Alaska v. Kerry
Alaska v. Kerry
Opinion of the Court
ORDER RE ALL PENDING MOTIONS
INTRODUCTION
The State of Alaska, later joined by the Resource Development Council for Alaska as a plaintiff-intervenor, initiated this action to challenge the federal enforcement of low-sulfur fuel requirements for marine vessels operating in certain Alaskan coastal waters.
The low-sulfur requirements were implemented pursuant to the United States’ obligations as a party country to the International Convention for the Prevention of Pollution from Ships, known as MARPOL. Annex VI of MARPOL designates certain emission control areas (“ECAs”) in which sulfur, nitrogen, and other vessel emis
One year later, on August 1, 2012, the Environmental Protection Agency (“EPA”) and the U.S. Coast Guard began jointly enforcing low-sulfur vessel fuel requirements in the North American ECA. As of that date, marine vessels within the North American ECA were required to use fuel with a sulfur content that does not exceed 10,000 parts per million (“ppm”). Beginning in 2015, marine vessels within the North American ECA will be required to use fuel with a sulfur content that does not exceed 1,000 ppm.
Currently pending before the Court are the State’s Motion for Preliminary Injunction and two motions to dismiss filed by the Federal Defendants. For the reasons discussed below, the Court grants the motions to dismiss and denies the motion for preliminary injunctive relief.
FACTUAL AND PROCEDURAL BACKGROUND
I. MARPOL.
MARPOL is a convention of the International Maritime Organization (“IMO”), a specialized United Nations agency.
MARPOL currently contains six annexes, each of which addresses a different type of marine pollution.
Annex VI designates ECAs, a term which it defines as:
an area where the adoption of special mandatory measures for emissions from ships is required to prevent, reduce and control air pollution from NOx or SOx and particulate matter or all three types of emissions and their attendant adverse impacts on human health and the environment. Emission control areas shall include those listed in, or designated under, regulations 13 and 14 of this Annex.7
Regulation 14 of Annex VI provides standards for sulfur oxides (Sox) emissions. It specifies that the sulfur content of fuel used on board ships in all areas shall not exceed “4.50% m/m prior to 1 January 2012,” “3.50% m/m on and after 1 January 2012,” and “0.50% m/m on and after 1 January 2020.”
II. United States’ Adoption and Implementation of MARPOL.
In 1980, MARPOL was approved by two-thirds of the Senate. Later that same year, Congress passed the Act to Prevent Pollution from Ships (“APPS”) to implement MARPOL.
III. Amendment of MARPOL to Include the North American ECA.
Appendix III to Annex VI was implemented by Congress in the 2008 amendments to APPS and sets forth criteria and procedures for designating ECAs.
MARPOL directs that a proposal for the designation of an ECA include the following:
• a description of the human populations and environmental areas at risk from the impacts of ship emissions;
• an assessment that emissions from ships operating in the proposed area of application are contributing to ambient concentrations of air pollution or to adverse environmental impacts. Such assessment shall include a description of the impacts of the relevant emissions on human health and the environment, such as adverse impacts to terrestrial and aquatic ecosystems, areas of natural productivity, critical habitats, water quality, human health, and areas of cultural and scientific significance, if applicable. The sources of relevant data including methodologies used shall be identified;
• relevant information, pertaining to the meteorological conditions in the proposed area of application, to the human populations and environmental areas at risk, in particular prevailing wind patterns, or to topographical, geological, oceanographic, morphological or other conditions that contribute to ambient concentrations of air pollution or adverse environmental impacts;
• the nature of the ship traffic in the proposed emission control area, in-*1116 eluding the patterns and density of such traffic;
• a description of the control measures taken by the proposing Party or Parties addressing land-based sources of NOx, SOx and particulate matter emissions affecting the human population and environmental areas at risk that are in place and operating concurrent with the consideration of measures to be adopted in relation to provisions of regulations 13 and 14 of Annex VI; and
• the relative costs of reducing emissions from ships when compared with land-based controls, and the economic impacts on shipping engaged in international trade.16
Appendix III also provides that “[t]he geographical limits of an emission control area will be based on the relevant criteria ... including emissions and deposition from ships navigating in the proposed area, traffic patterns and density, and wind conditions.”
On April 2, 2009, the United States and Canada submitted a 74-page joint petition to the IMO to create the following North American ECA, which would include certain designated Alaskan coastal waters
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The petition referenced a Technical Support Document (“TSD”) that had been published by the EPA in April 2009.
Article 16 of MARPOL outlines the IMO’s procedure for amending the convention.
In March 2010, the IMO voted to amend Annex VI to designate the North American ECA.
The ECA amendment was circulated to all MARPOL parties for acceptance. The United States Secretary of State did not reject the amendment, nor did any other party to MARPOL. As a result, the North American ECA entered into force as a matter of international law with respect to the United States and all other parties to MARPOL on August 1, 2011.
IV. EPA Action.
In January 2009, before the United States and Canada submitted their joint ECA petition to the IMO, EPA issued a Regulatory Update entitled “Frequently Asked Questions about the Emission Control Area Application Process” that expressed its intention to include the designated portion of Alaska in the North American ECA.
Will the coasts of Alaska and Hawaii (and other U.S. territories) be included in the application? If not, can they be included in the future?
Ideally, we would like to include all of the U.S. coasts in our application for ECA designation, including Alaska, Hawaii, and the U.S. territories. To do so, however, we will have to provide information that demonstrates a need for control, as specified in the criteria for ECA designation. This is challenging because, although our emissions modeling includes all 50 states, our air quality modeling does not extend beyond the 48 contiguous states. Therefore, it will be necessary to find other ways to measure the health and environmental impacts of marine emissions on health and human welfare outside the continental United States.
*1118 We have not made a final determination on whether the coasts of Alaska and Hawaii will be included in the initial U.S./Canada ECA application. We are working with the Alaska DEC and Hawaii DOH to generate information that would better inform us of the health and environmental impacts that shipping may have in these states. We have not yet engaged other U.S. territories on this issue.
We intend to submit an application for ECA designation at the earliest possible date covering the areas for which we have the strongest case. If the case for controlling additional areas is compelling, such areas would be included in a future, supplemental application for ECA designations.28
On August 28, 2009, after the ECA petition had been submitted but before the IMO had voted to amend Annex VI, EPA published a Notice of Proposed Rulemaking (“NPRM”) that included proposed rules to implement MARPOL’s low-sulfur requirements in the proposed North American ECA, including Alaskan coastal waters.
V. Procedural History.
The State of Alaska filed its initial Complaint in this action on July 13, 2012, followed by an Amended Complaint on July 16, 2012, and a Second Amended Complaint (“SAC”) on September 18, 2012.
The Resource Development Council for Alaska (“RDC”) intervened as a Plaintiff and two groups of entities intervened as Defendants: the Center for Biological Diversity, Environmental Defense Fund, Friends of the Earth, and Natural Resources Defense Council (collectively, “Environmental Defendants”) and the South Coast Air Quality Management District, Santa Barbara Air Pollution Control District, and Puget Sound Clean Air Agency (collectively, “Clean Air Defendants”).
RDC is a statewide nonprofit membership organization whose members include individuals and companies from Alaska’s oil and gas, mining, forest products, tourism, and fisheries industries.
The State filed a Motion for Preliminary Injunction on September 28, 2012, which was subsequently supported by RDC and opposed by all Defendants.
RDC filed its Intervenor Complaint on November 21, 2012. The Intervenor Complaint names all Defendants in this action, incorporates many of the facts alleged in the SAC by reference, and asserts three claims for relief that overlap with those asserted by the State in the SAC: (1) violation of the Treaty Clause, (2) violation of the nondelegation doctrine, and (3) violation of the separation of powers doctrine.
Briefing on all three motions concluded on March 12, 2013. Oral argument was not requested by any party and is not necessary to the Court’s determination of the motions.
DISCUSSION
The Court turns first to the Federal Defendants’ Motions to Dismiss, which
I. Dismissal Standard.
A. Civil Rule 12(b)(1).
Federal Rule of Civil Procedure 12(b)(1) allows a party to seek dismissal of a complaint for lack of subject matter jurisdiction. “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”
“A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.”
Challenges to subject matter jurisdiction can .take two forms, facial and factual, which the Ninth Circuit has explained as follows:
In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction.51
Here, Defendants have presented factual challenges to the Court’s subject matter jurisdiction over certain of the claims asserted. When ruling on a factual challenge to subject matter jurisdiction, the Court may consider material outside the pleadings.
B. Civil Rule 12(b)(6).
Federal Rule of Civil Procedure 12(b)(6) permits a party to seek dismissal of an action for failure to state a claim upon which relief can be granted. Under the “facial plausibility” pleading standard established by the Supreme Court in Ashcroft v. Iqbal, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’ ”
II. SAC Claim 1: Violation of APPS and the APA.
After the IMO adopts an amendment to MARPOL, it is not effective as a matter of domestic law unless and until it is accepted by the United States. Section 1909 of APPS provides the process within the United States for accepting or rejecting amendments to MARPOL:
(a) Acceptance of certain amendments by the President
A proposed amendment to the MAR-POL Protocol received by the United States from the Secretary-General of the International Maritime Organization pursuant to Article VI of the MARPOL Protocol, may be accepted on behalf of the United States by the President following the advice and consent of the Senate, except as provided for in subsection (b) of this section.
(b) Action on certain amendments by Secretary of State
A proposed amendment to Annex I, II, V, or VI to the Convention, appendices to those Annexes, or Protocol I of the Convention, received by the United States from the Secretary-General of the Inter-Governmental Maritime Organization pursuant to Article VT of the MARPOL Protocol, may be the subject of appropriate action on behalf of the United States by the Secretary of State following consultation with the Secretary, or the Administrator as provided for in this chapter, who shall inform the Secretary of State as to what action he considers appropriate at least 30 days prior to the expiration of the period specified in Article VI of the MARPOL Protocol during which objection may be made to any amendment received.
(c)Declaration of nonacceptance by the Secretary of State
Following consultation with the Secretary, the Secretary of State may make a declaration that the United States does not accept an amendment proposed pursuant to Article VI of the MARPOL Protocol.55
The SAC’s first cause of action asserts that the Secretary of State violated APPS by failing to take “appropriate action” on the ECA amendment, as required by Section 1909(b), and that the Secretary of State’s acceptance of the amendment violated the APA because it “was arbitrary and capricious, an abuse of discretion, in excess of statutory authority, and otherwise not in accordance with law.”
The Defendants assert that this claim merits dismissal under Civil Rule 12(b)(1) because the Court lacks subject matter jurisdiction to review this claim. They
A. Political Question Doctrine.
The Ninth Circuit has held that the political question doctrine “is at bottom a jurisdictional limitation imposed on the courts by the Constitution.”
The Ninth Circuit explained in Corrie v. Caterpillar:
The political question doctrine first found expression in Chief Justice Marshall’s observation that “[qjuestions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170, 2 L.Ed. 60 (1803). The Supreme Court has since explained that “[t]he nonjusticiability of a political question is primarily a function of the separation of powers.” Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).60
The conduct of foreign relations “is committed by the Constitution to the executive and legislative [branches] ... and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.”
In Baker v. Carr, the plaintiffs sought a declaration that a state apportionment statute was an unconstitutional deprivation of equal protection. The district court had found the claim nonjusticiable under the political question doctrine. The Supreme Court, after conducting an extensive review of prior case law on the subject, held that six factors should be considered in evaluating whether the political question doctrine bars suit:
[1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the*1123 impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.
... Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence.65
In Baker, the Supreme Court ultimately concluded that the plaintiffs’ claim was justiciable. And yet since then, Baker has been the dominant authority on the political question doctrine.
Under Baker, if any one of its six factors is “inextricable from the case at bar,” then dismissal of the action is warranted. Three of the factors are at issue here: the second, fourth, and sixth Baker factors.
i Baker Factor Two: Lack of Judicially Discoverable and Manageable Standards.
The Federal Defendants assert that Sections 1909(b) and (c) of APPS “do not include judicially manageable standards for reviewing the Secretary of State’s decisions.”
(a) Relevance of Appendix III Criteria.
The State asserts that if the Court adopts its interpretation of APPS, “then there is plenty of law to apply” because “the Court can assess whether the ECA proposal that the Secretary of State accepted complied with the very specific requirements of MARPOL and Appendix III.”
The State cites to legislative history indicating the Senate expected that the “United States may seek the establishment of one or more [ECAs] in the United States pursuant to the procedures set out in Appendix III to Annex VI.”
Congress implemented the convention through the Endangered Species Act of 1973 (“ESA”). The ESA directed the President to establish the two authorities which “shall do all things necessary and appropriate to carry out the functions of the [authorities] under the Convention.”
The D.C. Circuit held the case was justiciable. It determined that Congress had implemented the convention. And it cited the ESA’s directive that the Secretary of the Interior “shall do all things necessary and appropriate” to carry out the functions of the Scientific Authority and Management Authority under the convention. As a result, “the Convention [was] ‘a source of rights enforceable by an individual litigant in a domestic court of law1 ” pursuant to Administrative Procedure Act,
Citing Defenders, the State asks this Court to “find that the Secretary of State’s duty under APPS to take ‘appropriate action’ makes Appendix III a source of enforceable rights” and to “set aside the Secretary of State’s acceptance of the ECA ... because the ECA proposal did not comply with Appendix III.”
Defenders holds that a court may review agency actions, undertaken pursuant to implementing legislation that specifically mandates the agency’s compliance with an international agreement, to ensure that those actions are consistent with the implementing law that incorporates the international agreement. This Court does not read Defenders as holding that a court may or should review an agency action that simply accepts an amendment to an international agreement to ensure that the amendment is consistent with other provisions of the international agreement.
The State also asserts that the Ninth Circuit’s decision in Hopson v. Kreps involved a similar question.
The Hopson court defined the “particular question posed” as “whether the Commerce Department exceeded limits on its statutory authority in promulgating [the]
Here, by contrast, Plaintiffs are not challenging the Secretary of State’s authority to accept MARPOL Annex amendments.
The Ninth Circuit was careful to identify Hopson as an exception to Baker, and explained that it was looking to the IWC only to ascertain whether the DOC had been authorized to implement the regulations. The court wrote that “although ‘(i)t is the role of the judiciary to interpret international treaties and to enforce domestic rights arising from them,’ treaties are relevant to the interpretation of congressional enactments only to the extent that Congress makes them relevant.”
Accordingly, the Court finds that APPS’s authorization to the Secretary that he “may” take “appropriate action” does not require the Secretary of State to independently apply the criteria of Appendix III. As a result, Appendix III does not provide “judicially discoverable and manageable standards” for the Court to apply in evaluating the Secretary of State’s action.
(b) Meaning of “Appropriate Action. ”
The State next argues that even if “appropriate action” does not refer to the Appendix III criteria, the Court must — as a matter of statutory construction — attribute some meaning to Section 1909(b)’s “appropriate action” language in order to avoid rendering that language superflu
The State cites to the Supreme Court’s decision in Zivotofsky ex rel. Zivotofsky v. Clinton as authority for its assertion that this question of statutory interpretation is not barred by the political question doctrine.
The State also asserts that the Ninth Circuit’s decision in Center for Policy Analysis on Trade and Health (“CPATH”) v. Office of U.S. Trade Representative, “makes it clear that determining whether a particular statute provides justiciable standards requires a close examination of the statute’s language, legislative history, and other indicia of legislative intent.”
Accordingly, the second Baker factor supports the Defendants’ assertion that the SAC’s first cause of action is nonjusticiable.
ii. Baker Factor Four: Impossibility to Review Without Expressing Lack of Respect.
The Federal Defendants assert that “judicial evaluation of the Secretary’s decision would express a lack of respect due Congress and the Executive” because it “would interfere with the statutory accommodation established by the political branches in section 1909 for the United States’ acceptance or rejection of amendments to certain annexes to MARPOL.”
The State asserts that “courts routinely adjudicate statutory claims.”
The Federal Defendants respond that here, Congress chose not to place statutory limits on the Secretary of State’s discretion.
The Court finds that the language of APPS and the legislative history of Section 1909 clearly indicate that Congress intended to place decisions on MARPOL Annex amendments within the Secretary of State’s discretion. Accordingly, judicial
Hi Baker Factor Six: Potentiality of Embarrassment from Multifarious Pronouncements.
The Clean Air Defendants assert that a judicial action overturning the Secretary of State’s acceptance of the ECA proposal that was submitted by the United States “clearly presents the ‘potentiality of embarrassment from multifarious pronouncements by various departments on one question,’ which typifies a political question.”
If the United States now refuses to do what it has asked of others and objects to a restraint recommended by the Scientific Committee of the International Whaling Commission despite an early opportunity for review, this government’s credibility and leadership in international whale conservation would be severely compromised. Foreign governments would regard this U.S. objection to the very first amendment which affects a U.S. domestic interest as evidence of U.S. hypocrisy on whale conservation. Other governments would be less likely to credit U.S. determination to act forcefully on future issues of whale conservation. The weakening of U.S. leadership in this field would make it much more difficult for the United States to achieve its long term objectives for international cooperation in respect to conservation of whales. It is possible that an objection by the United States at this time could lead to a cycle of objections by others which would damage the effectiveness of the established quota system.107
The record in this case contains the Declaration of David A. Balton, the Deputy Assistant Secretary for Oceans and Fisheries in the Bureau of Oceans and International Environmental and Scientific Affairs at the Department of State. Mr. Balton’s testimony expresses concerns remarkably similar to those expressed by the Assistant
The United States has a very significant and ongoing foreign policy and national security interest in demonstrating to other nations that our nation complies with its legal obligations under treaties and other binding international instruments .... Additionally, in the MAR-POL context itself, a perception that the United States has not met its obligations would give rise to concern by other parties, including close friends and allies, that the United States may similarly renege on obligations stemming from other amendments to MARPOL Annexes.
The foreign policy consequences from the perception that the United States has failed to meet its obligations with respect to the North America ECA are particularly acute because that ECA was initiated, promoted, pursued, and adopted at the urging of the United States. If we are seen as failing to implement the terms of our own initiative, it would seriously compromise the credibility and leadership role of the United States among other parties to MARPOL, among other IMO members and, more broadly, in our efforts to promote international norms to reduce marine pollution. We would expect close allies like Canada and France, who had partnered with the United States in promoting this ECA, to view our conduct as undermining an important joint initiative, which was intended to reduce pollution affecting not only U.S. interests but also Canadian and French ones. Other countries that supported the United States’ proposal for a North American ECA would likely view the United States’ non-implementation negatively and question whether and how closely to support similar initiatives by the United States in the future. Finally, if the United States, as a central country in the North American ECA, were perceived as not implementing its obligations with respect to this ECA, it could weaken the incentives for other parties to abide by their obligations relating to the ECA and undermine the efficacy of the ECA and MARPOL more generally. A weakening of this longstanding and carefully crafted international legal framework to combat marine pollution would directly harm the interests of the United States in protecting our waters and coastline and the well-being of the many people and industries in the United States that depend on them.110
The Court finds that Mr. Balton’s Declaration provides persuasive evidence that the sixth Baker factor is implicated here.
The Court has determined that three Baker factors are inextricable from the
B. Agency Discretion.
Even if the political question doctrine did not bar review of the SAC’s first claim, the Federal Defendants assert that a provision in the Administrative Procedure Act also renders the claim unreviewable.
i. No Law to Apply.
In Heckler v. Chaney, the Supreme Court analyzed the APA’s language, acknowledging the apparent contradiction of barring review of “action committed to agency discretion” and adopting “abuse of discretion” as the standard for reviewable agency action.
[E]ven where Congress has not affirmatively precluded review, review is not to be had if the statute is drawn so that a court would have no meaningful standard against which to judge the agency’s exercise of discretion. In such a case, the statute (“law”) can be taken to have “committed” the decisionmaking to the agency’s judgment absolutely. This construction avoids conflict with the “abuse of discretion” standard of review in § 706 — if no judicially manageable standards are available for judging how and when an agency should exercise its discretion, then it is impossible to evaluate agency action for “abuse of discretion.”117
As this exception depends on the existence of “judicially manageable standards,” it overlaps significantly with the second Baker factor. The Court discussed this factor above and determined that APPS does not provide • judicially manageable standards by which to review the Secretary of State’s decision to accept the ECA amendment.
The Federal Defendants maintain that APPS’s use of the permissive word “may” indicates Congress’ recognition of “the Secretary of State’s broad discretion to make decisions on the proposed amend
The Supreme Court has held that, as a principle of statutory construction, “[t]he word ‘may,’ when used in a statute, usually implies some degree of discretion.”
In Southern Railway Co. v. Seaboard Allied Milling Corp., the Supreme Court considered a statute that provided the agency “may, upon the complaint of an interested party or upon its own initiative, order a hearing.”
The State attempts to distinguish the cases cited by the Federal Defendants, asserting that many of them “involve agencies acting in an enforcement capacity and say nothing about the reviewability of the Secretary of State’s decision to accept the ECA amendment.”
The State also argues that APPS’s use of “may” only gives the Secretary of State discretion to choose between 33 U.S.C. § 1909(b) or (c), not to determine how to proceed within (b).
The Supreme Court has qualified the general construction of “may” as implying discretion, holding that this principle “can be defeated by indications of legislative intent to the contrary or by obvious inferences from the structure and purpose of the statute.”
Based on the foregoing, the Court finds that Section 1909(b) provides no law to apply, and therefore the decision to accept the ECA amendment was committed to the Secretary of State’s discretion.
ii. Complicated Balancing of Factors.
In Newman v. Apfel, the Ninth Circuit explained the second circumstance in which the Supreme Court has determined that the limited exception of judicial nonreviewability pursuant to 5 U.S.C. § 701(a)(2) applies: “that in which the agency’s action requires ‘a complicated balancing of a number of factors which are peculiarly within [the agency’s] expertise’ including the prioritization of agency resources, likelihood of success in fulfilling the agency’s statutory mandate, and compatibility with ‘the agency’s overall poli
The Federal Defendants maintain that this exception applies here as well because “broad reservations of discretion to the Executive Branch regarding foreign relations are not uncommon and ... actions taken pursuant to such reservations typically are exempt from judicial review.”
However, Heckler applied this exception specifically to an agency’s decision not to act.
C. Conclusion as to SAC Claim 1.
For the foregoing reasons, Claim 1 of the SAC is dismissed for lack of subject matter jurisdiction. Accordingly, the Court will not address Defendants’ alternative arguments under Rule 12(b)(6).
III. SAC Claim 2 and Intervenor Complaint Claims 1-3.
The second cause of action in the SAC asserts that “[ujnder the Treaty Clause and the separation of powers doctrine, the Secretary of State and EPA cannot unilaterally convert an international obligation like the ECA amendment into domestic federal law.”
Similarly, the first cause of action in the Intervenor Complaint asserts that the Secretary of State’s failure to obtain the advice and consent of the Senate before accepting the ECA amendment and APPS— to the extent it authorizes such action— violate the Treaty Clause.
Together, the Intervenor Complaint’s first three causes of action and the SAC’s second cause of action assert that the ECA amendment should not be given effect because the Secretary of State lacked the constitutional authority to accept it. The Federal Defendants moved to dismiss all four claims under Rule 12(b)(1) and Rule 12(b)(6). Given the overlapping nature of these claims, the Court addresses them together.
A. Enforceability of the ECA Amendment in the United States.
The Treaty Clause of the United States Constitution allows the President to make international treaties “by and with the Advice and Consent of the Senate.”
As a jurisdictional threshold matter, the Federal Defendants and the Clean Air Defendants maintain that the political question doctrine bars this Court from reviewing whether an international agreement must follow the advice-and-consent process of the Treaty Clause.
The Federal Defendants and the Clean Air Defendants rely heavily on Made in the USA Foundation v. United States, where the Eleventh Circuit determined that whether the North American Free Trade Agreement (“NAFTA”) was a “treaty” and thus subject to the requirements of the Treaty Clause was a nonjusticiable political question.
The Federal Defendants also make arguments under Baker and the Supreme Court’s subsequent discussion of Baker in Goldwater v. Carter, asserting that reviewing this claim would implicate foreign policy and other prudential concerns.
ii. Senate Approval.
The SAC asserts that the Secretary of State’s acceptance of the ECA amendment “did not create domestic federal law under the Treaty Clause ... because it was not made by the President with the advice and consent of the Senate.”
Preliminarily, the parties dispute whether Congress intended renewed Senate advice and consent to be part of the aceep
This rapid amendment process provides for relatively rapid updating of technical provisions without requiring the traditional, but more cumbersome, treaty revision process that will still be required for the MARPOL Protocol Articles. This rapid amendment process is necessary to stay abreast of new technology, thereby ensuring effective control of pollution from ships operating in the marine environment.171
The Federal Defendants assert that “RDC fails to acknowledge [a] threshold, dispositive textual issue,” which is that a limitation to technical amendments does not appear in the statutory language of APPS.
The Court finds that overall, the parties’ citations clearly indicate the Senate was aware that certain types of amendments would be approved without further Senate involvement. This Court need not determine exactly what references to “technical” amendments in the House committee report may have meant, as the plain language of the statute is unambiguous and therefore dispositive: 33 U.S.C. § 1909(a) specifically requires “the advice and consent of the Senate” for amendments to MARPOL proper.
in. Congressional Implementation of the ECA Amendment.
The SAC also asserts that “[t]he ECA amendment ... never became domestic federal law because it was never implemented pursuant to legislation passed by both houses of Congress.”
The State relies on Medellin v. Texas to support its arguments.
The Federal Defendants distinguish Medellin from the present action, pointing out that Medellin turned on whether the relevant treaties were self-executing, as it was undisputed that no implementing legislation existed.
The Federal Defendants assert that “[t]o the extent Alaska is arguing that implementing legislation can only render an international commitment enforceable if Congress passes such legislation following the negotiation and conclusion of the international commitment, that is equally wrong. Congressional ex ante authorization for international agreements extends to the earliest days of the nation.”
The State acknowledges that “it appears that the Executive has accepted regulations and amendments to international agreements and treaties that purport to be
The legislative history of APPS supports this interpretation. The State asserts that when the Senate approved Annex VI in 2006, senators stated that Annex VI “‘will require implementing legislation,’ ” which the State argues indicates they “implicitly prohibited the executive branch from unilaterally making any of the treaty obligations in Annex VI — including any obligations flowing from amendments — domestic federal law.”
Accordingly, the Court finds that when the Senate approved Annex VI, and when Congress passed the amended version of APPS implementing Annex VI, they in
B. Constitutionality of APPS.
The Court’s inquiry does not end with this Court’s determination that APPS authorized the Secretary of State to accept the ECA amendment without further congressional action, for Plaintiffs also assert that if APPS is interpreted to permit the executive’s ex ante implementation of the ECA amendment, then the statute is unconstitutional because it violates the Treaty Clause. That Clause accords to the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”
RDC asserts that “amendment of treaties, no less than initial acceptance, must conform with the Treaty Clause.”
Essentially, the State and RDC contend that Congress and the Senate improperly delegated their treaty-approval and legislative powers to the IMO and the executive branch. The Supreme Court has explained that “[t]he Constitution sought to divide the delegated powers of the new federal government into three defined categories, legislative, executive and judicial, to assure, as nearly as possible, that each Branch of government would confine itself to its assigned responsibility.”
Here, Plaintiffs assert that Congress’s delegation of authority to the Secretary of State to accept the ECA amendment was unconstitutional under the nondelegation doctrine. “[F]ederal Statutes enjoy a presumption of constitutionality.”
i. Delegation to the IMO.
The Intervenor Complaint asserts in its second cause of action that “APPS amounts to an unconstitutional delegation of Congress’s lawmaking authority to an unaccountable international organization.”
The Federal Defendants disagree because “[i]t is not the actions of the IMO, but rather the actions of the executive branch in the international sphere and Congress in the domestic sphere, that result in an amendment like the ECA designation becoming binding and enforceable in the United States.”
RDC asserts, citing Wileman Brothers & Elliott, Inc. v. Giannini, that the Ninth Circuit has held that “failure to exercise a right of disapproval does not have the same legal effect as affirmative approval.”
The Ninth Circuit first held that because the committee lacked the authority to promulgate fruit maturity standards on its own, the defendants’ actions were not covered by the provision of the Act granting immunity to committee members for authorized actions.
RDC asserts that here, APPS allowed the ECA amendment to enter into force when the Secretary of State failed to reject it. RDC maintains that under Wile-man Brothers, this failure to disapprove is not legally equivalent to an affirmative act of acceptance; and that, as a result, APPS impermissibly allowed the IMO — and not the Secretary of State — to create domestic federal law. However, Wileman Brothers did not concern the constitutionality of the legal framework for setting fruit maturity standards. The Secretary of Agriculture’s non-disapproval of the fruit maturity standards at issue was relevant only to the extent that it might shield the defendants from liability. Consequently, Wileman Brothers does not support RDC’s argument that APPS is an unconstitutional delegation to the IMO because it does not require affirmative action by the Secretary of State.
The Court finds that the provisions of 33 U.S.C. § 1909 give the Secretary of State the discretion to accept or reject a MAR-POL Annex amendment and do not imper
ii. Delegation to the Secretary of State.
The SAC’s second cause of action and the Intervenor Complaint’s third cause of action assert that to the extent APPS allows the Secretary of State to accept an amendment to Annex VI that then becomes enforceable domestic law, APPS unconstitutionally yields its lawmaking power and the Senate’s treaty-making role to the executive branch.
RDC asserts that “[a]s Defendants describe APPS’s operation, the executive branch has sole power to propose amendments to the IMO; the exclusive power to decide whether amendments will become effective for the U.S.; and the power to execute and implement amendments as part of U.S. law.” It maintains that “[t]his sweeping executive authority encompasses legislative power that belongs to Congress.”
The touchstone for delegations of power is the intelligible principle test. In Mistretta v. United States, the Supreme Court addressed a challenge to the U.S. Sentencing Guidelines, promulgated by the U.S. Sentencing Commission, on separation of powers and nondelegation grounds.
Here, the Federal Defendants assert that “the limitation of [the Secretary of State’s] discretion to specified annexes to MARPOL, and hence to the type and content of amendments that would be proposed ■ to those annexes, provides a bounded and intelligible principle.”
As discussed above, the Court has determined that 33 U.S.C. § 1909(b) does not contain any “judicially manageable or discoverable standards” by which the Court could evaluate the Secretary of State’s decision.
Moreover, “[t]he Supreme Court has repeatedly underscored that the intelligible principle standard is relaxed for delegations in fields in which the Executive has traditionally wielded its own power.”
The Federal Defendants assert that “[hjere, Alaska’s challenge is to a statutory provision addressing the Secretary of State’s actions with respect to a treaty.”
RDC maintains that the Federal Defendants “rely on authorities involving the [executive’s] power to take actions to promote the national security or respond to wartime situations, circumstances obviously not present here.”
Although the source of the President’s power to act in foreign affairs does not enjoy any textual detail, the historical gloss on the “executive Power” vested in Article II of the Constitution has recognized the President’s “vast share of responsibility for the conduct of our foreign relations.” While Congress holds express authority to regulate public and private dealings with other nations in its war and foreign commerce powers, in foreign affairs the President has a degree of independent authority to act.238 Particularly in light of the clear commitment of foreign affairs to the executive branch, and the limitations on the Secretary of State’s actions implicit in 33 U.S.C. § 1909, the Court finds that APPS does not violate the nondelegation doctrine.
It follows that by allowing the Secretary of State to accept the ECA amendment, Congress did not circumvent or ignore the requirements of the Treaty Clause; rather, through their ex ante approval of future MARPOL Annex amendments, the Senate and Congress constitutionally delegated their powers to the Secretary of State.
C. Conclusion as to SAC Claim 2 and Intervenor Complaint Claims 1-3.
Given the foregoing analysis, the Court finds that the SAC’s second cause of action and the Intervenor Complaint’s first, second, and third causes of action fail to state a claim upon which relief can be granted and thus merit dismissal under Rule 12(b)(6).
IV. SAC Claim 4.
The parties agree that the ECA amendment, and not any action by EPA, designated the North American ECA. Accordingly, the State has voluntarily dismissed the SAC’s third cause of action.
(i) the navigable waters or the exclusive economic zone of the United States;
(ii) an emission control area designated pursuant to section 1903 of this title; or
(iii) any other area that the Administrator, in consultation with the Secretary and each State in which any part of the area is located, has designated by order as being an area from which emissions from ships are of concern with respect to protection of public health, welfare, or the environment.242
The State construes this statute to mean that “APPS only applies to foreign-flagged ships when those ships are in an ECA ‘designated under section 1903’ , of APPS.”
The Federal Defendants maintain that Alaska’s “assertion that ECAs need to be designated through an EPA rulemaking under section 1903 of APPS is simply incorrect under the APPS’ terms and, even if such rulemaking were necessary, the APA’s ‘foreign affairs’ exception exempts such actions from notice and comment requirements.”
The Environmental Defendants assert that “[b]ecause the list of areas [in 33 U.S.C. § 1902] is disjunctive, if a foreign-flagged ship is in any one of the areas described it is subject to the Act.”
In the Marine Diesel Rule, EPA explained that the Rule applied within the North American ECA submitted to the IMO, which it described as follows: “The area included in the North American ECA submittal to IMO for ECA designation generally extends 200 nautical miles from the coastal baseline.”
The State argues that under this interpretation, the “latter sections [that] also apply APPS to foreign-flagged ships in ‘an emission control area designated under section 1903’ would not add anything to the reach of APPS because the United States cannot designate by domestic rule-making an ECA applying to foreign-flagged ships outside the navigable waters or exclusive economic zone of the United States.”
The Court finds that the plain language of 33 U.S.C. § 1902 applies Annex VI to vessels within the United States EEZ and navigable waters, without exception.
CONCLUSION
For the foregoing reasons, the Court orders as follows:
1. The Federal Defendants’ Motion to Dismiss Alaska’s Second Amended Complaint at Docket 48 is GRANTED.
2. The Federal Defendants’ Motion to Dismiss Complaint in Intervention of Intervenor-Plaintiff Resource Development Council for Alaska at Docket 70 is GRANTED.
3. The State of Alaska’s Motion for Preliminary Injunction at Docket 15 is DENIED as moot.
4. The Clerk of Court is directed to enter a Judgment in accordance with this Order.
. Docket 9 ("SAC”) ¶ 1.
. Until 1982, IMO was known as the InterGovernmental Maritime Consultative Organization.
. Dockets 9-1, 9-2 (SAC Exs. A, B).
. Docket 9-1 (SAC Ex. A).
. Annex I addresses oil; Annex II, noxious liquid substances carried in bulk; Annex III, harmful substances carried in packaged form; Annex IV, sewage; and Annex V, garbage.
. Docket 9-3 at 1 (MARPOL Annex VI).
. Docket 9-3 at 3.
. Docket 9-3 at 16 (Annex VI, Reg. 14(1)).
. Docket 9-3 at 17 (Annex VI, Reg. 14(4)).
. Docket 19 at 9 (citing 126 Cong. Rec. S9263-72 (daily ed. July 2, 1980)); 33 U.S.C. § 1901 et seq.
. SAC ¶ 20; Docket 19 at 9 (citing SAC Ex. C; 152 Cong. Rec. S3400 (daily ed. April 7, 2006); Pub A. 110-280, 122 Stat. 2611 (2008)).
. SAC ¶¶ 20, 28.
. Docket 9-3 at 30 (Annex VI, Appendix III).
. Docket 9-3 at 30 (Annex VI, Appendix 111(1X1-3)).
. Docket 9-3 at 30 (Annex VI, Appendix IH(2)-(4)).
. Docket 9-3 at 30-31 (Annex VI, Appendix III(3.1)(2)(3)-(8)).
. Docket 9-3 at 31 (Annex VI, Appendix 111(3.2)).
. The petition is available at http://www.epa. gov/nonroad/marine/ci/mepc-59-ecaproposal.pdf.
. The TSD is available at http://www.epa. gov/oms/regs/nonroad/marine/ci/420r09007. pdf.
. Docket 9-1 at 12.
. Docket 9-1 at 12-13 (Article 16(2)).
. Docket 9-1 at 13-14 (Article 16(2)).
. SAC ¶ 28.
. Docket 9-3 at 16 (Annex VI, Reg. 14(3)(2)).
. Docket 9-3 at 36-43 (Annex VI, Appendix VII).
. SAC ¶ 28; cf. Pac. Merch. Shipping Ass’n v. Goldstene, 639 F.3d 1154, 1160-61 (9th Cir. 2011) ("On March 27, 2009 ... Canada and the United States jointly proposed, pursuant to the procedures established by the International Maritime Organization ("IMO”), that an Emissions Control Area ("ECA”) be established under Annex VI of the International Convention for the Prevention of Pollution from Ships ("MARPOL”). The IMO, which is responsible for administering the treaty, evidently adopted the joint proposal on March 26, 2010.... This action makes the ECA binding on all treaty signatories.”), cert. denied, -U.S.-, 133 S.Ct. 22, 183 L.Ed.2d 675 (2012).
.SAC ¶ 25; Docket 19 at 12. The Regulatory Update is available at http://www.epa.gov/ nonroad/marine/ci/420f09001 .pdf.
. Regulatory Update at 5.
. SAC ¶ 30; Docket 19 at 16-17 (citing Control of Emissions from New Marine Compression-Ignition Engines at or Above 30 Liters per Cylinder, 74 Fed.Reg. 44442 (Aug. 28, 2009)).
. Docket 19 at 17-18 (citing SAC If 31 and Exs. D, E, F).
.SAC ¶ 32; Docket 19 at 18, 20.
. Control of Emissions from New Marine Compression-Ignition Engines at or Above 30 Liters per Cylinder, Final Rule (“Marine Diesel Rule”), 75 Fed.Reg. 22896, 22896 (Apr. 30, 2010).
. Dockets 1, 5, 9.
. SAC ¶¶ 44-61.
. Docket 79 at 41 ("[T]he State agrees that its third cause of action should be dismissed.”).
. SAC ¶ 1.
. Docket 55.
. Docket 60 (‘‘Intervenor Compl.”) ¶ 11.
. Docket 13 at 4-5.
.Docket 33 at 7-8.
. Dockets 15, 61, 41, 52, 57.
. Dockets 48, 77.
. Intervenor Compl. ¶¶ 32-41.
. Intervenor Compl. ¶¶ A-C.
. Dockets 70, 83.
. Dockets 48, 70.
. Arbaugh v. Y & H Corp., 546 U.S. 500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting Fed.R.Civ.P. 12(h)(3)).
. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
. A-Z Int’l v. Phillips, 323 F.3d 1141, 1145 (9th Cir. 2003) (quoting Stevedoring Servs. of Am., Inc. v. Eggert, 953 F.2d 552, 554 (9th Cir. 1992)).
. In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994); Stock W., Inc. v. Confederated Tribes of the Colville Reservation, 873 F.2d 1221, 1225 (9th Cir. 1989)).
. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (quoting Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004)).
. Ass'n of Am. Med. Colls. v. United States, 217 F.3d 770, 778 (9th Cir. 2000) (quoting St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989)).
. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
. Rouse v. U.S. Dep’t of State, 567 F.3d 408, 411 (9th Cir. 2009) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)).
. 33 U.S.C. § 1909. The Secretary referred to in the phrase "consultation with the Secretary” in both subsections (b) and (c) is "the Secretary of the department in which the Coast Guard is operating.” See 33 U.S.C. § 1901(a)(ll).
.SAC ¶¶ 45-46.
. Docket 49 at 16. The Defendants also assert that even if the Secretaiy of State’s action is subject to judicial review, the claim should be dismissed under Rule 12(b)(6) because the ECA amendment had a valid scientific basis and therefore complied with Appendix III.
. Corrie v. Caterpillar, Inc., 503 F.3d 974, 981 (9th Cir. 2007).
. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).
. Corrie, 503 F.3d at 980.
. Id. at 982 (quoting Oetjen v. Cent. Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918)).
. Id. (quoting Baker v. Carr, 369 U.S. 186, 211, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)).
. Id. (quoting Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230, 106 S.Ct. 2860, 92 L.Ed.2d 166 (1986)).
. Id. (quoting Alperin v. Vatican Bank, 410 F.3d 532, 545 (9th Cir. 2005)).
. Baker, 369 U.S. at 217, 82 S.Ct. 691.
. Docket 49 at 31.
. Docket 79 at 11.
. Docket 19 at 24.
.Docket 19 at 24.
. Docket 19 at 25 (citing S. Exec. Rep. No. 109-13, at 4 (2006)).
. Docket 19 at 26.
. Docket 19 at 26.
. Docket 19 at 27 (citing Defenders, 659 F.2d 168 (D.C.Cir. 1981)); Docket 79 at 13 (same).
. Defenders, 659 F.2d at 174.
. Id. at 172 n. 2.
. Id. at 175.
. Id. at 174-75 (quoting People of Saipan v. U.S. Dep't of Interior, 502 F.2d 90, 97 (9th Cir. 1974)).
. Administrative Procedure Act § 706(2)(A), 5 U.S.C. § 706(2)(A) (2012).
. Docket 19 at 27-28.
. Cf. 33 U.S.C. § 1903(c)(1) ("The Secretary shall prescribe any necessary or desired regulations to carry out the provisions [of MAR-POL].”).
. Cf. Docket 41 at 12 (Clean Air Defendants’ Opp. to Mot. for Injunctive Relief) ("There is no indication that Congress intended the Secretary to second-guess the evidence supporting a proposal submitted by the United States itself and duly approved by the authorized agency, the International Maritime Organization.”).
. Docket 79 at 21 (citing Hopson, 622 F.2d 1375 (9th Cir. 1980)).
. Hopson, 622 F.2d at 1376-77.
. Id. at 1379.
. Id. (citing United States v. Decker, 600 F.2d 733, 737 (9th Cir. 1979)).
. Id. at 1378 (citing Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)).
. The State and RDC do dispute the constitutionality of APPS’s delegation of authority, but that implicates different causes of action which are discussed separately infra.
. Hopson, 622 F.2d at 1380 (emphasis added) (internal citation omitted) (quoting Decker, 600 F.2d at 737).
. Id. (emphasis added) (quoting L. Henkin, Foreign Affairs and the Constitution 159 (1972)).
. Docket 79 at 15-16.
. Docket 79 at 17 (citing Zivotofsky,-U.S. -, 132 S.Ct. 1421, 182 L.Ed.2d 423 (2012)); cf. Docket 52 at 31 (citing Zivotofsky in passing for another purpose).
. Zivotofsky, 132 S.Ct. at 1424.
. Id. at 1427.
. Id. at 1427-30.
. Docket 79 at 19 (citing CPATH, 540 F.3d 940, 946 (9th Cir. 2008)).
. Docket 57 at 19.
. As the Supreme Court has noted, "[i]t is difficult to draw any meaningful guidance from [the Clean Water Act's] use of the word ‘appropriate,’ which means only ‘specifically suitable: fit, proper.’ Webster’s Third International Dictionary.” Ruckelshaus v. Sierra Club, 463 U.S. 680, 683, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983). The Court also cited with approval to a Circuit Judge who had noted "the absence of any clue as to the meaning of ‘appropriate,’ ” and that "there is no comprehensible or principled meaning for ‘appropriate.’ ” Id. at 683 n. 2, 103 S.Ct. 3274 (quoting Ala. Power Co. v. Gorsuch, 672 F.2d 1, 24, 32 (D.C.Cir. 1982)).
. Docket 93 at 12, 18-19.
. Docket 79 at 20.
. Docket 79 at 20.
. Docket 93 at 19.
. Docket 93 at 19.
. Docket 41 at 14 (quoting Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Made in the U.S.A. Found. v. United States, 242 F.3d 1300, 1318 (11th Cir. 2001)).
. Docket 41 at 13 (citing Adams, 570 F.2d 950 (D.C.Cir. 1978)).
. Adams, 570 F.2d at 952.
. Id.
. Id. at 956 n. 13.
. Docket 52-3 (Ex. C to U.S. Opp. Br.).
. Docket 52-3 at 1, ¶¶ 1-2.
. Docket 52-3 at 3, ¶¶ 7-8.
. Cf Docket 41 at 13-14 (Clean Air Defs.) ("It must be remembered that the ECA ravolves the interests of Canada as well as the United States. An order invalidating the Secretary's acceptance would implicate foreign policy and foreign commerce considerations that raise a political question.”).
. Docket 52 at 38 (citing 5 U.S.C. § 701(a)(2)); Docket 93 at 22 (same).
. Lincoln v. Vigil, 508 U.S. 182, 190, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993).
. Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 410, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
. Docket 52 at 38. The Clean Air Defendants also briefly addressed the first argument. Docket 41 at 14-15.
. 470 U.S. 821, 829, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985).
. Id. at 830, 105 S.Ct. 1649.
. See supra at 1123-28.
. Docket 49 at 31.
. Docket 49 at 32.
. Docket 49 at 32.
. United States v. Rodgers, 461 U.S. 677, 706, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983); cf. Martin v. Franklin Capital Corp., 546 U.S. 132, 136, 126 S.Ct. 704, 163 L.Ed.2d 547 (2005) (in the context of court-awarded attorney's fees, explaining that "[t]he word 'may' clearly connotes discretion” (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 533, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994))).
. 550 U.S. 501, 503, 127 S.Ct. 2011, 167 L.Ed.2d 888 (2007) (quoting 26 U.S.C. § 6404(e)(1) (1994 ed.)).
. Id.
. Id. at 504, 127 S.Ct. 2011 (quoting Selman v. United States, 941 F.2d 1060, 1063 (10th Cir. 1991)).
. Id. (internal citation omitted).
. 442 U.S. 444, 455, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) (quoting 49 U.S.C. § 15(8)(a)).
. Id. at 454, 99 S.Ct. 2388 (internal citations omitted) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 18 L.Ed.2d 681 (1967), abrogated by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)).
. Id. at 455-56, 99 S.Ct. 2388.
. Id. at 456-60, 99 S.Ct. 2388.
. Docket 79 at 29. Notably, in its briefing on the political question doctrine, the State cites to enforcement cases as controlling precedent to support its argument that APPS imports the Appendix III criteria.
. Docket 79 at 29.
. See supra at 1123-28.
. Docket 79 at 29 (citing Heckler, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985)).
. Heckler, 470 U.S. at 831, 105 S.Ct. 1649.
. Hinck v. United States, 550 U.S. 501, 504, 507, 127 S.Ct. 2011, 167 L.Ed.2d 888 (2007) ("It is true that by providing an abuse-of-discretion standard, Congress removed one of the obstacles courts had held foreclosed judicial review of [abatement] determinations.”).
. Docket 79 at 27.
. Docket 79 at 27-28 (emphasis in original).
. United States v. Rodgers, 461 U.S. 677, 706, 103 S.Ct. 2132, 76 L.Ed.2d 236 (1983).
. E.g., 33 U.S.C. § 1908(b) ("In determining the amount of the penalty, the Secretary, or the Administrator as provided for in this chapter, shall take into account the nature, circumstances, extent, and gravity of the prohibited acts committed and, with respect to the violator, the degree of culpability, any history of prior offenses, ability to pay, and other matters as justice may require.”); cf. S. Ry. Co. v. Seaboard Allied Milling Corp., 442 U.S. 444, 456, 99 S.Ct. 2388, 60 L.Ed.2d 1017 (1979) (“Congress did not use permissive language such as that found in § 15(8)(a) when it wished to create reviewable duties under the Act. Instead, it used mandatory language, and it typically included standards to guide both the Commission in exercising its authority and the courts in reviewing that exercise.” (emphasis added)).
. See infra at 1137-39.
. H.R.Rep. No. 96-1224, at 18 (1980), reprinted in 1980 U.S.C.C.A.N. 4849, 4864.
. Newman v. Apfel, 223 F.3d 937, 943 (9th Cir. 2000) (quoting Heckler v. Chaney, 470 U.S. 821, 831, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985); Lincoln v. Vigil, 508 U.S. 182, 193, 113 S.Ct. 2024, 124 L.Ed.2d 101 (1993)).
. Heckler, 470 U.S. at 831-32, 105 S.Ct. 1649.
. Docket 52 at 43.
. Docket 93 at 28.
. Heckler, 470 U.S. at 831, 105 S.Ct. 1649; cf. Lincoln, 508 U.S. at 193, 113 S.Ct. 2024 (applying exception to decision not to allocate funds from a lump-sum appropriation to a specific program).
. Port of Seattle, Wash. v. F.E.R.C., 499 F.3d 1016, 1027 (9th Cir. 2007) (citing Heckler, 470 U.S. at 830, 105 S.Ct. 1649).
. SAC ¶ 52.
. SAC ¶¶ 50-51.
. SAC ¶ 53.
. Intervenor Compl. ¶¶ 32-34.
. Intervenor Compl. ¶¶ 36-37.
. Intervenor Compl. ¶¶ 39-40.
. U.S. Const, art. II, § 2, cl. 2.
. Medellin v. Texas, 552 U.S. 491, 505, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008) (quoting Foster v. Neilson, 27 U.S. 253, 314, 2 Pet. 253, 7 L.Ed. 415 (1829), overruled in part by United States v. Percheman, 32 U.S. 51, 7 Pet. 51, 8 L.Ed. 604 (1833)).
. Id. (quoting Igartua-De La Rosa v. United States, 417 F.3d 145, 150 (1st Cir. 2005) (en banc)).
. “Ex ante” is defined as "[biased on assumption and prediction, on how things appeared beforehand, rather than in hindsight.” Black's Law Dictionary 642 (9th ed. 2009).
. Docket 93 at 30-32; Docket 41 at 15-16.
. Docket 71 at 14; Docket 41 at 16 (citing Made in the USA, 242 F.3d 1300, 1302, 1312 (11th Cir. 2001)).
. Docket 71 at 13 (citing Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Goldwater, 444 U.S. 996, 998, 100 S.Ct. 533, 62 L.Ed.2d 428 (1979) (Powell, J„ concurring)).
. 622 F.2d 1375, 1378 (9th Cir. 1980).
. Baker, 369 U.S. at 217, 82 S.Ct. 691.
. Docket 83 at 13.
. SAC ¶ 50.
. Docket 61 at 10 (emphasis in original).
. See, e.g., Docket 74 at 7.
. Docket 83 at 9; see also Intervenor Compl. ¶ 17 (citing H.R.Rep. No. 96-1224, at 18, 23 (1980), reprinted in 1980 U.S.C.C.A.N. 4849, 4864, 4869).
. Docket 83 at 21-23 (quoting S. Exec. Rep. No. 96-36, at 2 (1980); S. Treaty Doc. No. 108-7, at X (2003); S. Exec. Rep. No. 109-13, at 6 (2006); S. Hrg. No. 109-324 (2005)).
. H.R.Rep. No. 96-1224, at 18 (1980), reprinted in 1980 U.S.C.C.A.N. 4849, 4864.
. Id.
. Docket 71 at 16.
. Docket 71 at 16.
. Docket 52-1 at 6 (S. Treaty Doc. No. 108-7, at VI, X (2003) (Secretary of State’s letter submitting Annex VI to the President) ("The United States may seek the establishment of SOX Emission Control Areas in certain areas pursuant to the procedures set out in Appendix III to Annex VI____ Pursuant to longstanding practice under the MARPOL Convention, U.S. acceptance of amendments to Annex VI will not require further advice and consent by the Senate.”)); S. Exec. Rep. No. 109-13, at 2, 4 (2006) (relying on Secretary of State's submittal letter); S. Hrg. No. 109-324, at 41 (2005) (comments of Senator Biden) (“Amendments to MARPOL Annexes proceed through a simplified amendment procedure [and] U.S. acceptance of amendments to Annex VI would not, therefore, involve Senate consent.”).
. Docket 74 at 12-13.
. Docket 83 at 21.
. 33 U.S.C. § 1909(a).
. 33 U.S.C. § 1909(b); 33 U.S.C. § 1909(a) ("A proposed amendment to the MARPOL Protocol received by the United States from the Secretaiy-General of the International Maritime Organization pursuant to Article VI of the MARPOL Protocol, may be accepted on behalf of the United States by the President following the advice and consent of the Senate, except as provided for in subsection (b) of this section." (emphasis added)).
. SAC ¶ 51.
. Docket 61 at 19-20.
. Docket 52 at 45-46.
. Docket 41 at 23-24; Docket 57 at 20-23.
. Docket 19 at 34-35 (citing Medellin, 552 U.S. 491, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008)).
. Medellin, 552 U.S. at 506, 523-530, 128 S.Ct. 1346.
. Docket 52 at 47; Medellin, 552 U.S. at 506, 128 S.Ct. 1346.
. Docket 52 at 46 (quoting 33 U.S.C. §§ 1907(a), 1901(a)(4)-(5)); Docket 57 at 20 (same).
. Docket 52 at 46-47; see also Docket 71 at 20; Docket 93 at 33,
. E.g., 39 U.S.C. § 407(b)(1) (2012) (giving the Secretary of State "the power to conclude postal treaties, conventions, and amendments related to international postal services and other international delivery services”); 16 U.S.C. § 916b (2012) ("The Secretary of State is authorized ... to present or withdraw any objections on behalf of the United States Government to such regulations or amendments of the schedule to the convention as are adopted by the Commission and submitted to the United States Government in accordance with article V of the [International Convention for the Regulation of Whaling].”); 33 U.S.C. §§ 3803, 3801(3) (2012) (providing the Secretary of Homeland Security "shall administer and enforce” the International Convention on the Control of Harmful Anti-Fouling Systems on Ships, defined to include "its annexes” and "any amendments to the Convention or annexes which have entered into force for the United States”).
. Docket 71 at 18-19 and citations therein.
. Docket 93 at 34 (citing United States v. Wilson, 290 F.3d 347, 356 (D.C.Cir. 2002) ("Congress is presumed to preserve, not abrogate, the background understandings against which it legislates.”)).
. Docket 79 at 37.
. Docket 79 at 37 (quoting Medellin v. Texas, 552 U.S. 491, 496, 128 S.Ct. 1346, 170 L.Ed.2d 190 (2008)).
. Medellin, 552 U.S. at 496, 128 S.Ct. 1346 (quoting Dames, 453 U.S. 654, 686, 101 S.Ct. 2972, 69 L.Ed.2d 918 (1981)).
. Dames, 453 U.S. at 686, 101 S.Ct. 2972 (quoting United States v. Midwest Oil Co., 236 U.S. 459, 474, 35 S.Ct. 309, 59 L.Ed. 673 (1915)). The Dames Court also quoted Justice Frankfurter’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, which states that "a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned ... may be treated as a gloss on ‘Executive Power' vested in the President by § 1 of Art. II.” Dames, 453 U.S. at 686, 101 S.Ct. 2972 (quoting Youngstown, 343 U.S. 579, 610-611, 72 S.Ct. 863, 96 L.Ed. 1153 (1952)).
. Docket 19 at 36 (quoting S. Exec. Rep. No. 109-13, at 5 (2006)).
. Docket 52 at 48.
. Docket 52 at 47-48; see also Docket 57 at 21 (Environmental Defendants) ("Annex VI was arguably beyond the scope of the Senate's original consent and not covered by APPS because it addressed pollution into the atmosphere rather than the oceans. Congress thus passed new implementing legislation amending APPS to explicitly include Annex VI”).
. U.S. Const, art II, § 2, cl. 2.
. Docket 83 at 19 (citing I.N.S. v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983)).
. Docket 83 at 19.
. Docket 83 at 19-20 (quoting Clinton, 524 U.S. 417, 452, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998) (Kennedy J., concurring)).
. Docket 79 at 36 (citing Clinton, 524 U.S. at 438-39, 118 S.Ct. 2091).
. Chadha, 462 U.S. at 951, 103 S.Ct. 2764; cf. In re Nat’l Sec. Agency Telecomms. Records Litig., 671 F.3d 881, 895 (9th Cir. 2011) ("The nondelegation doctrine is central to the notion of separation of powers.”), cert. denied, - U.S. -, 133 S.Ct. 421, 184 L.Ed.2d 288 (2012).
. Chadha, 462 U.S. at 951, 103 S.Ct. 2764.
. Mistretta v. United States, 488 U.S. 361, 371-72, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).
. Mistretta, 488 U.S. at 372, 109 S.Ct. 647 (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928)).
. Littlewolf v. Lujan, 877 F.2d 1058, 1063 (D.C.Cir. 1989); see also Rostker v. Goldberg, 453 U.S. 57, 64, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981) ("Whenever called upon to judge the constitutionality of an Act of Congress— the gravest and most delicate duty that this Court is called upon to perform — the Court accords great weight to the decisions of Congress.” (internal citations and quotations omitted)).
. See, e.g., Leslie Salt Co. v. United States, 55 F.3d 1388, 1396 n. 3 (9th Cir. 1995) ("The vitality of the nondelegation doctrine is questionable ____”); Eric A. Posner & Adrian Vermeule, Interring the Nondelegation Doctrine, 69 U. Chi. L.Rev. 1721, 1722-23 (2002) (“In our view there just is no constitutional non-delegation rule, nor has there ever been.... What we argue ... is that a statutory grant of authority to the executive branch or other agents can never amount to a delegation of legislative power. A statutory grant of authority to the executive isn’t a transfer of legislative power, but an exercise of legislative power.”).
. Intervenor Compl. ¶ 37.
. Docket 83 at 25.
. Docket 83 at 25; Docket 83 at 27("[I]n Defendants' vision of proper lawmaking, elected U.S. legislators play no role; instead, the IMO can create U.S. law, as long as the executive takes no affirmative action to stop it”).
. Docket 83 at 9-10.
. Docket 71 at 22.
. Docket 71 at 23.
. Docket 93 at 39-40.
. Docket 83 at 26 (citing Wileman Bros., 909 F.2d 332 (9th Cir. 1990)).
. Wileman Bros., 909 F.2d at 334-36.
. Id. at 337 (quoting 7 C.F.R. § 916.62).
. Id. at 337-38.
. SAC ¶ 53; Intervenor Compl. ¶ 40.
. Docket 83 at 29.
. Docket 79 at 38.
. Docket 83 at 29-30 (quoting Skinner v. Mid-Am. Pipeline Co., 490 U.S. 212, 218, 109 S.Ct. 1726, 104 L.Ed.2d 250 (1989)).
. 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989).
.Id. at 372, 109 S.Ct. 647.
. Id. at 372-73, 109 S.Ct. 647 (quoting Am. Power & Light Co. v. SEC, 329 U.S. 90, 105, 67 S.Ct. 133, 91 L.Ed. 103 (1946)).
. Id. at 373-74, 109 S.Ct. 647.
. Wileman Bros. & Elliott, Inc. v. Giannini, 909 F.2d 332, 337 n. 9 (9th Cir. 1990).
. Docket 52 at 56; see also Docket 71 at 27.
. Docket 52 at 56; see also Docket 71 at 27.
. See supra at 1123-28.
. Cf. Touby v. United States, 500 U.S. 160, 165, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991) ("So long as Congress lay[s] down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform, such legislative action is not a forbidden delegation of legislative power.' ” (quoting J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409, 48 S.Ct. 348, 72 L.Ed. 624 (1928))); Docket 52 at 57 ("By referencing the policy aims, structure, and content of MARPOL, identifying the Secretary of State as the relevant executive branch actor, and specifying that the Secretary of State may take 'appropriate action' with respect to a defined subset of amendments within the framework of MARPOL, the Senate and Congress have provided an intelligible principle to delineate the boundaries of the authority described in APPS.”).
. In re Nat’l Sec. Agency Telecomms. Records Litig., 671 F.3d 881, 897-98 (9th Cir. 2011) (citing Loving v. United States, 517 U.S. 748, 772, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996); United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 324, 57 S.Ct. 216, 81 L.Ed. 255 (1936); Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1438 (9th Cir. 1996)), cert. denied, - U.S. -, 133 S.Ct. 421, 184 L.Ed.2d 288 (2012).
. Jensen v. Nat’l Marine Fisheries Serv., 512 F.2d 1189, 1191 (9th Cir. 1975) (quoting Curtiss-Wright Corp., 299 U.S. at 320, 57 S.Ct. 216).
. Docket 52 at 58.
. Docket 83 at 37.
. Docket 83 at 36.
. Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 414, 123 S.Ct. 2374, 156 L.Ed.2d 376 (2003) (quoting Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 610-611, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Frankfurter, L, concurring)); see also, e.g., Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) ("Congress — in giving the Executive authority over matters of foreign affairs— must of necessity paint with a brush broader than that it customarily wields in domestic areas.”); Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 109, 68 S.Ct. 431, 92 L.Ed. 568 (1948) ("The President ... possesses in his own right certain powers conferred by the Constitution on him as Commander-in-Chief and as the Nation's organ in foreign affairs.”).
. Docket 79 at 41.
. SAC ¶¶ 58-61.
. 33 U.S.C. § 1902(a)(5)(A).
. 33 U.S.C. § 1902(a)(5)(B)(i)-(iii), (a)(5)(C)(i)-(iii).
. Docket 19 at 38.
. 33 U.S.C. § 1903(b)(2), (c)(2).
. Docket 9-3 at 16 (MARPOL Annex VI, Reg. 14).
. Docket 49 at 16.
. Docket 57 at 26.
. 33 U.S.C. § 1902(a)(5)(B)(i)-(ii), (a)(5)(C)(i)-(ii).
. Thomas J. Schoenbaum, 1 Admiralty & Mar. Law § 2-16 (5th ed.); see also 16 U.S.C. § 1453 (2012) ("The Exclusive Economic Zone extends to a distance 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.”); Pres. Proc. No. 5030, 48 Fed.Reg. 10605, 10605 (Mar. 10, 1983) ("The E[xc]lusive Economic Zone extends to a distance 200 nautical miles from the baseline from which the breadth of the territorial sea is measured.”).
. North American ECA Proposal at 5, available at http://www.epa.gov/nonroad/marine/ci/ mepc59-eca-proposal.pdf.
. Marine Diesel Rule, 75 Fed.Reg. 22896, 22924 (Apr. 30, 3010).
. Docket 52 at 62; Docket 57 at 25-26.
. Docket 79 at 44.
. Docket 79 at 44.
. Docket 93 at 47.
. Docket 93 at 47.
. Cf. H.R.Rep. No. 110-54, at 5 (2007), reprinted in 2008 U.S.C.C.A.N. 1002, 1003 (section-by-section analysis) ("This section applies Annex VI to the U.S. Exclusive Economic Zone to the extent that this is consistent with international law.”).
. In addition, as the Federal Defendants explain, under the State’s interpretation "the United States could enforce an ECA’s requirements as to foreign-flagged ships in an ECA designated pursuant to section 1903, but not as to foreign-flagged ships in an ECA located in a port or internal waters or in the United States EEZ or navigable waters and designat
Reference
- Full Case Name
- State of ALASKA v. John F. KERRY
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