California Governor Vetoes Harbor Craft Fix

Defying the near-unanimous bipartisan support of California’s legislators as well as the state’s labor unions, California Gov. Gavin Newsom issued a last-minute veto of AB 1122, a marine safety bill that would have delayed and moderated an emissions rule set to take effect in December that maritime interest strongly oppose. Only one member of California’s legislature voted against it. Newsom also vetoed two other emissions-related bills.

AB 1122 would have delayed a pending emissions rule for harbor craft by the California Air Resources Board (CARB) that is strenuously opposed by the maritime industry and would also have required an override mechanism to CARB-mandated diesel particulate filters (DPFs) for emergency situations.

The rule’s critics say commercial DPFs suitable for marine engines are not available. They fear the unattainable rule will drive noncompliant harbor craft—including tugboats needed to dock large cargo vessels—from California’s waters and impose further logistics burdens on California and the nation in the wake of a strike by longshoremen in East Coast and Gulf Coast ports.

Despite the bipartisan support for AB 1122, observers say a veto override is unlikely. That would require a two-thirds vote by both houses of California’s legislature within a 60-day window. The last override of a California governor’s veto occurred in 1979.

However, Kyle Burleson, director of state advocacy at the American Waterways Operators (AWO) who has been a point person on the issue, said the trust and good will built between the maritime industry and members of the California legislature will be enduring and should render future benefits.

“The education our team has done was tremendous,” Burleson told The Waterways Journal. “So many of the legislators had no idea what our industry was about or the importance of its contributions.”

Maritime activity generates $12.2 billion in California, making it fourth among all states.

CARB’s rule requires all harbor vessels except fishing boats to install devices on their engines called diesel particulate filters that reduce particulate emissions. They are essentially miniature furnaces that operate at temperatures of at least 1,100 degrees Fahrenheit to oxidize and incinerate particles in a process called regeneration after removing them from exhaust using a variety of filtering materials.

Sharing Emission Goals—But Safely

Jennifer Carpenter, president and CEO of AWO, the trade association of the American tugboat, towboat and barge industry, said, “As an industry with a demonstrated commitment to sustainability leadership, we share CARB’s and California’s environmental aspirations, but CARB’s Commercial Harbor Craft rule represents a flawed approach to these challenges. California’s legislature, by a near-unanimous vote, recognized that AB 1122 was a more complete solution to the problems created by CARB’s rule. We are therefore deeply disappointed that Gov. Newsom has vetoed this critical legislation and, in doing so, has put mariner safety at risk and jeopardized the safety, sustainability and efficiency of the California and global supply chain.”

Capt. Sly Hunter, San Francisco and Oakland representative of the International Organization of Masters, Mates and Pilots, said: “The men and women who work onboard California’s commercial harbor craft are indispensable to California’s prosperity and environmental sustainability. We owe our mariners steadfast devotion to their safety, and it is regrettable that Gov. Newsom chose to veto legislation that would have been far more effective, not only in keeping them safe from the risks of dangerous equipment, but also in preventing major congestion in our ports at a fragile time for our nation’s economy.”

Coast Guard Refuses To Certify

According to Burleson, there are currently 27 models of Tier IV diesel engines, of which four have DPFs, but none is big enough to be used on marine vessels. The U.S. Coast Guard maintains that existing DPFs would create unacceptable safety issues in marine engines by raising engine temperatures. Any such modifications to marine engines remain unauthorized.

In a February 21 letter to Bonnie Soriano, branch chief of the Freight Activity Branch of CARB, Rear Adm. A.M. Sugimoto, commander of the Coast Guard’s 11th District, wrote, “Please note that DPFs verified by CARB may not necessarily be accepted by the Coast Guard for installation on inspected commercial vessels.” The letter notes, “It is the engine manufacturers’ responsibility to ensure that engine systems are approved and certified by the U.S. Environmental Protection Agency for marine use and the applicable marine emission requirements.” CARB failed to acknowledge a 2021 safety letter from the Coast Guard, and its subsequent attempts to address the issue through an executive order “fell short,” according to maritime opponents.

The Coast Guard’s refusal to certify the DPFs is not merely academic. As AB 1122 itself points out in its text, vessels that make engine modifications not approved by the Coast Guard cannot get insurance, and without insurance they cannot operate.

To date the Environmental Protection Agency has not approved the final version of CARB’s harbor craft emission rule. However, CARB has never failed to get EPA approval or a waiver. An EPA waiver is necessary because, when the Clean Air Act was passed in 1963, California got special permission from the EPA to make stricter air quality rules than what the agency allowed at the time due to smog in Los Angeles. Other states can then copy California’s standards. That EPA waiver is what has allowed CARB to set, in effect, national air quality standards.

After hearing from the maritime industry and trade union opponents of CARB’s harbor craft rule, Jasmeet Bains, a member of the California Assembly (the state’s lower legislative house) authored and introduced AB 1122, which would have prevented CARB from forcing vessels to install DPFs on marine vessels before the devices are certified as safe by qualified third parties. It would also have required that marine DPFs carry an override feature that could be operated in case of emergencies.

Trucking Lessons Not Learned

In December 2008, CARB established the California Statewide Truck and Bus Rule which, with variance according to vehicle type, size and usage, required that on-road diesel heavy trucks and buses in California be retrofitted, repowered or replaced to reduce particulate matter emissions by at least 85 percent. Since then, trucking associations have sued CARB—in 2013 and again in 2017—over dozens of truck fires they say were caused by DPFs that were “not ready for prime time” when the regulations came into force. CARB has since disputed claims about the number of truck fires and insisted that regulations requiring testing of both truck engines and DPFs were adequate. The incidents led to truckers nicknaming DPFs “dangerous potential fires.”

Green Groups Opposed Fix

Environmental activist groups urged Newsom to veto the bill. A group called Environment California wrote, “This bill [AB 1122] would unnecessarily require the inclusion of an override or bypass feature on pollution filters and delay regulatory requirements for certain harbor craft to install new engines. This would undermine the CHC [commercial harbor craft] rule and California’s ability to reduce diesel emissions from the harbor craft that spew pollution into portside communities.”

Legal Planet, a site founded by activist law professors from the University of California at Berkely and Los Angeles, called AB 1122 and three other bills “sneaky legislative efforts to threaten California’s world-leading clean transportation investments” and said they “flew under the radar, appearing to many advocates and lawmakers as technical bills of little consequence. After failing to pass last year, they were amended late in this year’s legislative session and skillfully downplayed by lobbyists set on weakening and delaying implementation of the state’s Advanced Clean Fleet (ACF) and Commercial Harbor Craft (CHC) rules.”