October 2007 Vol. 106 No. 1 THE REVIEW

Noontime Dumping: Why States Have Broad Discretion to Regulate Onboard Treatments of Ballast Water

Kyle H. Landis-Marinello

Ballast water discharges from shipping vessels are responsible for spreading numerous forms of aquatic invasive species, a form of biological pollution that leads to billions of dollars in annual costs. In the wake of inaction from the federal government and inaction from the shipping industry, several Great Lakes states are currently considering legislation to address the problem. Michigan has already passed a law to prevent ballast water introductions of invasive species. As states begin to regulate ballast water discharges from oceangoing vessels, such laws will likely face challenges based on the constitutional principles of the Dormant Commerce Clause and the federal preemption doctrine of the Supremacy Clause. This Note contends that state ballast water laws do not violate either the Dormant Commerce Clause or the Supremacy Clause. States can regulate ballast water discharges without violating the Dormant Commerce Clause because state regulations in this area do not discriminate against interstate commerce, and, even if they did, courts allow discrimination in this context. Under the Supremacy Clause, federal law does not preempt state regulation of ballast water discharges. Although federal regulation of onboard equipment might impose some limitations on similar state regulations, federal law does not preempt states from preapproving certain methods for treating ballast water.

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