Because of the efforts of the U.S. Coast Guard and the Environmental Protection Agency, the United States effectively has been the only nation actively enforcing the standards established in the International Convention for the Control and Management of Ships’ Ballast Water and Sediments, 2004 (BWM Convention). This has encouraged other nations to ratify or at least take steps to ratifying the Convention, which is now on the verge of having a sufficient number of parties so as to enter into force. This entry into force has been knocked into a cocked hat by a recent decision of the U.S. Court of Appeals for the Second Circuit.
The BWM Convention will enter into force 12 months after it has been ratified by 30 states representing at least 35 percent of the world’s commercial shipping tonnage. As of the date of this writing, the Convention has been ratified by 44 states representing 32.89 percent of the world’s commercial shipping tonnage. One more nation, almost any nation, ratifying the Convention could put it over the top.
The problem is that the appellate court decision found that the EPA ballast water management standards incorporated into that agency’s vessel general permit program were arbitrary, capricious, and not in accordance with the law. The court ruled that the EPA improperly defaulted to adopting the BWM Convention standards rather than conducting a wide-ranging analysis of potential approaches. The court did not say that adoption of the Convention standards was impermissible, only that the EPA was required to consider all feasible options prior to making a considered decision. The court also said that the effluent limits intended to prevent degradation of water quality were impermissibly vague and suggested that the EPA consider implementation of best management practices. The EPA was directed to reconsider its BWM standards, but allowed the current standards to remain in effect until new standards are promulgated.
This development has slowed moves toward further ratification of the BWM Convention. Hopefully, the process has not been entirely derailed.