Exotic politics: An analysis of the law and politics of exotic invasions of the Great Lakes

Toledo Journal of Great Lakes' Law, Science and Policy

Volumn 2, Issue 2, 2000, Pages 125-206

  Reeves, Eric ^a,b,c,d,e  

^a U S COAST GUARD   (United States)

^b Michigan Dept Environ Qual I   (United States)

^c WAYNE STATE UNIVERSITY   (United States)

^d KENT STATE UNIVERSITY   (United States)

^e CARLETON UNIVERSITY   (Canada)

Author keywords

[No Author keywords available]

Indexed keywords

BALLAST WATER; INTRODUCED SPECIES; POLLUTION CONTROL; SHIPPING; WATER POLLUTION;

UNITED STATES;

EID: 0034041052     PISSN: 10979328     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (398)

1. 16 U.S.C. §§ 4701 et seq.
2. Vessels report themselves as having "no ballast on board" (NOBOB) because they have pumped down their tanks to loss of suction. However, the vessels still contain a substantial amount of contaminated slop and sediment.
3. 16 U.S.C. §§ 4701 et seq., amendingNANPCA 90, 16 U.S.C. §§ 4701 et seq.
4. 33 U.S.C. §§ 1251 et seq. 5. Sandra B. Zellmer, Enjoy the Donut: A Regulatory Response to The White Paper on Preventing Invasion of the Great Lakes by Exotic Species, 2 TOL. J. GREAT LAKES L. SCI. & POL'Y 207 (2000).
5. Susan Strange, Cave! Hic Dragones: A Critique of Regime Analysis, 36 INTERNAL ORG. 479 (1982) ("Beware, here lie dragons." Strange argues that one should be skeptical of the substantive effects of international regimes in actually determining the policies of nation-states, an observation which applies quite well to the regime under the Great Lakes Water Quality Agreement, Great Lakes Water Quality Agreement of 1978, as amended by the Protocol of 1987, U.S.-Can., 30 U.S.T. 1383 (Nov. 22, 1978)).
6. Susan Strange, Cave! Hic Dragones: A Critique of Regime Analysis, 36 INTERNAL ORG. 479 (1982) ("Beware, here lie dragons." Strange argues that one should be skeptical of the substantive effects of international regimes in actually determining the policies of nation-states, an observation which applies quite well to the regime under the Great Lakes Water Quality Agreement, Great Lakes Water Quality Agreement of 1978, as amended by the Protocol of 1987, U.S.-Can., 30 U.S.T. 1383 (Nov. 22, 1978)).
7. See R. EDWARD GRUMBINE, ENVIRONMENTAL POLICY AND BIODIVERSITY 4 (1994) (discussion on biodiversity policy [of which exotic policy is a subcategory] concludes there is little chance of the policy process in the United States producing meaningful protection of biodiversity "without major changes in how scientists, policymakers, managers, and the general public conceive of and conduct their behavior.") A purpose of this article is, of course, to help change this conception.
8. David H. Davis, Water Diversion from the Great Lakes, 2 TOL. J. GREAT LAKES L. SCI. & POL'Y 109, 121-122 (1999) (drawing from MURREY EDELMAN, SYMBOLIC USES OF POLITICS (1970)).
9. David H. Davis, Water Diversion from the Great Lakes, 2 TOL. J. GREAT LAKES L. SCI. & POL'Y 109, 121-122 (1999) (drawing from MURREY EDELMAN, SYMBOLIC USES OF POLITICS (1970)).
10. National Invasive Species Act of 1996 (NISA 96), Pub. L. 104-332 (Oct. 26, 1996), amending the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (NANPCA 90), Pub. L. 101-646 (Nov. 29, 1990), both at 16 U.S.C. §§ 4701 et seq.
11. Discussion at Section II infra.
12. Discussion at Sections I-II infra.
13. Eric Reeves, Analysis of Laws & Policies Concerning Exotic Invasions of the Great Lakes: A Report to the Michigan Department of Environmental Quality (Mar. 15, 1999) (on file with author and available at ereeves@chat.carleton.ca) (provides a survey of pollution laws applicable to exotics).
14. NANPCA 90 §§ 1201, 1203, 16 U.S.C. §§ 4721,4723.
15. James T. Carlton, et al., The Role of Shipping in the Introduction of Nonindigenous Aquatic Organisms to the Coastal Waters of the United States (other than the Great Lakes) and an Analysis of Control Options, Shipping Study I, U.S.C.G Report No. CG-D-11-95 (Apr. 1995) (available from the National Technical Information Service, Springfield, Md.).
16. National Research Council Marine Board, Stemming the Tide: Controlling Introductions of Nonindigenous Species by Ships' Ballast Water (1996).
17. Exec. Order No. 13112, 64 Fed. Reg. 6183 (1999).
18. Exec. Order No. 11988, 42 Fed. Reg. 26949 (1977).
19. Secretary of Interior Bruce Babbitt, Address at the First National Conference on Marine Bioinvasions at Massachusetts Institute of Technology (Jan. 26, 1999) (In context: "What is our response? So far it has been pitiful. Frankly, in light of the economics and ecological devastation, we have been too timid. We restrain ourselves with voluntary guidelines, a scattered approach, and limited, unenforced codes. No longer." His next remarks addressed the 1999 executive order, pointing out it had been in the drafting process among the federal agencies since 1997.).
20. Talk of the Nation Science Friday: Invasive Species (National Public Radio broadcast, Feb. 5, 1999).
21. Id.
22. 18 U.S.C. § 42(a)(1).
23. See, James P. Clugston, Strategies for Reducing Risk from Introductions of Aquatic Organisms: The Federal Perspective, 11 FISHERIES 26, 28-29 (1986).
24. Exec. Order 11988, 42 Fed. Reg. 26949 (1977).
25. ANS Task Force, Resolution on the Elimination of the Transfer of Invasive Species Through Ships' Ballast Water, adopted at a meeting in Duluth, Minnesota (April 30, 1999).
26. NANPCA 90 § 1201, 16 U.S.C. § 4721.
27. California Assembly Bill, AB 703, to make amendments to the California Water Code, introduced by Assembly Member Lempert on Feb. 24, 1999, California 1999-2000 Session.
28. The critical section in the bill, as it left the California Assembly already amended somewhat, had provided that, "On and after January 1, 2003, the statewide general waste discharge requirements prescribed pursuant to this section shall require management of ballast water discharges that reflects the greatest degree of reduction in the discharge of exotic ballast water organisms that the board determines, based on the best available information, to be feasible through the application of the best available technologies that are economically achievable. On and after January 1, 2003, the requirements shall include a prohibition on the discharge of exotic ballast water organisms if the board determines, based upon the best available information, that the requirement is technologically available and economically achievable." AB 703 § 2, to amend California Water Code at § 13275(i) (bill amended July 6, 1999). This was actually a fairly mild and reasonable proposal.
29. The federal regime is discussed in Section II, infra. The issue of federal preemption is discussed in Section III, infra. The short answer is that the state may enact legislation on ballast water as long as it observes some important technical niceties.
30. Ballast Water Conference at the California Maritime Academy, Vallejo, California (June 16, 1999).
31. AB 703, as enacted Oct. 10, 1999, California Statutes 1999 Chapter 849, amending the California Public Resources Code, §§ 71200 et seq. The critical section, as amended Public Resources Code § 71203(b)(1), provides that, "The master, operator, or person in charge of a vessel is not required by this division to conduct a ballast water management practice, including exchange, if the master determines that the practice would threaten the safety of the vessel, its crew, or its passengers because of adverse weather, vessel design limitations, equipment failure, or any other extraordinary conditions." Amended § 71204 makes it quite clear that this exemption applies to any other "management practice" requirement.
32. Some will argue that the California act was significant because it put mandatory state requirements in place now, while the federal requirements are still voluntary. However, most of the shippers who will comply with the state mandatory requirements would have complied with the federal voluntary requirements as well, in order to stay in good stead with the Coast Guard and the public, and thus maintain their bargaining position on the high ground during the development of the federal mandatory requirements to come. In the meantime, they are of course complaining about the unreasonableness of having to deal with the potential of each state setting separate standards for international shipping even though, with the minor exception of the duplication of the reporting requirements, it adds very little. This is all part of the political game. The shippers get to complain about the unreasonableness of state restrictions. The state gets to act tough. Everybody wins politically. Yet, nothing is really being done to improve the protection of the environment.
33. AB 703, as enacted Oct. 10, 1999, California Statutes 1999 Chapter 849, amending the California Public Resources Code at § 71203(b)(2) (emphasis added).
34. See GEOFFREY M. HODGSON, ECONOMICS AND EVOLUTION: BRINGING LIFE BACK INTO ECONOMICS (1996) (His discussion is about the foundations of "economic" theory, but that theory is the basis of "rational choice analysis," also called "rational choice theory," in political science. Rational choice analysis provides a strong common link between economics and political science, and perhaps will do so for all the social sciences eventually. In a broader, albeit weaker manner, it provides an important link between social and biological science.).
35. ARISTOTLE, POLITICS 1253a (Carnes Lord trans., Univ. of Chicago Press, 1984).
36. See id. at 1253a et seq. (The root politicos, includes meanings such as "civil" and "politic." It is closely related to the concept of the polis, the Greek city-state, as the defining framework for human life according to Aristotle.).
37. ROBERT WRIGHT, THE MORAL ANIMAL: WHY WE ARE THE WAY WE ARE, THE NEW SCIENCE OF EVOLUTIONARY PSYCHOLOGY 264 (1994).
38. ADAM SMITH, THE WEALTH OF NATIONS 1.477 (Edwin Cannan, ed., Univ. of Chicago Press (1976)).
39. See GERALD T. GARDNER & PAUL C. STERN, ENVIRONMENTAL PROBLEMS AND HUMAN BEHAVIOR 183-84 (1996) (this goes under the general rubric of the "biophilia hypothesis").
40. AL GORE, EARTH IN THE BALANCE: ECOLOGY AND THE HUMAN SPIRIT 227, 216-37 (1992).
41. Id. at 223.
42. See Dr. Michael J. Donahue, A Word of Opportunity: Moving the "P" Word from Concept to Application, 12 GREAT LAKES COMM'N ADVISOR 2 (1999) (Dr. Donahue, the Executive Director of the Great Lakes Commission, and one who has put considerable effort into developing some Great Lakes policy on exotics through partnerships, points out that partnerships "shouldn't always be easy. The truly important ones require negotiation and compromise."). I would prefer to promote social and political "contracts," formed at arms length, but based on mutual respect for conflicting legitimate interests, rather than what I view as illegitimate "partnerships." However, much of our disagreement here may be simply semantic.
43. International Joint Commission & Great Lakes Fishery Commission, Exotic Species and the Shipping Industry: The Great Lakes-St. Lawrence Ecosystem at Risk 11-14 (1990).
44. Edward L. Mills, et al., Exotic Species in the Great Lakes: From Science to Policy, 3 GREAT LAKES RES. REV. 1, 1 (1998); See also, Edward L. Mills, et al., Exotic Species in the Great Lakes: A History of Biotic Crises and Anthropogenic Introductions, 19 J. GREAT LAKES RES. (1993), 1: See also, E. J. Crossman, Introduced Freshwater Fishes: A Review of the North American Perspective with Emphasis on Canada, 48 CANADIAN J. FISHERIES & AQUATIC SCI. 46-57 (1991).
45. Edward L. Mills, et al., Exotic Species in the Great Lakes: From Science to Policy, 3 GREAT LAKES RES. REV. 1, 1 (1998); See also, Edward L. Mills, et al., Exotic Species in the Great Lakes: A History of Biotic Crises and Anthropogenic Introductions, 19 J. GREAT LAKES RES. (1993), 1: See also, E. J. Crossman, Introduced Freshwater Fishes: A Review of the North American Perspective with Emphasis on Canada, 48 CANADIAN J. FISHERIES & AQUATIC SCI. 46-57 (1991).
46. Edward L. Mills, et al., Exotic Species in the Great Lakes: From Science to Policy, 3 GREAT LAKES RES. REV. 1, 1 (1998); See also, Edward L. Mills, et al., Exotic Species in the Great Lakes: A History of Biotic Crises and Anthropogenic Introductions, 19 J. GREAT LAKES RES. (1993), 1: See also, E. J. Crossman, Introduced Freshwater Fishes: A Review of the North American Perspective with Emphasis on Canada, 48 CANADIAN J. FISHERIES & AQUATIC SCI. 46-57 (1991).
47. Mills et al., From Science to Policy, supra note 43 at 1.
48. Peromyzon marinus, a highly predacious parasitic primitive anadromous fish, resembling an eel, from the Atlantic seaboard, perhaps also native to Lake Ontario, which was apparently introduced through the canal systems in the 1830s.
49. Dreissena polymorpha, a highly competitive freshwater bivalve mollusk, originally from the Black and Caspian seas which was apparently introduced from Europe through the ballast water of oceanic shipping sometime before 1988.
50. Gymnocephalus cernuus, a garbage fish from Europe and Asia with a high potential to displace native species, which was apparently introduced through the ballast water of oceanic ships sometime before 1986.
51. Lythrum salicaria, a robust aquatic weed which squeezes out other plants and animals, first recorded hi 1869, apparently introduced by railroads or canals.
52. Alosa pseudoharengus, a garbage fish, prone to cataclysmic blooms and dieoffs, but with some use as feed stock, recorded in 1873. Like the lamprey, this may have been native to Lake Ontario, but apparently was introduced from the Atlantic by canals.
53. Aeromonas salmonicida, a bacterium pathogenic to fish, introduced to the Great Lakes, perhaps from Germany, by an unknown vector, sometime before 1902.
54. Myriophyllum spicatum, a robust aquatic weed which squeezes out other plants and animals, and also alters water temperature, spread from the Atlantic sometime before 1952, apparently by either aquarium release or transport in vessels.
55. A protozoan fish parasite, discovered in 1960, apparently introduced with its host, rainbow smelt, which was intentionally stocked in 1912.
56. Mills, et al., A History, supra note 43, at Figure 6 on 43; See also, E. J. Crossman, supra note 43 (overall history of invasions of the Great Lakes).
57. Mills, et al., A History, supra note 43, at Figure 6 on 43; See also, E. J. Crossman, supra note 43 (overall history of invasions of the Great Lakes).
58. See Mills, et al., A History, supra note 43; See also, Mills, et al., From Science to Policy, supra note 43.
59. See Mills, et al., A History, supra note 43; See also, Mills, et al., From Science to Policy, supra note 43.
60. See Mills, at al., A History, supra note 43, at 43.
61. Eric Reeves, Exotic Policy: An IJC White Paper on Policies for the Prevention of the Invasion of the Great Lakes by Exotic Organisms 24-26 (July 15, 1999) (on file with author and available at ereeves@chat.carleton.ca.).
62. MT = metric tonne, roughly one cubic meter of water, or 264 U.S. gallons.
63. "Cosmopolitan," which many of us think of as a good thing when referring to human societies which are more open and varied because of global influences, is an implicitly pejorative term of art in biology for the contamination of a local ecosystem to the point where it has lost its unique character. It also refers, without any positive or negative implication, to a species which is wide-spread around the world from either natural or anthropomorphic causes. In addition, not everyone is in favor of human cosmopolitanism. Especially when framed lately as "globalization," or when expressed by the more esoteric philosophical resistance to "modernity," there is a sense among many that we are losing precious diversity among human communities as well. To the Native Americans, for example, the worst exotic invasion of all time was the Europeans. Thus, in broad terms, one can look upon the problem of exotic organisms and loss of ecosystem diversity as a part of a larger problem of global human civilization.
64. Brian Morton, The Aquatic Nuisance Species Problem: A Global Perspective and Review, in FRANK M. D'ITRI, ED., ZEBRA MUSSELS AND AQUATIC NUISANCE SPECIES 1, 16 (1997).
65. Mills, et al., From Science to Policy, supra note 43 at Figure 2 on 4.
66. Id. at Figure 1 on 2.
67. See ALEXANDER WOODCOCK & MONTE DAVIS, CATASTROPHE THEORY (1978); See also ROBERT L. HEILBRONER, THE WORLDLY PHILOSOPHERS: THE LIVES, TIMES AND IDEAS OF THE GREAT ECONOMIC THINKERS 263 (1986) (Indeed, in both environmental studies and economics [as well as other fields] one usually expects to see the classic "bell curve" of distributions or "S-curves" of expansion and stabilization, both due to natural limits to growth and negative feedback mechanisms - systemic tendencies toward equilibrium. But that does not give one any basis for predicting ahead of time where that decline or point of inflection will occur. "In the long run, it will all work out," economists were once found of saying, and the paleontologist Stephen J. Gould certainly agrees with that. But, as the economist John Maynard Keynes pointed out, and Gould emphasizes today with regard to environmental recovery, "In the long run, we are all dead."); See also, STEPHEN JAY GOULD, EIGHT LITTLE PIGGIES: REFLECTIONS IN NATURAL HISTORY 50-51 (1993) (Gould makes the point about the likelihood of the long-term recovery of the planet Earth, and the irrelevance of that to the fate of the human species. Moreover, the response to a disturbance, the way that the system finds a new equilibrium, can be decidedly "catastrophic" in both a mathematical and common sense.).
68. See ALEXANDER WOODCOCK & MONTE DAVIS, CATASTROPHE THEORY (1978); See also ROBERT L. HEILBRONER, THE WORLDLY PHILOSOPHERS: THE LIVES, TIMES AND IDEAS OF THE GREAT ECONOMIC THINKERS 263 (1986) (Indeed, in both environmental studies and economics [as well as other fields] one usually expects to see the classic "bell curve" of distributions or "S-curves" of expansion and stabilization, both due to natural limits to growth and negative feedback mechanisms - systemic tendencies toward equilibrium. But that does not give one any basis for predicting ahead of time where that decline or point of inflection will occur. "In the long run, it will all work out," economists were once found of saying, and the paleontologist Stephen J. Gould certainly agrees with that. But, as the economist John Maynard Keynes pointed out, and Gould emphasizes today with regard to environmental recovery, "In the long run, we are all dead."); See also, STEPHEN JAY GOULD, EIGHT LITTLE PIGGIES: REFLECTIONS IN NATURAL HISTORY 50-51 (1993) (Gould makes the point about the likelihood of the long-term recovery of the planet Earth, and the irrelevance of that to the fate of the human species. Moreover, the response to a disturbance, the way that the system finds a new equilibrium, can be decidedly "catastrophic" in both a mathematical and common sense.).
69. See ALEXANDER WOODCOCK & MONTE DAVIS, CATASTROPHE THEORY (1978); See also ROBERT L. HEILBRONER, THE WORLDLY PHILOSOPHERS: THE LIVES, TIMES AND IDEAS OF THE GREAT ECONOMIC THINKERS 263 (1986) (Indeed, in both environmental studies and economics [as well as other fields] one usually expects to see the classic "bell curve" of distributions or "S-curves" of expansion and stabilization, both due to natural limits to growth and negative feedback mechanisms - systemic tendencies toward equilibrium. But that does not give one any basis for predicting ahead of time where that decline or point of inflection will occur. "In the long run, it will all work out," economists were once found of saying, and the paleontologist Stephen J. Gould certainly agrees with that. But, as the economist John Maynard Keynes pointed out, and Gould emphasizes today with regard to environmental recovery, "In the long run, we are all dead."); See also, STEPHEN JAY GOULD, EIGHT LITTLE PIGGIES: REFLECTIONS IN NATURAL HISTORY 50-51 (1993) (Gould makes the point about the likelihood of the long-term recovery of the planet Earth, and the irrelevance of that to the fate of the human species. Moreover, the response to a disturbance, the way that the system finds a new equilibrium, can be decidedly "catastrophic" in both a mathematical and common sense.).
70. Carlton, et al., supra note 14 at 102, Box 5-2 (The U.S. Coast Guard "Shipping Study" on ballast water, conducted under mandate from NANPCA 90 and published in 1995, identified six various creatures, both salt and freshwater, around the ports of the world, which are prime candidates for future invasion of North America via ballast water precisely because they have already demonstrated an ability to invade other ecosystems.).
71. Anthony Ricciardi & Joseph B. Rasmussen, Predicting the Identity and Impact of Future Biological Invaders: A Priority for Aquatic Resource Management, 55 CANADIAN J. FISHERIES & AQUATIC SCI. 1759-65 (1998).
72. See Linda D. Mortsch & Frank H. Quinn, Adaptations: Newsletter of the Binational Great Lakes-St. Lawrence Basin Project (visited Feb. 19, 2000) .
73. 33 C.F.R. §§ 151.1500 et seq.
74. See Daniel Gauthier & Deborah A. Steel, A Synopsis of the Situation Regarding the Introduction of Nonindigenous Species by Ship-Transported Ballast Water in Canada and Selected Countries, Fisheries and Aquatic Sciences Report 2380 § 3.2 at 7 (1996) (Fisheries and Aquatic Sciences, Mont-Joli, Que.).
75. Alfred M. Beeton, et al., Ballast Exchange Study: Consideration of Back-Up Exchange Zones and Environmental Effects of Ballast Exchange and Ballast Release, Report to National Sea Grant, NOAA, and EPA at v (1998) (on file with Cooperative Institute for Limnology and Ecosystems Research, Ann Arbor, Mich.) (the report indicates, for example, that exchange may be appropriate as close as 100 kilometers [fifty-four nautical miles] off the approach to Boston).
76. A. Locke et al., Effectiveness of Mid-Ocean Exchange in Controlling Freshwater and Coastal Zooplankton in Ballast Water, Fisheries and Aquatic Sciences Report 1822 at 26 (1991) (on file at Great Lakes Laboratory, Burlington, Ont.).
77. 63 Fed. Reg. 17782, 17785 (1998). I conducted this examination of readings, based on a sample of most of the vessels boarded during the 1997 navigation season, while the staff officer responsible for the program at the Ninth U.S. Coast Guard District. It was cited by U.S. Coast Guard Headquarters as evidence that "salinity cannot be relied upon alone as an indicator of an effective exchange, and should only be one factor in providing evidence that a performance standard has been met" as part of a notice of proposed rulemaking which would have established a performance standard of 90% exchange by volume, based on all available evidence, in place of the 30 ppt standard; See 64 Fed. Reg. 26672, 26677-8 (1999) Unfortunately, the U.S. Coast Guard retreated from this position under pressure from the shipping industry in the following rulemaking action, but is still studying the problem.
78. The sea lamprey (Petromyzon marinus) is an anadromous species originally living in the Atlantic Ocean and spawning in the Northeastern rivers. It is not a ballast introduction, but I cite it here as a good example of the variety of life in the ocean.
79. LAURI GARRETT, THE COMING PLAGUE: NEWLY EMERGING DISEASES IN A WORLD OUT OF BALANCE 564 (1994) (Cholera, caused by the bacterium genus Vibrio, is a particularly instructive example of the adaptability of simple organisms. It has various species and strains, some of which are not pathogenic to humans, some of which thrive more in salt or fresh water. But some of the pathogenic forms can certainly make the transition. A 1961 pandemic of cholera in Peru was caused by the El Tor strain, Vibrio choleras 01, which "was particularly well equipped, genetically, for long-term survival inside algae.⋯" Also, "The El Tor strain was capable of shrinking itself 300-fold when plunged suddenly into cold salt water. In that form it was the size of a large virus, very difficult to detect.⋯add nitrogen, raise the temperature, decrease the salinity, and bingo! instant cholera." It is believed that the El Toro strain infected Peru via water carried by a Chinese freighter from the Asian seas.).
80. Carlton, et al., supra note 14 at 161; See also Australian Quarantine and Inspection Service (AQIS), Ballast Water Treatment for the Removal of Marine Organisms, AQIS Ballast Water Research Series Report No. 1 8-9 (June 1993); See also Locke, et al., supra note 69, at 39.
81. Carlton, et al., supra note 14 at 161; See also Australian Quarantine and Inspection Service (AQIS), Ballast Water Treatment for the Removal of Marine Organisms, AQIS Ballast Water Research Series Report No. 1 8-9 (June 1993); See also Locke, et al., supra note 69, at 39.
82. Carlton, et al., supra note 14 at 161; See also Australian Quarantine and Inspection Service (AQIS), Ballast Water Treatment for the Removal of Marine Organisms, AQIS Ballast Water Research Series Report No. 1 8-9 (June 1993); See also Locke, et al., supra note 69, at 39.
83. Letter from James T. Carlton, Williams College Maritime Studies in Mystic Seaport, to Jonathan Burton, U.S. Coast Headquarters, Washington, D.C. (Feb. 12, 1993) (on file with author).
84. Locke, et al., supra note 69, at 39.
85. Carlton, et al., supra note 14, at 153; See also Beeton, et al., supra note 68, at ii ("Experimental studies conducted on the survival of oceanic organisms under lowered salinity regimes indicate the effectiveness of this barrier. These experiments suggest that few organisms of oceanic origin in exchanged ballast water are likely to survive upon release to low salinity coastal habitats.").
86. The number of "problem vessels," relative to the number of vessels entering with ballast, declined from 7.4% to 1% over the five years from 1993 to 1997, and all these were required to take remedial action. In addition, the ratio between the number of vessels entering with ballast and retaining their water throughout the voyage and those entering with ballast after conducting an exchange at sea declined, from almost an equal ratio (.933) in 1993 to about one in eighteen (.057) in 1997, thus indicating that vessel operators are getting in the habit of conducting an exchange instead of resorting to retention. I collected these figures while Chief of the U.S. Coast Guard Ninth District Marine Safety Analysis and Policy Branch, Cleveland, Ohio.
87. Robert Tagg, Herbert Engineering Corp., Presentation to a Conference on Ballast Water at the California Maritime Academy, Vallejo, California (June 16, 1999).
88. Guidelines for the Control and Management of Ship's Ballast Water to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens, International Maritime Organization Res. A.868(20), app. 2, § 1.3.2 (Nov. 27, 1997).
89. Tagg, supra note 78.
90. In fact, almost all large commercial vessel ballast piping systems have a set of multiple main pipes, either running down the centerline of the vessel or in parallel port and starboard, connected to two or more main pumps in the flow between the internal system and the sea chests for taking on and discharging water, with lots of valves and controls for moving water in different directions. There is considerable independent pumping capacity and piping already built in. There just are not any outflow pipe ends put in at the tops of the tanks.
91. See ROBERT TAGGART, ED., SHIP DESIGN AND CONSTRUCTION (1980) (demonstrates the complexity of the internal structure of vessels, which goes far beyond this basic discussion of some of the main points of ballast tanks).
92. National Research Council Marine Board, supra note 15, at 106 (The Marine Board of the National Research Council recommends consideration of "structural and piping designs that trap less sediment and are easier to clean" at the time of "construction or major alteration to existing vessels.").
93. Submission to IMO MEPC Ballast Water Working Group by the representatives of Brazil, Harmful Aquatic Organisms in Ballast Water: Results of Ballast Water Exchange Tests Using the Dilution Method, MEPC Document 40/10/4 (July 18, 1997).
94. INTERNATIONAL ASSOCIATION OF CLASSIFICATION SOCIETIES, BULK CARRIERS: HANDLE WITH CARE 3 (circa 1998).
95. Alex Bilney, International Chamber of Shipping, U.S. Coast Guard NPRM Docket U.S.C.G.-98-3423, Comment #54 at 2 (Aug. 6, 1998) ("Complete exchange of ballast water in mid-ocean as a regular practice in an operation that was not foreseen, nor designed for in any exiting ships.").
96. Smithsonian Environmental Research Center (SERC) Marine Invasions Research Laboratory, Chesapeake Bay Research Overview Chesapeake Bay Research Overview (visited July 15, 1999) (Recent studies of ballast in U.S. coastal trade indicate that, "Domestic ballast water may have actually originated from a foreign port in a ship that picks up partial loads in each of several U.S. ports before transiting back to a foreign port. Thus, even ships defined as domestic traffic may be carrying large quantities of foreign ballast and NIS.").
97. Locke, et al., supra note 69, at 43.
98. 33 U.S.C. § 4702(1).
99. Id.
100. Id. at 34.
101. G.R. Rigby, et al., The Transfer and Treatment of Shipping Ballast Water to Reduce the Dispersal of Toxic Marine Dinoflagellates, in THEODORE J. SMAYDA & YUZURU SHIMIZU, ED., TOXIC PHYTOPLANKTON BLOOMS IN THE SEA: PROCEEDINGS OF THE FIFTH INTERNATIONAL CONFERENCE ON TOXIC MARINE PHYTOPLANKTON 169 (1993).
102. Id. at 173.
103. Aquatic Sciences, Examination of Aquatic Nuisance Species Introductions to the Great Lakes through Commercial Shipping Ballast Water and Assessment of Control Options, Phase II Final Report, ASI Project E9225/E9285 (Aug. 1996) (The organisms included Mollusca (mussels), Bivalia (mussels), Rotifera, Copepoda, Cladocer (water fleas), Diptera (flies), Oligocha (worms), Polychae (worms), Nematoda (worms), E. coli, V. alginoliticus, V. fluvialis, A. hydrophila, Pseudemonas sp, Providencia rettgeri, Ps. Aeruginosa, A. sobria, and A. caviae.).
104. Margaret Dochoda, Biologist, Great Lakes Fishery Commission (These were (1) the oligochaete, Ripistes parasita, in 1980, (2) the oligochaete, Phallodrilus aquaedulcis, in 1983, (3) the spiny water flea, Bythotrephes cederstroemi, in 1984, (4) the European ruffe, Gymnocephalus cernuus, in 1986, (5) the four-spine stickleback, Apeltes quadracus, in 1986, and (6) the zebra mussel, Dreissena polymorpha, in 1988.).
105. Id. (These were (1) the tubenose goby, Proterorhinus marmoratus, in 1990, (2) the round goby, Neopobius melanostomus, in 1990, (3) the quagga mussel, Dreissena bugensis, in 1991 (4) the NZ mud snail, Potamopyrgus antipodarum, in 1991, (5) the amphipod Echinogammarus ischnus, in 1995, and. (6) the cladoceran water flea, Ceropagis pengoi, in 1998.).
106. Eriocheir sinensis.
107. Platichthys flessus.
108. Letter from J.H. Leach, Research Scientist, Ontario Ministry of Natural Resources Lake Erie Fisheries Station, to James Carlton, Maritime Studies Program, William College - Mystic Seaport (May 18, 1994) (on file with author).
109. Letter from John M. Casselman, Senior Scientist, Ontario Ministry of Natural Resources Research, Science, and Technology Branch, to P. Furlong, Lake Superior Management Unit (Dec. 9, 1994) (on file with author).
110. 16 U.S.C. §§ 4701 et seq.
111. 16 U.S.C. §§ 4701 et seq., as amended by 16 U.S.C. §§ 4701 et seq.
112. The final bill was H.R. 4283, substituting for similar bills introduced as H.R. 3217 (Congressman LaTourette of Ohio, Republican) and S. 1660 (Senator Glenn of Ohio, Democrat), both of which had numerous co-sponsors from both parties, with amendments by the managers on the floor of the House (therefore never discussed in either hearings or committee reports) before final passage. The first version voted on, as H.R. 3217, which had already been amended to meet objections in the Senate, was passed in the House of Representatives by unanimous consent at 142 CONG. REC. H10918-H10927 on September 24, 1996. The Senate objections, mainly objections from the shipping industry, were not satisfied. Without consideration in the Senate, it was brought back to the floor of the House as H.R. 4283, with further amendment, and passed by unanimous consent at 142 CONG. REC. H12147-12152 on September 28, 1996. In that version it was brought to the Senate and passed by unanimous consent at 142 CONG. REC. S12398-12401 on October 3, 1996. It was signed by the President on October 26, 1996; See also Gloria Cataneo Tosi, American Maritime Congress, U.S. Coast Guard NPRM Docket U.S.C.G-98-3423, Comment #57 at 5 of document, 3 of AMC enclosure (Aug. 7, 1998) (Comments from the American Maritime Congress on the proposed nationwide guidelines relate the effects of industry lobbying to have the special safety exemption inserted at the last minute.).
113. Pub. L. 91-224 (Apr. 3, 1970), with legislative history in House Public Works Committee, House Report No. 91-127, HR 4148 (Mar. 25, 1969), at 1970 U.S.C.C.A.A.N. 2691, 2692. Although the original Federal Water Pollution Control Act was actually enacted in 1948 (62 Stat. 1155, June 30, 1948), and often amended after that, the 1970 amendments were significant, albeit inadequate, in adding "new sections on liability for cleaning up oil discharges, discharge of hazardous substances, discharge of sewage from vessels [and] demonstration projects for cleaning up pollution in the Great Lakes.⋯" Senate Public Works Committee, Senate Report No. 92-414, S 2770 [Public Law 92-500] (Oct. 28, 1971), at 1972 U.S.C.C.A.A.N. 3668, 3670, which reviews the history of federal water pollution legislation from 1948 to 1972 at 3669-3670. One of the most important provisions was the enactment of the principle of strict liability for the costs of oil spills, within low limits, whereas the previous legislation on oil spills applied only to spills which were grossly negligent or willful. House Public Works Committee (1969), id. at 1970 U.S.C.C.A.A.N. 2692. We have not yet begun to adopt that concept for exotics.
114. E.P.A. v. Cal., 426 U.S. 200, 203 (1976) (quoting Senate Public Works Committee, Senate Report No. 92-414, S. 2770 [Public Law 92-500] (Oct. 28, 1971), at 1972 U.S.C.C.A.A.N. 3674).
115. 33 U.S.C. §§ 1251 et seq. (known commonly as the Clean Water Act as well as the Federal Water Pollution Control Act); See also WILLIAM H. RODGERS, JR., ENVIRONMENTAL LAW 247 (1994) ("Water pollution law today [in the U.S.] begins with⋯the Federal Water Pollution Control Act Amendments of 1972⋯ "For point sources, costs of achieving but the first levels of technological controls were enormous: $10 billion for municipalities, $36 billion for industry⋯" Although this was a system for permitting pollution, it was consciously designed to squeeze down the amount of pollution permitted over the years, with the unrealistic goal of near-virtual elimination by 1985. One of the most important features of the permitting system was that it was designed to be "technology-forcing." RODGERS, infra at 53; See also Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601 et seq. (where the regime expanded the principle of strict liability for the cost of all spills; we have not yet begun to adopt that concept for exotics).
116. See THEODORA E. COLBORN, ET AL., GREAT LAKES: GREAT LEGACY? 3 (1990).
117. CERCLA, 42 U.S.C. §§ 9601 et seq.; See also H.R. 7020, H.R. DOC. NO. 96-1016 at 18-19 (1980) (the waste sites are discussed in the House Interstate and Foreign Commerce report).
118. Pub. L. 101-380 (Aug. 18, 1990), amending the Clean Water Act (Federal Water Pollution Control Act), 33 U.S.C. §§ 1251 et seq., and other places; See RODGERS, supra note 106, at 387 (description of "operational and technological controls" imposed on the shipping industry by OPA 90).
119. RODGERS, supra note 106, at § 4.9, Table 4-13 376 (using information from Golob's Oil Pollution Bulletin).
120. EVERETT C. HUNT & BORIS S. BUTMAN, MARINE ENGINEERING AND ECONOMICS COST ANALYSIS 1-6 (1995) (the costs for dealing with exotics are less by at least an order of magnitude); See Reeves, supra note 56, at 45-51.
121. EVERETT C. HUNT & BORIS S. BUTMAN, MARINE ENGINEERING AND ECONOMICS COST ANALYSIS 1-6 (1995) (the costs for dealing with exotics are less by at least an order of magnitude); See Reeves, supra note 56, at 45-51.
122. See Glenn Zorpette, Mussel Mayhem Continued: Apparent Benefits of the Zebra Mussel Plague are Anything But, 275 SCI. AM. 22-23 (1996); See also, Section I, infra.
123. Warner Chabot & Michael Lozeau, Center for Marine Conservation, U.S. Coast Guard NPRM Docket U.S.C.G-98-3423, Comment #27 at 1 (June 8, 1998) (Environmental groups commenting on the proposed national guidelines under NISA generally agree that "in light of the significant problems posed by non-native species, the proposed regulations are inadequate for managing the threat of these species for several reasons.").
124. 16 U.S.C. § 4711(a), (b).
125. 58 Fed. Reg. 18334 (Apr. 8, 1993), adding 33 C.F.R. pt. 151, subpt. C, §§ 151.1500 et seq.
126. 16 U.S.C. § 4711(c)(1).
127. 16 U.S.C. § 4711(f)(1).
128. 16 U.S.C. § 4711(e)(1), (f)(1).
129. 16 U.S.C. § 4711(d), (f)(1).
130. 16 U.S.C. § 4711(e)(3).
131. Congressman Steve LaTourette was a Republican from the 19th District of Ohio, a diverse district on Lake Erie near Cleveland, Ohio, and an area sensitive to the impacts of exotics on the western basin of Lake Eire.
132. 142 CONG. REC. H10925 (Sept. 24, 1996).
133. 63 Fed. Reg. 17782 (Apr. 10, 1998).
134. 64 Fed. Reg. 26672 (May 17, 1999) (interim rule with request for comments); 63 Fed. Reg. 32780 (June 16, 1998) (in response to several requests from the shipping industry [along with strong objections to the guidelines] the Coast Guard had extended the comment period on the proposed guidelines until August 8, 1998).
135. 63 Fed. Reg. 17782, 17785, 17789 (Apr. 10, 1998) (NPRM to amend 33 C.F.R. pt. 151; preamble discussion; definition [proposed 33 C.F.R. § 151.1504] and substantive requirement, with evidentiary presumptions [proposed 33 C.F.R. § 151.1508(a)(1)]).
136. 64 Fed. Reg. 26672 (May 17, 1999) (interim rule with requests for comments).
137. Bilney, supra note 86, at 2.
138. Id. at 2.
139. Id. at 3.
140. Tosi, supra note 103, at 4-5; Kathy J. Metcalf, Chamber of Shipping of America, U.S. Coast Guard NPRM Docket U.S.C.G-98-3423, Comment #60 at 3 (Aug. 6, 1998) (Similarly, the Chamber of Shipping of America argues that the master's decision "if made in good faith, should be absolute and not subject to challenge by the port state authorities," but goes on to say, "The Chamber, however, recognizes the need for some objective criteria which provides guidance to the U.S. Coast Guard and the regulated community as to what constitutes a 'good faith' decision.⋯").
141. Tosi, supra note 103, at 7.
142. See RODGERS, supra note 106, at 386-87 (response plans required under OPA 90 and CWA).
143. Bilney, supra note 86, at 4 (The International Chamber of Shipping argues that "the emotive word 'pollution' should not be used."); German Federation of Shipowners (Verband Deutscher Reeder), U.S. Coast Guard NPRM Docket U.S.C.G-98-3423, Comment #33 at 3 (June 12, 1998) (The comment from the German Federation of Shipowners starts by arguing about the philosophical concept. "In the sense of the term 'pollution' the matter is not really pollution. Spread of aquatic nuisance species is a naturally occurring phenomenon. Marine creatures are free to move around the globe anyway, and nature will always create checks and balances in the medium and long term." The German Federation of Shipowners goes on, however, to say that an exchange of "90% can surely be accepted as a practical target.").
144. 142 CONG. REC. H10918-H10927 (Sept. 24, 1996); 142 CONG. REC. H12147-12152 (Sept. 28, 1996); 142 CONG. REC. S12398-12401 (Oct. 3, 1996).
145. 142 CONG. REC. H10918-H10927 (Sept. 24, 1996); 142 CONG. REC. H12147-12152 (Sept. 28, 1996); 142 CONG. REC. S12398-12401 (Oct. 3, 1996).
146. 142 CONG. REC. H10918-H10927 (Sept. 24, 1996); 142 CONG. REC. H12147-12152 (Sept. 28, 1996); 142 CONG. REC. S12398-12401 (Oct. 3, 1996).
147. NANPCA 90 § 1101(b)(2)(G)-(H).
148. NANPCA 90 § 1101(b)(2)(B)(ii),(iii).
149. 33 C.F.R. § 151.1514.
150. Beeton, et al., supra note 68, at v (Such advice has been provided in a report to the ANS Task Force. The report indicates, for example, that exchange may be appropriate as close as 100 kilometers [fifty-four nautical miles] off the approach to Boston.).
151. M. Eric Reeves, Techniques for the Protection of the Great Lakes from Infection by Exotic Organisms in Ballast Water, in FRANK M. D'ITRI, ED., ZEBRA MUSSELS AND AQUATIC NUISANCE SPECIES 283, 288-89 table 1, notes a-e (1997) (I participated in the resolution of most of those cases as the program staff officer in the Ninth Coast Guard District in Cleveland, in consultation with the operational commander in Buffalo. I report the results of some of these "problem vessel" cases. One vessel, early on before my tenure, was allowed to salt up the tanks to meet the 30 ppt regulatory standard. We quickly declared that to be an insufficient treatment option for any future case. Two other vessels chlorinated their tanks, subject to approval of the local authorities, in Canada, where they discharged the residual water. Follow-up testing confirmed a good kill. One vessel, a chemical carrier, had the unusual capacity to shift the water to a heated cargo tank and cook it. They got it above 60° C [140° F], in accordance with scientific advice. One vessel which had chosen its own alternate exchange site without prior approval was allowed to proceed after biological testing confirmed the effectiveness of that exchange. In addition, one vessel, which had lied about conducting an exchange, was forbidden to discharge, subject to a threat of criminal prosecution brought personally home to the master by a joint boarding of Canadian and U.S. marine safety officers in Canadian territory, backed up by a U.S. attorney in New York ready and willing to indict if the vessel failed the outgoing inspection. It passed. But the Canadians also levied a criminal fine for the false report on their exchange during entry into the Gulf of St. Lawrence. These cases illustrate both the seriousness of the Coast Guard's effort to enforce the regime and the creativity with which individual cases were worked out in negotiations with the industry. We may, however, have succeeded too well in convincing the industry they were going to dislike an expansion of the Great Lakes regime to the United States as a whole.).
152. 142 CONG. REC. H10920 (Sept. 24, 1996).
153. 142 CONG. REC. H10923-H10924 (Sept. 24, 1996).
154. 142 CONG. REC. H12149 (Sept. 28, 1996) (codified as amended at 16 U.S.C. § 4711(k)).
155. 142 CONG. REC. H12146 (Sept. 28, 1996) (statement by Congressman Oberstar).
156. 142 CONG. REC. H12146 (Sept. 28, 1996) (There were a number of amendments, and it is not clear from the few comments in the record which ones Congressmen Oberstar and LaTourette were most concerned about when making these remarks. I would submit, however, that the special safety exemption was by far the one most significant in terms of undermining the fundamental purposes of the legislation.).
157. The International Maritime Organization (IMO) is a "specialized agency" of the United Nations, originally established as the "Inter-Governmental Maritime Consultation Organization" in 1948, a forum for consultation on matters of safety and prevention of pollution in shipping, and the forum in which most of the major international conventions on maritime safety and environmental protection are negotiated.
158. Resolution A.774(18) of the IMO 20th General Assembly at London (Nov. 4, 1993) (These were developed by a committee of IMO, the Marine Environment Protection Committee [MEPC], and a Ballast Water Working Group [BWWG] within that committee. The three nations with the primary interest in the subject, the United States, Canada, and Australia, have had the most active representation in the BWWG.).
159. Resolution A.868(20), IMO 20th General Assembly at London (Nov. 27, 1997).
160. Id. at app. 2.
161. Id. at, app. 2, § 1.3.2 (The "flow-through method" is a means of changing the water while maintaining a constant, or near constant, load of water in the tank, thus avoiding any of the problems with stability and hull stress created by the pump-down and pump-up method of exchange. However, absent the retrofitting of new pipe ends, the only way that most existing vessels can accomplish a flow-through exchange is by pumping the water upward and out through the hatches or vent pipes on the deck. This is not as efficient, and may also create safety problems through either over-pressurization of the tanks or free water on the decks. A much more effective, and completely safe, flow-through exchange could be accomplished by simply adding one new pipe end to the top of each tank and flushing the water out the bottom via the existing pipes.).
162. The International Convention for the Prevention of Pollution from Ships, amended by the Protocol of 1978, London (Nov. 2, 1973) (These are ratified treaties, with Senate treaty numbers, 92-2 and 96-1, but they have not yet been entered in the Department of State's official listing in Treaties and International Agreements [T.I.A.S.]. They are unofficially reported in full, with annotations, at THE MAHARAJ NAGENDRA SINGH, 3 INTERNATIONAL MARITIME LAW CONVENTIONS 2272 et seq., 2414 et seq. (1983) and are also available [by mail order purchase] from IMO in London at www.imo.org. They are collectively called "MARPOL 73/78" or just "MARPOL," [although this is not actually an acronym for the name of the convention], with various "annexes" on specific types of pollution: Annex I on oil, Annex II on noxious liquid substances in bulk, Annex III on harmful substances in packages, containers, or tanks, Annex IV on sewage, and Annex V on garbage. Each of these amount to an independent convention. For example, the annex on garbage, an "optional annex" which has been adopted by the United States, but not by Canada, is "MARPOL Annex V." The United States has adopted all annexes, but Annex IV on sewage has not yet gained the required adoption to come into force. Most of the major maritime nations, including the United States and Canada, are signatories to MARPOL and most of its annexes.).
163. The International Convention for the Prevention of Pollution from Ships, amended by the Protocol of 1978, London (Nov. 2, 1973) (These are ratified treaties, with Senate treaty numbers, 92-2 and 96-1, but they have not yet been entered in the Department of State's official listing in Treaties and International Agreements [T.I.A.S.]. They are unofficially reported in full, with annotations, at THE MAHARAJ NAGENDRA SINGH, 3 INTERNATIONAL MARITIME LAW CONVENTIONS 2272 et seq., 2414 et seq. (1983) and are also available [by mail order purchase] from IMO in London at www.imo.org. They are collectively called "MARPOL 73/78" or just "MARPOL," [although this is not actually an acronym for the name of the convention], with various "annexes" on specific types of pollution: Annex I on oil, Annex II on noxious liquid substances in bulk, Annex III on harmful substances in packages, containers, or tanks, Annex IV on sewage, and Annex V on garbage. Each of these amount to an independent convention. For example, the annex on garbage, an "optional annex" which has been adopted by the United States, but not by Canada, is "MARPOL Annex V." The United States has adopted all annexes, but Annex IV on sewage has not yet gained the required adoption to come into force. Most of the major maritime nations, including the United States and Canada, are signatories to MARPOL and most of its annexes.).
164. Any new annex on ballast water would be an "optional annex." The rules of the basic MARPOL convention provide that an optional annex comes into force when not less than fifteen states having a combined merchant fleet making up 50% of the world's tonnage assent to it, but individual nations can opt out. See MARPOL 73 at art. 14-15.
165. MEPC, "Harmful Aquatic Organisms in Ballast Water," Report of the Working Group on Ballast Water convened during MEPC 42, MEPC 43/4 (January 5, 1999), Annex 1, "Proposed Amendments and Comments on the Draft Regulations for the Control and Management of Ship's Ballast Water and Sediments to Minimize the Transfer of Harmful Aquatic Organisms and Pathogens (in the form of an Annex to MARPOL 73/78)," Regulation 4.5.
166. MEPC, "Harmful Aquatic Organisms in Ballast Water," Comments on the Report of the Working Group on Ballast Water convened during MEPC 42 (MEPC 43/4), MEPC 43/4/4, submitted by the United States (April 1, 1999), Annex 2, "International Convention/Annex for the Management of Ship's Ballast Water and Sediments to Prevent or Minimize the Transfer of Harmful Aquatic Organisms and Pathogens," at 5, insertion 2(bis) note.
167. Id. at 2(bis)-(2)(ter), 4(bis)(1). The U.S. counter-proposal is highly ambiguous. It says that the ship which cannot safely exchange shall "only discharge the minimum amount of ballast water essential for the ship's operation to the extent permitted and in accordance with the requirements of the Party in whose waters the discharge takes place," which might be read to allow a nation to impose other technological options, but that interpretation is not consistent with other U.S. language saying that "A port State(s) may⋯allow a ballast management techniques as an alternative to another technique provided for in this Convention.⋯" (Emphasis added.) The U.S. language is certainly superior to the MEPC draft, in that it takes out the outright prohibition against stricter national standards. However, it does so in a way which creates real potential for litigation over the issue, particularly if a subordinate jurisdiction (U.S. state or Canadian province) attempts stricter regulation.
168. JOHN E. NOWAK, ET AL., HANDBOOK ON CONSTITUTIONAL LAW 129 (1978) ("The history of the commerce clause adjudication is, in a very real sense, the history of the concepts of federalism. ⋯").
169. U.S. CONST., art. I, § 8, cl. 3; See also Maine v. Taylor, 477 U.S. 131, 137 (1986) ("Although the Clause⋯speaks in terms of powers bestowed upon Congress, the [Supreme] Court long has recognized that it also limits the power of the States to erect barriers against interstate trade.").
170. Maine, 477 U.S. at 151.
171. THE FEDERALIST NO. 7, at 29 (Alexander Hamilton) (Garry Wills, ed., 1982).
172. Id.
173. Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824) (Gibbons was the first preemption case. Chief Justice John Marshall, a leading architect of the new system of government, decided that a state could not grant a monopoly to a steamboat company because it conflicted with federal licensing of ships.); See also NOWAK, ET AL., supra note 155, at 134 (Gibbons "ranks as one the most important in history," at least in terms of American constitutional law).
174. The Daniel Ball, 77 U.S. (21 Wall) 557 (1875) (This case concerned a vessel by that name operating on the Grand River in the State of Michigan, and decided a fundamental question about the reach of federal admiralty jurisdiction. It also introduced, in the century before the building of the Seaway, the concept that the Great Lakes and its navigable rivers are considered part of international maritime commerce.).
175. Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 442 (1959).
176. 33 U.S.C. § 1342.
177. 33 U.S.C. § 2717(a).
178. Maine, 477 U.S. at 139 (commenting in dicta that the Lacey Act did not sufficiently indicate Congressional intent to authorize state regulation of commerce in fish, but holding that the state did have such authority under general principles and traditional police power).
179. Bacchus Imports Ltd. v. Dias, 468 U.S. 263, 270 (1983) (holding that a Hawaii tax giving preference to brandy produced from an indigenous shrub violated the Commerce Clause).
180. Maine, 477 U.S. at 140, 144 (please note cases cited therein, particularly Hughes v. Okla., 441 U.S. 322 (1979). The two criteria quoted are
181. New Energy Co. of Ind. v. Limbach, 486 U.S. 269, 276 (1988).
182. Maine, 477 U.S. at 137-38 (holding a complete ban on all imports of live baitfish is allowable even though "Maine's statute restricts interstate trade in the most direct manner possible.").
183. Ray v. Atlantic Richfield Co., 435 U.S. 151, 159 (1978) (holding invalid a state requirement for a local pilot on an enrolled vessel in direct violation of 46 U.S.C. § 215).
184. Ray, 435 U.S. at 158 (please note cases cited therein, including Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143 (1963), Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).
185. Ray, 435 U.S. at 157.
186. Id. at 157, 171-73 (holding whether or not a state requirement for a tug escort on a tanker was preempted would depend on whether or not the U.S. Coast Guard issued regulations on the subject).
187. Id. at 157.
188. DeCanas v. Bica, 424 U.S. 351 (1976) (federal interest in immigration did not foreclose all state action on subject); See also Harold G. Maier, Preemption of State Law: A Recommended Analysis, 83 AM. J. INT. L. 832 (1989).
189. Maine v. Taylor, 477 U.S. 131 (1986).
190. Maine, 477 U.S. at 142..
191. Id. at 138, 144 (The "Hughes test" is from Hughes v. Oklahoma, 441 U.S. 322 (1979)).
192. Id. at 140, 144 (please note cases cited therein, particularly Hughes v. Oklahoma, 441 U.S. 322 (1979)).
193. Id. at 146-47.
194. Id. at 150-51.
195. Id. at 151.
196. Fort Gratiot Sanitary Landfill, Inc. v. Mich. Dep't of Natural Resources, 504 U.S. 353 (1992).
197. MICH. COMP. LAWS § 299.425.
198. Fort Gratiot, 504 U.S. at 367.
199. Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440 (1959).
200. Relevant provisions of the city code, not otherwise cited, are described in Huron, 362 U.S. at 442, n.1.
201. Id., 362 U.S. at 441-2.
202. Id., 362 U.S. at 440.
203. Gibbons v. Ogden, 22 U.S. (9 Wheat) 1 (1824).
204. Huron, 362 U.S. at 447.
205. Id. at 447.
206. Id. at 442.
207. 435 U.S. 151, 159 (1978).
208. United States v. Locke (Intertanko), 120 S. Ct. 1135, 2000 U.S. LEXIS 1895 (2000) (slip opinion no. 98-1701, holding in part V) (popularly known as the Intertanko case, from the companion case of International Association of Independent Tanker Owners (Intertanko) v. Locke, rev'd, 148 F.3d 1053 (9th Cir. 1998)).
209. Huron, 362 U.S. at 449 et seq. (Justices Douglas and Frankfurter, dissenting).
210. Id. at 450 (dissenting opinion).
211. Id. at 449-55 (dissenting opinion).
212. Id. at 445.
213. Id. at 445-46.
214. Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978).
215. United States v. Locke (Intertanko), 120 S. Ct. 1135, 2000 U.S. LEXIS 1895 (2000)
216. Ray, 435 U.S. at 179-80.
217. The significance of the phrase "enrolled and registered vessels" is that these are vessels licensed under federal statutes and engaged in interstate and international trade.
218. Ray, 435 U.S. at 164.
219. Deadweight tonnes is an approximate measure of both size and cargo carrying capacity.
220. Ray, 435 U.S. at 158-59.
221. 46 U.S.C. §§ 215, 364.
222. Ray, 435 U.S. at 159-60 (the Supreme Court expressly overruled the holding of the lower federal court on this point).
223. Id. at 160-68.
224. Id. at 173-78.
225. Id. at 161 (citing the Ports and Waterways Safety Act, 33 U.S.C. §§ 1221 et seq., and the vessel inspection statutes in Title 46 of the U.S. Code).
226. Id. at 163.
227. Id. at 165.
228. Id. at 168, 178.
229. Id. at 165.
230. Id. at 168.
231. Ray, 435 U.S. at 179-80.
232. 33 U.S.C. §§ 1221 et seq.
233. Ray, 435 U.S. at 169.
234. Id. at 168-73.
235. OPA 90 § 4116(a), 33 U.S.C. § 3703, note. (The new federal requirement is for two tug escorts for all single-hulled tankers over 5,000 gross tons.).
236. OPA 90 § 4115, 33 U.S.C. § 3703a.
237. United States v. Locke (Intertanko), 120 S. Ct. 1135, 2000 U.S. LEXIS 1895 (2000).
238. Intertanko, 2000 U.S. LEXIS 1895, at *42-43 (slip opinion no. 98-1701, part IV) (PWSA provisions at 46 U.S.C. § 3703, other federal provisions at 33 U.S.C. § 1228, and preempted state provisions at Washington Administrative Code §§ 317-21-200, 250, 230).
239. Intertanko, 2000 U.S. LEXIS 1895, at *26 (slip opinion no. 98-1701, part III).
240. OPA 90 § 1018(a) (codified at 33 U.S.C. § 2718(a)).
241. Intertanko, 2000 U.S. LEXIS 1895, at *31 (slip opinion no. 98-1701, part III).
242. Id at *38-39.
243. Id. at* 22.
244. Id. at *40.
245. Id. at *40-41.
246. Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483 (9th Cir. 1984).
247. 33 U.S.C. §§ 1221 et seq.
248. 33 U.S.C. §§ 1251 et. seq.
249. The International Convention for the Prevention of Pollution from Ships, supra note 150.
250. 33 U.S.C. §§ 1901-1911.
251. 33 C.F.R. pt. 157 (The Coast Guard had promulgated regulations, in this same part, requiring all tank vessels of 20,000 DWT or more built after 1979 to have segregated ballast tanks. However, many older vessels continued in service after that time.); See also Chevron, 726 F.2d at 486 (discussion of the regulations.).
252. See Chevron, 726 F.2d at 486.
253. ALASKA STAT. § 46.03750(e)(1976), amended by ALASKA STAT. § 46.03.750(a), (b) (1980).
254. Chevron, 726 F.2d at 501.
255. Id. at 488.
256. Id. at 489.
257. Id. at 491.
258. Id. at 499.
259. Id. at 500 n.23.
260. 33 C.F.R. pt. 157, subpt. B, §§ 157.08 et seq.
261. Coast Guard Notice of Proposed Rulemaking on Implementation of the National Invasive Species Act of 1996, 63 Fed. Reg. 17782, 17785 (Apr. 10, 1998).
262. 16 U.S.C. § 4725
263. 16 U.S.C. § 4725.
264. Id.
265. 16 U.S.C. §§ 4701 et seq.
266. 73 AM. JUR. 2D Statutes § 206.
267. THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 290 (New College Ed. 1976).
268. National Research Council Marine Board, supra note 15 (this report is specifically referred to by Congress in the NISA 96 amendments, at 16 U.S.C. § 4714(b)(4)).
269. Locke, et al., supra note 69.
270. Allegra Cangelosi, The Algonorth Experiment: A Groundbreaking Project in the Great Lakes Will Test One Potential Technology to Control the Spread of Unwanted Organisms, 25 SEAWAY REV. 29-33 (1997) (It is also interesting to note, although it does not thereby bind Congress, that Ms. Cangelosi was in fact a primary drafter of both NANPCA 90 and NISA 96 for Senator John Glenn.).
271. National Research Council Marine Board, supra note 15 at 9 n.5 (Aside from evidencing the common use of the word "control" by experts in the field, the proceedings of the Marine Board also evidence a common understanding on the part of the scientific community that the mandate of the new legislation included collaboration between federal and state agencies on the specific problem of ballast water. One of the recommendations of the Marine Board is that, "The cognizant U.S. authority, as a matter of priority, should be tasked with developing domestic guidelines to minimize the translocation of unwanted organisms among U.S. ports by vessels engaged trade along U.S. coasts." [These, actually, would be the "coastwise" U.S. vessels which are subject to exclusive federal license, addressed in the Ray case.] A footnote to that recommendation said that, "The cognizant U.S. authority may be the Coast Guard, the state, or the port authority, depending on circumstances." The Marine Board is not a court, and has no authority to issue a legal opinion on preemption doctrine. However, that recommendation is relevant in that it reflects a common understanding of what Congress intended by an important national body - and one whose work was specifically endorsed by Congress in the NISA 96 amendments. See 16 U.S.C. § 4714(b)(4) (reference to the Marine Board)).
272. 16 U.S.C. § 4702.
273. 16 U.S.C. § 4702(6).
274. 16 U.S.C. § 4722(e)(1).
275. Morton, supra note 59, at 1, 16.
276. Carlton, et al., supra note 14 at 102 Box 5-2 (The species and the places they have infested, among others, are (1) Limnoperna fortunei, a Chinese freshwater mytilid which has infested Taiwan, (2) Undaria pinnatifida, an Asian brown algae which has invaded Australia and New Zealand, (3) Corophium curvispinum, an amphipod crustacean which has invaded the Rhine, (4) Potamopyrgus antipodarum, a New Zealand freshwater hydrobid snail which has invaded Europe, (5) Caulerpa taxifolia, a toxic algae, origin unspecified, which has invaded the Mediterranean, and (6) Neomysis japonica, a Japanese shrimp which has invaded Australia.).
277. 16 U.S.C. § 4725
278. Id.
279. U.S. CONST, art. VI, § 2.
280. 16 U.S.C. § 4723.
281. 16 U.S.C. § 4724.
282. 16 U.S.C. § 4701(a)(15) (emphasis added).
283. 16 U.S.C. § 4721(c)(1)(A).
284. 16 U.S.C. § 4722(c)(2) (emphasis added).
285. 16 U.S.C. § 4722(g) (emphasis added).
286. S. REP. NO. 101-523, at 8 (1990), reprinted in 1990 U.S.C.C.A.A.N. 6455, 6462 (emphasis added).
287. Jon G. Stanley, et al., U.S.. Federal Policies, Legislation, and Responsibilities Related to Importation of Exotic Fishes and Other Aquatic Organisms, 48 CANADIAN J. FISHERIES & AQUATIC SCI. 162, 165 (1991) ("Rigorous review of all exotic introductions and consultations with all concerned jurisdictions and user groups should precede any planned introduction.").
288. Aquatic Nuisance Species Task Force, Findings, Conclusions, and Recommendations of the Intentional Introductions Policy Review, report to Congress under the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 § 1207 [16 U.S.C. § 4727] (Washington, DC: ANS Task Force, U.S. FWS & NOAA, Mar. 1994) (The 1991 study was impressionistic rather than systematic in nature, because it was based on responses to questions and those responses were noticeably uneven in evident interest and detail.).
289. Id. at 10; See also Paul J. Wingate, U.S. State's View and Regulations on Fish Introductions, 48 CANADIAN J. FISHERIES & AQUATIC SCI. 167 (1991) (on the mixed state of affairs in 1991).
290. Id. at 10; See also Paul J. Wingate, U.S. State's View and Regulations on Fish Introductions, 48 CANADIAN J. FISHERIES & AQUATIC SCI. 167 (1991) (on the mixed state of affairs in 1991).
291. Reeves, supra note 12, part III.
292. The term "conservation agency" is used here as a generic stand-in for a department or ministry of natural resources, a conservation department, or a fish and wildlife service, division, or commission.
293. MICH. COMP. LAWS § 286.875(1).
294. MICH. COMP. LAWS § 324.45906.
295. MICH. ADMIN. CODE r §§ 299.1051, 299.1052 (1979) (issued under the authority of MICH. COMP. LAWS § 324.45906 (replacing MICH. COMP. LAWS § 308.115 et seq.)).
296. MINN. STAT. §§ 84D.01 et seq.
297. Cathy Keddy, Canada's Capability for Managing Alien Organisms: Implications for Conserving Native Biodiversity, report prepared for the North American Wetlands Conservation Council (Canada) and the Canadian Wildlife Service 7 (Nov. 1997).
298. In the U.S., primarily the U.S. Coast Guard, implementing Titles 33 and 46 of the U.S. Code, as well as the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, as amended by the National Invasive Species Act of 1996, U.S. Code at 16 U.S.C. §§ 4701 et seq., hereinafter referred to as National Invasive Species Act or NISA. That does not mean that federal authority is exclusive.
299. Ontario Environmental Protection Act, R.S.O., Chapter E.19.
300. Fish and Wildlife Conservation Act Of 1997, S.O., Chapter 41 (1997) (The Ministry shares responsibility for fisheries with the Federal Department of Fisheries and Oceans under the Canada Fisheries Act, R.S.C., Chapter F-14.).
301. S.O. Chapter 41, § 47.(1); Game and Fish Act Regulations with Respect to Fish, R.O. 267/95.
302. Canada Shipping Act, R.S.C., Chapter S-9.
303. Great Lakes Basin Compact (authorized with exceptions by Pub. L. 90-419 (July 24, 1968)), adopted by the Great Lakes states at 45 ILL. COMP. STAT. 145/0-01 et seq., IND. CODE §§ 14-25-13-1 et seq., MICH. COMP. LAWS §§ 324.32101 et seq., MINN. STAT. §§ 1.21 et seq., N.Y. ENVTL. CONSERV. LAW §§ 21-0901 et seq., OHIO REV. CODE ANN. §§ 6161.01 et seq., 32 PENN. CONS. STAT. §§ 817.1 et seq., and WISC. STAT. §§ 14.78 et seq.
304. Convention on Great Lakes Fisheries between the United States of America and Canada, T.I.A.S. 3326 (Sept. 10, 1955).
305. MINN. STAT. §§ 84D.01 et seq.
306. MINN. R. 6216.0265 (5A(6)) (1998).
307. MINN. STAT. § 84D.06 (1).
308. MINN. R. 6216.0290 (1A(9)) (1998).
309. 18 U.S.C. § 42.
310. 18 U.S.C. § 42(a)(1) (emphasis added).
311. Federal Plant Pest Act, 7 U.S.C. §§ 150aa-150jj; Plant Quarantine Act, 7 U.S.C. §§ 151-164a, 167; Federal Seed Act, 7 U.S.C. § 1581; Federal Noxious Weed Act, 7 U.S.C. §§ 2801-2814; 7 U.S.C. § 148f (provisions on grasshopper control); 21 U.S.C. §§ 102-105 (quarantine of imported animals); 21 U.S.C. §§ 111-114a-1 (contagious diseases).
312. 16 U.S.C. § 3372(a)(2).
313. 18 U.S.C. § 41, 40 C.F.R. § 16.13 (include a limited set of regulations controlling certain fish and other aquatic organisms, particularly salmonids).
314. James P. Clugston, Strategies for Reducing Risk from Introductions of Aquatic Organisms: The Federal Perspective, 11 FISHERIES 26-29 (1986).
315. R.S.C. Chapter F-14.
316. R.S.C. Chapter F-14 § 43(b)-(c).
317. R.O. 89-93.
318. Attorney General of Canada v. Attorney General of Ontario, A.C. 700 (1898).
319. The Canada-Ontario Agreement Respecting the Great Lakes Basin Ecosystem (1994) (effective from April 1, 1994 to March 31, 2000, and under renegotiation as of April 1, 2000).
320. Great Lakes Water Quality Agreement of 1978 (GLWQA), as amended by the Protocol of 1987, U.S.-Can., 30 U.S.T. 1383 (Nov. 22, 1978) (The GLWQA is not a ratified treaty, but is formally recognized by U.S. statutes and the Canada-Ontario Agreement.).
321. Canada-Ontario Agreement, supra note 305, at § 4.3.
322. Convention on Great Lakes Fisheries between the United States of America and Canada, supra note 290.
323. Id. at art. IV(a).
324. Id. at art. IV(b).
325. International Joint Commission & Great Lakes Fishery Commission, supra note 42, at 11-14.
326. 16 U.S.C. § 4101 et seq.
327. 16 U.S.C. § 4723.
328. Great Lakes Basin Compact, art. II, paragraph B (The original compact is printed in full, along with the Congressional approval with exceptions, in Pub. L. 90-419 (July 24, 1968)).
329. 16 U.S.C. § 4723(a)(3) (It might be argued that this is not permission to speak with "observers," but the infinitive "to participate" is quite encouraging.).
330. 16 U.S.C. § 4723(a)(1).
331. 16 U.S.C. § 4723(a)(2).
332. GLWQA, supra note 306.
333. Id. at art. III, § 1(c).
334. Treaty Relating to Boundary Waters and Questions Arising Between the United States and Canada, Jan. 11, 1909, U.S.-Can., 36 Stat. 2448.
335. GLWQA, supra note 306, at Annex 6.
336. GLWQA, supra note 306, at art. II (emphasis added).
337. See IAN HODGE, ENVIRONMENTAL ECONOMICS: INDIVIDUAL INCENTIVES AND PUBLIC CHOICES (1995) (The prevailing school of economics, when not just making a hegemonic claim to be "economics" without any further explanation, as if none were required, is known variously as "classical liberalism," "neoclassical economics," or, oddly enough, "welfare economics." It is also sometimes called "free-market economics," which does accurately express the technical bias towards free markets, but incorrectly implies that preference for a free market is a first principle of analysis. The first principle is, in fact, social welfare. Critics of this prevailing paradigm accuse it of being insensitive [or something worse] about social problems of war, poverty, and the environment. Leaving problems of war and poverty aside, I would point out that most of the literature and work in the subfield of "environmental economics," which is being drawn upon here, is in fact neoclassical welfare economics.).
338. STEVEN E. RHOADS, THE ECONOMISTS VIEW OF THE WORLD: GOVERNMENT, MARKETS, & PUBLIC POLICY 67 (1985); See also HENRY G. MANNE, ED., THE ECONOMICS OF LEGAL RELATIONSHIPS: READINGS IN THE THEORY OF PROPERTY RIGHTS 351 et seq. (1975) (the concept of externalities, and its application to legal rules is discussed extensively).
339. STEVEN E. RHOADS, THE ECONOMISTS VIEW OF THE WORLD: GOVERNMENT, MARKETS, & PUBLIC POLICY 67 (1985); See also HENRY G. MANNE, ED., THE ECONOMICS OF LEGAL RELATIONSHIPS: READINGS IN THE THEORY OF PROPERTY RIGHTS 351 et seq. (1975) (the concept of externalities, and its application to legal rules is discussed extensively).
340. Evan J. Ringquist, Evaluating Environmental Policy Outcomes, in JAMES P. LESTER, ED., ENVIRONMENTAL POLITICS & POLICY 305 (1995) (There are of course many problems in starting assumptions, evaluation criteria, and methodology, and difficulties in multidisciplinary communication, as well as practical limitations on measurement, impeding any consensus on the success of pollution programs. A careful review of the literature by Evan J. Ringquist offers the following observations. "Of all the outcomes of environmental policies, economic outcomes are the most studied and best understood. ⋯economists have concluded almost unanimously that the present system of command-and-control regulations is less efficient than a system of market-like incentives.⋯ The same unanimity is not present, however, when it comes to comparing the costs and benefits of environmental regulation. A fair summarization of the voluminous benefit-cost literature in this area is that the benefits of clean air regulation probably exceed their costs.⋯ Estimated benefits and costs in water pollution control regulation are roughly equivalent, but the costs of hazardous waste regulation are said by economists to far exceed the value of the benefits produced.⋯" Whether or not regulatory policies are environmentally effective, as opposed to being economically efficient, is a different and more difficult matter, which bears no necessary relationship to economic efficiency. A policy can be well-designed in terms of producing a high ratio of benefits to costs in terms of dollar costs as conventionally measured, but still be wholly ineffective in terms of achieving an adequate level of protection, which means that it is not really efficient in terms of true unmeasured costs to the environment, or vice versa. In reviewing the literature on actual improvements to the environment, Ringquist finds a very mixed picture. A number of studies would indicate that "air quality regulations have been generally ineffective," but he points out significant flaws in those studies, and he cites others which "come to more positive conclusions." Supra at 317. "While research evaluating the effectiveness of water quality regulations in reducing pollutant effluent is unanimous in concluding success [in terms of actual reductions, whatever the benefit/cost ratio], the literature evaluating the effect water quality regulations have had on overall water quality is equally unanimous in concluding something closer to failure.⋯ Each of the studies⋯offers the same reason for this impotence - a myopic focus on point sources." Supra at 318-19. The data on hazardous waste management is too uncertain to properly evaluate. Supra at 319. A large part of the problem there [in my opinion] is that we have created a command system which is efficient at collecting waste. Supra at 316, table 11.4. We really do not know the effectiveness of the long-term plan for dealing with that waste collected. Reviewing the literature on hazardous waste clean-up sites, Ringquist says that "it has been a nearly unqualified failure from economic, political, legal, and environmental perspectives." Supra at 320). My justification for focusing on the economic analysis, with a stress on the relative effectiveness of command versus market approaches, is actually based on fundamental environmental and political assumptions. Given the difficulties in measuring true cost to the environment, and the even greater difficulties in communicating those costs to the public and overcoming powerful political opposition to effective controls, I make the working assumption that, as a political matter, our social control on pollution will almost always fall far short of the true optimal level - and will be strongly affected by perceived measurable costs in a conventional sense. In other words, every bit of environmental regulation is a limited, costly, and precious bit of political capital which we [environmentalists] cannot afford to squander. Ironically, this leads me back to being highly sensitive about the same conventional benefit-cost ratios which are used by anti-environmentalists to oppose controls. See also RHOADS, supra note 324.
341. There may be an exception, although that has yet to be demonstrated. See U.S. Fish & Wildlife Service, The 100th Meridian Initiative: A Strategic Approach to Prevent the Westward Spread of Zebra Mussels and Other Aquatic Nuisance Species, Report to the Western Regional Panel on Aquatic Nuisance Species (visited Dec. 27, 1999) . (The "100th Meridian Initiative," much like the voluntary ballast exchange program for controlling the ruffe in Lake Superior, relies on the fortunate existence of a natural ecological barrier as a line of defense. The idea is to stop the spread of the zebra mussel to the western half of North America by getting all the jurisdictions astride the 100th meridian - Texas, Oklahoma, Kansas; Nebraska, South Dakota, North Dakota, and Manitoba - to cooperate with aggressive educational and voluntary programs to intercept zebra mussels carried on trailered boats. However, there has been less than full participation by all the jurisdictions, and the political difficulty is that we are asking those who have the least to gain to do the most about the problem.).
342. See Great Lakes Information Network (GLIN), Exotic Species in the Great Lakes Region, (visited Feb. 21, 2000) .
343. Jeff Gunderson, Three-State Exotic Species Boater Survey: What Do Boaters Know and Do They Care?, (visited Dec. 27, 1999) .
344. Id.
345. Economists, who are not quite so humorless as many think, actually refer to this in the literature as the "warm glow effect." Whatever the biological or psychological basis for it, many people do take pleasure in doing good things.
346. Before both LCA and CSA express outrage at this statement, a little explanation. The economic monopoly is both legal and economic, in fact, even if not in any way in violation of the anti-trust laws of the two nations. The legal monopoly consists mainly of the protection of the cabotage laws, restricting trade between domestic ports to the ships of each nation. The economic monopoly is a "natural monopoly" due to the structural economic efficiencies of both vertical integration and inter-firm cooperation which characterizes the domestic shipping industry in the Great Lakes. There is nothing evil in this. In fact, it is probably the type of monopoly which benefits the public. And, like all monopolies, it is incomplete. The competition created by substitute sources, whether the Seaway shipping, barges on the Mississippi, or the trains, keeps Great Lakes shipping fairly competitive and efficient.
347. Discussions with Captain Chris J. Badger, Harbour Master, Vancouver Port Corporation, Vancouver, B.C. (Mar. 1998) (The standing order is entitled the Vancouver Port Corporation, Ballast Water Exchange Program (May 1997)).
348. Locke, et al., supra note 69, at 8 (this is an important limitation on the reliability of the measure).
349. Reeves, Protection of the Great Lakes, supra note 139, at 283, 288-89, table 1 (The number of "problem vessels," relative to the number of vessels entering with ballast, declined from 7.4% to 1% over the five years from 1993 to 1997, and those "problem vessels" found to initially be not in compliance were required to take remedial measures, such as treatment of the water, to correct the problem.).
350. Based on figures I compiled (and officially reported to U.S. Coast Guard Headquarters) while in charge of administration of the program on the staff of the U.S. Coast Guard Ninth District in Cleveland, Ohio.
351. To be clear, the level of protection is still far from satisfactory, for all the reasons given in Section I above. All that is being discussed here is the relative level of compliance in comparing the voluntary and mandatory programs which were substantially the same in substance.
352. See WAYNE R. LAFAVE & AUSTIN W. SCOTT, HANDBOOK ON CRIMINAL LAW (1972) (justification of crimes); Canada Criminal Code, Consolidated Statutes Canada, C-34, § 222(3) (technically called "non-culpable homicide" in Canada).
353. 33 U.S.C. §§ 1251 et seq.
354. 33 U.S.C. §§ 1251(a)(1).
355. Rivers and Harbors Appropriations Act of 1899, 30 Stat. 1151, ch. 425, § 13 (1899) (It is codified at 33 U.S.C. § 40 and is commonly known as the Refuse Act of 1899. This interesting provision, still part of U.S. law, is notable for the way it states the prohibition of any discharge in absolute terms [although it excepts municipal sewage, and provides for permits for some other discharges under the authority of the U.S. Army Corps of Engineers, which oversees harbor works], and for the fact that the only provision for enforcement is by criminal prosecution [under § 16 of the same act, at 33 U.S.C. § 411, which provides for criminal fines and imprisonment]. It was, of course, quite ineffective.).
356. See CWA §§ 1251 et seq, 33 U.S.C. §§ 1251 et seq.; CAA §§ 7401 et seq, 42 U.S.C. §§ 7401 et seq. (The U.S. Federal Water Pollution Control Act Amendments of 1972 became part of what is now most commonly known as the Clean Water Act, and the associated air legislation was the Clean Air Amendments of 1970, which are part of a larger scheme called the Clean Air Act.); See also, RODGERS, supra note 106, at ch. 3-4 (provides a detailed review of the history of these associated statutes, the regulatory philosophy underlying both the air and water legislation, and the political conflicts manifest in both).
357. See RHOADS, supra note 324, at 40 et seq.
358. Letter from Craig N. Johnson, Attorney for Pacific Environmental Advocacy Center, to Carol Browner, Administrator, U.S. EPA, "Petition for repeal of 40 CFR § 122.3(a)" (January 13, 1999) (on file with author) (The groups joining in the petition are Northwest Environmental Advocates, San Francisco Bay Keeper, Center for Marine Conservation, Chippewa-Ottawa Treaty Fishery Management Authority, People for Puget Sound, Great Lakes United, Dogwood Alliance, Great Lakes Sport Fishing Council, Pacific Coast Federation of Fisherman's Associations, Coastal Waters Project, Friends of San Juan, Association of California Water Agencies, Quoddy Spill Prevention Group, and Delta Keeper.).
359. 33 U.S.C §§ 1251 et seq.
360. 33 U.S.C § 1311.
361. 33 U.S.C § 1362(6); See Nat'l Wildlife Federation v. Consumers Power Co., 862 F.2d 580, 583 (6th Cir. 1988) (in dicta, chopped up native fish were clearly acknowledged to be such "biological material," under the Clean Water Act).
362. 40 CFR § 122.3(a).
363. Zellmer, supra note 5.
364. RHOADS, supra note 324, at 40 (quoting Robert Crandall, Environmental Protection Agency, in REGULATIONS 20 (1980)).
365. RHOADS, supra note 324, at 40 (quoting a Chrysler vice-president, in BERNARD ASBELL, THE SENATE NOBODY KNOWS 318-26 (1978)).
366. See Cangelosi, supra note 257, at 29-33.
367. I did not write down the words at the time, but that is very close to the exact language, and certainly accurate as a paraphrase. I will decline to identify the specific meeting or the participants. My point here is to make a general observation about the nature of the process, not to embarrass individuals.
368. See Pollutech Environmental Limited, A Review and Evaluation of Ballast Water Management and Treatment Options to Reduce the Potential for the Introduction of Non-Native Species to the Great Lakes, Technical Appendix B, Ballast Water Treatment, report prepared for the Canadian Coast Guard (March 31, 1992); Australian Quarantine and Inspection Service, Ballast Water Treatment for the Removal of Marine Organisms, Ballast Water Research Series Report No. 1 (1993) (The only systematic attempts to compare the economic feasibility of leading technological options have been the 1992 Pollutech study funded by the Canadian Coast Guard and, to a somewhat lesser extent, a 1993 study by the Australian Quarantine and Inspection Service [AQIS]. Both of these reports have been received rather critically by industry representatives [often making valid points about the assumptions going into the estimates], but the industry groups have never provided their own comparative cost analyses in a similar form. Several excellent reports on individual technologies have been recently provided by an overlapping group of researchers centered around the University of Michigan.); See also, Larissa M. Lubomudrov, et al., An Evaluation of the Feasibility and Efficacy of Biocide Application in Controlling the Release of Nonindigenous Aquatic Species from Ballast Water (Nov. 1997) (regarding biocides; the study is an especially good example of a serious cost analysis, done on several sliding scales which reflect critical parameters such as concentration of the biocide [how much do you need to kill?] and numbers of metric tonnes [how much do you need to treat?] which are all-too-frequently left out, or poorly specified, in scoping studies. It serves, also, as proof that serious cost analysis is quite doable, and with relatively quick and cheap studies not requiring field work or experimentation); See also, Michael G. Parsons, et al., Great Lakes Ballast Demonstration Project - Phase I (1997) (regarding filtering); See also Michael G. Parsons, "Flow-Through Ballast Water Exchange," a background paper for the Society of Naval Architects and Marine Engineers (SNAME) Ad-Hoc Panel on Ballast Water Exchange, SNAME Annual Meeting, San Diego, 1998 (regarding flow-through exchange retrofitting). The upshot of these separate studies is to indicate that (1) a possibly acceptable biocide, glutaraldehyde, may cost $600 to $6,000 per 1,000 tonnes, depending on concentration and whether or not there is pre-filtering, which is not included in these figures, (2) retrofitting filters on existing Seaway vessels will cost something more than $1 million, based on a handysize bulker of 29,210 DWT, and (3) retrofitting for flow-through exchange may range from $200,000 to $1,000,000 in capital costs "for existing large vessels" (referring, among other types of ships, to a very large Capesize bulker of 190,000 DWT and a Suezmax-range tanker of 120,000 DWT). There are a number of debatable assumptions which go into those last figures for flow-through retrofitting and, as one can see from the summary here, it is not really compared to the filtering estimate because entirely different sizes of vessels are being discussed. The lack of truly systematic comparisons continues to plague work on this subject.
369. See Pollutech Environmental Limited, A Review and Evaluation of Ballast Water Management and Treatment Options to Reduce the Potential for the Introduction of Non-Native Species to the Great Lakes, Technical Appendix B, Ballast Water Treatment, report prepared for the Canadian Coast Guard (March 31, 1992); Australian Quarantine and Inspection Service, Ballast Water Treatment for the Removal of Marine Organisms, Ballast Water Research Series Report No. 1 (1993) (The only systematic attempts to compare the economic feasibility of leading technological options have been the 1992 Pollutech study funded by the Canadian Coast Guard and, to a somewhat lesser extent, a 1993 study by the Australian Quarantine and Inspection Service [AQIS]. Both of these reports have been received rather critically by industry representatives [often making valid points about the assumptions going into the estimates], but the industry groups have never provided their own comparative cost analyses in a similar form. Several excellent reports on individual technologies have been recently provided by an overlapping group of researchers centered around the University of Michigan.); See also, Larissa M. Lubomudrov, et al., An Evaluation of the Feasibility and Efficacy of Biocide Application in Controlling the Release of Nonindigenous Aquatic Species from Ballast Water (Nov. 1997) (regarding biocides; the study is an especially good example of a serious cost analysis, done on several sliding scales which reflect critical parameters such as concentration of the biocide [how much do you need to kill?] and numbers of metric tonnes [how much do you need to treat?] which are all-too-frequently left out, or poorly specified, in scoping studies. It serves, also, as proof that serious cost analysis is quite doable, and with relatively quick and cheap studies not requiring field work or experimentation); See also, Michael G. Parsons, et al., Great Lakes Ballast Demonstration Project - Phase I (1997) (regarding filtering); See also Michael G. Parsons, "Flow-Through Ballast Water Exchange," a background paper for the Society of Naval Architects and Marine Engineers (SNAME) Ad-Hoc Panel on Ballast Water Exchange, SNAME Annual Meeting, San Diego, 1998 (regarding flow-through exchange retrofitting). The upshot of these separate studies is to indicate that (1) a possibly acceptable biocide, glutaraldehyde, may cost $600 to $6,000 per 1,000 tonnes, depending on concentration and whether or not there is pre-filtering, which is not included in these figures, (2) retrofitting filters on existing Seaway vessels will cost something more than $1 million, based on a handysize bulker of 29,210 DWT, and (3) retrofitting for flow-through exchange may range from $200,000 to $1,000,000 in capital costs "for existing large vessels" (referring, among other types of ships, to a very large Capesize bulker of 190,000 DWT and a Suezmax-range tanker of 120,000 DWT). There are a number of debatable assumptions which go into those last figures for flow-through retrofitting and, as one can see from the summary here, it is not really compared to the filtering estimate because entirely different sizes of vessels are being discussed. The lack of truly systematic comparisons continues to plague work on this subject.
370. See Pollutech Environmental Limited, A Review and Evaluation of Ballast Water Management and Treatment Options to Reduce the Potential for the Introduction of Non-Native Species to the Great Lakes, Technical Appendix B, Ballast Water Treatment, report prepared for the Canadian Coast Guard (March 31, 1992); Australian Quarantine and Inspection Service, Ballast Water Treatment for the Removal of Marine Organisms, Ballast Water Research Series Report No. 1 (1993) (The only systematic attempts to compare the economic feasibility of leading technological options have been the 1992 Pollutech study funded by the Canadian Coast Guard and, to a somewhat lesser extent, a 1993 study by the Australian Quarantine and Inspection Service [AQIS]. Both of these reports have been received rather critically by industry representatives [often making valid points about the assumptions going into the estimates], but the industry groups have never provided their own comparative cost analyses in a similar form. Several excellent reports on individual technologies have been recently provided by an overlapping group of researchers centered around the University of Michigan.); See also, Larissa M. Lubomudrov, et al., An Evaluation of the Feasibility and Efficacy of Biocide Application in Controlling the Release of Nonindigenous Aquatic Species from Ballast Water (Nov. 1997) (regarding biocides; the study is an especially good example of a serious cost analysis, done on several sliding scales which reflect critical parameters such as concentration of the biocide [how much do you need to kill?] and numbers of metric tonnes [how much do you need to treat?] which are all-too-frequently left out, or poorly specified, in scoping studies. It serves, also, as proof that serious cost analysis is quite doable, and with relatively quick and cheap studies not requiring field work or experimentation); See also, Michael G. Parsons, et al., Great Lakes Ballast Demonstration Project - Phase I (1997) (regarding filtering); See also Michael G. Parsons, "Flow-Through Ballast Water Exchange," a background paper for the Society of Naval Architects and Marine Engineers (SNAME) Ad-Hoc Panel on Ballast Water Exchange, SNAME Annual Meeting, San Diego, 1998 (regarding flow-through exchange retrofitting). The upshot of these separate studies is to indicate that (1) a possibly acceptable biocide, glutaraldehyde, may cost $600 to $6,000 per 1,000 tonnes, depending on concentration and whether or not there is pre-filtering, which is not included in these figures, (2) retrofitting filters on existing Seaway vessels will cost something more than $1 million, based on a handysize bulker of 29,210 DWT, and (3) retrofitting for flow-through exchange may range from $200,000 to $1,000,000 in capital costs "for existing large vessels" (referring, among other types of ships, to a very large Capesize bulker of 190,000 DWT and a Suezmax-range tanker of 120,000 DWT). There are a number of debatable assumptions which go into those last figures for flow-through retrofitting and, as one can see from the summary here, it is not really compared to the filtering estimate because entirely different sizes of vessels are being discussed. The lack of truly systematic comparisons continues to plague work on this subject.
371. This statement is based on my personal experience in numerous interagency committees and study groups during that period.
372. National Research Council Marine Board, supra note 15 (The omission of systematic and quantitative cost comparisons is particularly noticeable in light of the comparisons provided in the 1992 Canadian report, which seemed to have been heavily drawn upon by the Marine Board for other purposes. In this story, the Marine Board is the dog that did not bark.); See Pollutech Environmental Limited, supra note 353 (As noted above, the shipping industry has not received the Canadian report with much favor.).
373. Dr. Robert R. Hiltabrand, Presentation at the U.S. Coast Guard Research and Development Center, to the "Ballast Water Workshop" (Apr. 28, 1999), at the 9th International Zebra Mussel & Aquatic Nuisance Species Conference, Duluth, Minnesota (Apr. 26-30, 1999).
374. Id.
375. See Section II, supra.
376. CASABLANCA (Warner Brothers 1943).
377. See EDWARD P. WEBER, PLURALISM BY THE RULES: CONFLICT AND COOPERATION IN ENVIRONMENTAL REGULATION (1998) (on general problems in such cooperative approaches to environmental regulation, by someone who favors the cooperative approach within limits).
378. Statement based on my personal experience administering federal marine safety laws. Actual examples of such provisions may be found throughout the "applicability" sections of Title 46 of the Code of Federal Regulation regarding "Shipping."
379. Id.
380. See RHOADS, supra note 324, at 41 et seq. (details the failure of compliance with programs administered by EPA).
381. This includes adult aquatic animals, fish eggs and veligers, most of the mussel veligers, or at least messes them up quite a bit as they plop through, and big pieces of plants and seeds. It misses a number of smaller organisms, such as some of the invertebrate eggs in the range of 20 to 100 microns, microscopic pieces of weeds, algae cysts in the range of 5 to 25 microns, some of the fungi in the range of 1 to 100 microns, some of the protozoa in the range of 1 to 80 microns, and bacteria and viruses which are less than 1 micron.
382. See When Lawsuits Make Policy, 349 THE ECONOMIST 17-18 (Nov. 21 1998) (cover story).
383. See MANNE, supra note 324; See also ROBERT L. RABIN, PERSPECTIVES IN TORT LAW (1994) (This is a focus of a relatively new area of cross-disciplinary study known as "economics and law," which explores the methods by which legal rules of property, tort [civil wrongs], and contract serve as a regulatory system for economic allocation of resources.).
384. See MANNE, supra note 324; See also ROBERT L. RABIN, PERSPECTIVES IN TORT LAW (1994) (This is a focus of a relatively new area of cross-disciplinary study known as "economics and law," which explores the methods by which legal rules of property, tort [civil wrongs], and contract serve as a regulatory system for economic allocation of resources.).
385. Letter from Craig N. Johnson, Attorney for Pacific Environmental Advocacy Center, to Carol Browner, Administrator, EPA, "Petition for repeal of 40 CFR § 122.3(a)" (Jan. 13, 1999) (on file with author).
386. See W. PAGE KEETON, ED., PROSSER AND KEETON ON THE LAW OF TORTS (1984), ch. 15, especially § 90 (provides the history and general principles of nuisance law); See also RODGERS, supra note 106, at ch. 2 (short review of modern cases using nuisance law to redress environmental damage).
387. Id.
388. Id.
389. Id.
390. See KEETON, supra note 368, at ch.17.
391. Many lawyers and economists will object to this statement, pointing out numerous theoretical differences in the nuances of each test. But let's please be real here. Given the lack of any quantitative precision in evaluating the costs and benefits under any of the three tests, the fact is that they are basically the same exercise.
392. Common objections I have heard to the concept.
393. RHOADS, supra note 324, at 53.
394. See Canadian Shipowners Association & Chamber of Maritime Commerce, A Competitive Vision for the Great Lakes - St. Lawrence Waterway: An Initiative of Canada's Marine Industry (visited Mar. 24, 2000) (for example, the complaints about government favoritism towards railroads hauling grain from the interior to the seacoast in competition with Canadian shipping through the Seaway, and the comparison in resulting air emissions).
395. See Lawrence H. Goulder, et al., The Cost-Effectiveness of Alternative Instruments for Environmental Protection in a Second-Best Setting, 72 J. PUB. ECON. 329 (1999) (This is where the mathematics becomes serious, and one must resort to professional economists, who may themselves not be able to answer the questions on the available data. Much like ecosystem effects of disturbances, changes in tax or regulatory policy can be buffered or amplified by prior states and distortions. For example, economists have pointed out that well-designed market incentive schemes for environmental protection can still result in excessive costs if the market being taxed is already subject to distortionary regulations or taxes. The argument here, on behalf of the Seaway, is that they are already wrongly disadvantaged by the lack of recognition of the externalized value of shipping in current public policies. Therefore a scheme of negative incentives, even if fair in principle, would be amplified in its negative effects on Seaway Shipping. [Command regulation would still be worse. Goulder, et al., supra] On the other hand, one might intuitively assume that, if the Seaway is in fact already over-subsidized by existing policy [a question of detailed econometrics, upon which I do not have sufficient information], then a negative incentive policy, properly designed, would only tend to compensate for the prior distortion. However, such intuitions are not always reliable.); See also Anastasios Xepapadeas & Aart de Zeeuw, Environmental Policy and Competitiveness: The Porter Hypothesis and the Composition of Capital, 37 J. ENVTL. ECON. & MGMT. 165 (1999) (Aside from all this, there is the matter of an interesting but highly controversial thing called the "Porter Hypothesis," which proposes that environmental regulations can actually advance market growth by forcing industries to re-tool and become more efficient. This might have some application to sending aging handysize bulkers to scrap. One recent evaluation of this hypothesis suggests that such a "win-win" scenario is unlikely, but that it is not implausible for some favorable side-effects of environmental regulation to help lessen the costs somewhat. In other words, one might see a "win-not-lose-so-much" scenario.).
396. See Lawrence H. Goulder, et al., The Cost-Effectiveness of Alternative Instruments for Environmental Protection in a Second-Best Setting, 72 J. PUB. ECON. 329 (1999) (This is where the mathematics becomes serious, and one must resort to professional economists, who may themselves not be able to answer the questions on the available data. Much like ecosystem effects of disturbances, changes in tax or regulatory policy can be buffered or amplified by prior states and distortions. For example, economists have pointed out that well-designed market incentive schemes for environmental protection can still result in excessive costs if the market being taxed is already subject to distortionary regulations or taxes. The argument here, on behalf of the Seaway, is that they are already wrongly disadvantaged by the lack of recognition of the externalized value of shipping in current public policies. Therefore a scheme of negative incentives, even if fair in principle, would be amplified in its negative effects on Seaway Shipping. [Command regulation would still be worse. Goulder, et al., supra] On the other hand, one might intuitively assume that, if the Seaway is in fact already over-subsidized by existing policy [a question of detailed econometrics, upon which I do not have sufficient information], then a negative incentive policy, properly designed, would only tend to compensate for the prior distortion. However, such intuitions are not always reliable.); See also Anastasios Xepapadeas & Aart de Zeeuw, Environmental Policy and Competitiveness: The Porter Hypothesis and the Composition of Capital, 37 J. ENVTL. ECON. & MGMT. 165 (1999) (Aside from all this, there is the matter of an interesting but highly controversial thing called the "Porter Hypothesis," which proposes that environmental regulations can actually advance market growth by forcing industries to re-tool and become more efficient. This might have some application to sending aging handysize bulkers to scrap. One recent evaluation of this hypothesis suggests that such a "win-win" scenario is unlikely, but that it is not implausible for some favorable side-effects of environmental regulation to help lessen the costs somewhat. In other words, one might see a "win-not-lose-so-much" scenario.).
397. Canada Shipping Act Regulation 26.
398. National Research Council Marine Board, supra note 15, ch. 5 (monitoring options are discussed).