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Volume3
MonthMay
Year2002
TitleRegulating Foreign Vessels Under the Clean Air Act: The Case for a Permissible Administrative Interpretation
Author(s)Dan Lickel
First Page145
AbstractThis Comment will argue that the EPA may regulate the emissions of large sea-going vessels flying foreign flags that enter the territorial sea, contiguous zone, or Exclusive Economic Zone (EEZ) of the United States, under Section 213 of the CAA, notwithstanding conventional and customary Law of the Sea and other international treaties governing vessel source pollution. Part II of the comment presents background material that explains the provisions of the CAA, which mandate the EPA to regulate international shipping vessels. This section also presents the regulatory schemes developed by the IMO and the EPA. Part III evaluates whether the EPA can interpret the CAA to mandate the EPA to regulate the emissions of foreign vessels in United States' waters. Subpart A examines whether such an interpretation would be consistent with the United States obligations under international law. Subpart B considers how the United States courts would review and application of the CAA to foreign ships. Of particular importance will be the Supreme Court's jurisprudence on the international affairs rule and the presumption against extraterritoriality. Part IV compares the results of the present analysis with the conclusions of the European report that analyzes whether the European Community can adopt similar regulations to reduce SOX emissions in the waterways around Europe. Part V presents some concluding remarks.