understanding that future designations of ECAs would not be referred to the Senate for further action. RDC asserts that Congress intended the prospective approval of amendments to apply only to technical amendments to MARPOL. It cites to the legislative history of the bill that became APPS, H.R. 6665, to support this assertion. The bill was referred to the House Committee on Merchant Marine and Fisheries, which produced a report recommending its passage. In the report's section-by-section analysis, the committee commented on the section that later became 33 U.S.C. § 1909. The committee explained that “[t]his section requires the advice and consent of the Senate to any proposed amendments to the MARPOL Protocol Articles.” However, it explained that amendments to MARPOL Annexes were subject to a different process involving the U.S. Secretary of State:

This rapid amendment process provides for relatively rapid updating of technical provisions without requiring the traditional, but more cumbersome, treaty revision process that will still be required for the MARPOL Protocol Articles. This rapid amendment process is necessary to stay abreast of new technology, thereby ensuring effective control of pollution from ships operating in the marine environment.

More

The Federal Defendants assert that “RDC fails to acknowledge [a] threshold, dispositive textual issue,” which is that a limitation to technical amendments does not appear in the statutory language of APPS. Rather, they contend, “the ECA amendment fits within the express terms of Section 1909(b),” and “the ECA designation was among the types of amendments expressly highlighted by the Senate in its consideration that certain MARPOL amendments would not be brought to the Senate for its advice and consent.” They identify documents in the legislative history of the ratification of Annex VI that support their position, several of which are also cited by the Environmental Defendants. RDC asserts that the Federal Defendants “selectively quote” documents in the legislative history and maintains that a closer look indicates the Senate “understood the executive could implement only certain types of amendments” without additional approval. The Court finds that overall, the parties' citations clearly indicate the Senate was aware that certain types of amendments would be approved without further Senate involvement. This Court need not determine exactly what references to “technical” amendments in the House committee report may have meant, as the plain language of the statute is unambiguous and therefore dispositive: 33 U.S.C. § 1909(a) specifically requires “the advice and consent of the Senate” for amendments to MARPOL proper. However, Section 1909(b) expressly exempts certain amendments—including “proposed amendment[s] to Annex I, II, V, or VI to the Convention”—from that requirement.

Resources

Notes

  1. Constitutionality of Marpol Amendment Procedure in the Digest of United States Practice in International Law

Posted

in

,

by

Comments

Leave a Reply

Your email address will not be published. Required fields are marked *