Alaska v. Kerry (972 F. Supp. 2d 1111, 2013)

ORDER RE ALL PENDING MOTIONS

SHARON L. GLEASON, District Judge.

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 emissions are regulated more strictly than in other areas. In April 2009, the United States and Canada jointly proposed amending MARPOL to include a North American ECA, which includes the Southeast and Southcentral coasts of Alaska. The ECA amendment was adopted and became part of MARPOL in March 2010. The Secretary of State subsequently accepted the amendment for the United States on August 1, 2011.

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 was adopted in 1973 and amended in 1978. The convention’s purpose is to reduce marine pollution by ships.

MARPOL currently contains six annexes, each of which addresses a different type of marine pollution. Annex VI, the annex implicated in this litigation, addresses air pollution. It was adopted by the IMO in 1997.

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.

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.” More stringent requirements apply within the ECAs identified in Regulation 14. In those areas, the sulfur content of fuel shall not exceed “1.50% m/m prior to 1 July 2010,” “1.00% m/m on and after 1 July 2010,” and “0.10% m/m on and after 1 January 2015.”

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. In April 2006, the Senate again approved MARPOL, including Annex VI. In 2008, Congress amended APPS to implement Annex VI. The North American ECA was added to Annex VT in 2010.

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. Appendix III states that an ECA “should be considered for adoption by the [IMO] if supported by a demonstrated need to prevent, reduce and control emissions of NOx or SOx and particulate matter ... from ships.” It outlines the process for adopting an ECA: a party to MARPOL submits an ECA proposal; the IMO assesses the proposal, taking into account a specified set of criteria; if the proposal passes muster, it is adopted and brought into force by means of an amendment to Annex VI.

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-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.

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:

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. After being “adopted by a two-thirds majority of only the Parties to the Convention present and voting,” the amendment is communicated to all parties to MARPOL and deemed accepted unless certain types of objections are made. Once the amendment has been accepted, it becomes effective six months later with respect to parties that have accepted it, but not with respect to parties that declared they did not accept it or those that declared their express approval was necessary.

In March 2010, the IMO voted to amend Annex VI to designate the North American ECA. As a result, the EC As listed in Regulation 14 of Annex VI now include “the North American area as described by the coordinates provided in appendix VII to this Annex.” Appendix VII describes the North American ECA by a listed series of geographic coordinates, and, as noted above, it includes Southeast and South-central Alaskan coastal waters.

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. The Regulatory Update includes the following:

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.

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.

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. During the one-month comment period, EPA received comments on the NPRM from sources including the Resource Development Council for Alaska, Alaska Governor Sean Parnell, and Alaska Senators Lisa Murkowski and Mark Begich. In December 2009, EPA responded to the comments and published a Regulatory Impact Analysis. On April 30, 2010, after Annex VI had been amended by the IMO but before the North American ECA went into force, EPA published its Final Rule (“Marine Diesel Rule”) and indicated that the Rule adopted “emission standards ... equivalent to those adopted in the amendments to Annex VI to ... MARPOL,” including the effective dates for when the new sulfur limits would become applicable in the North America ECA.

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 SAC names as Defendants the Secretary of State, EPA and its Administrator, the Department of Homeland Security and its Secretary, and the Coast Guard and its Commandant (collectively, “Federal Defendants”). The SAC asserts four claims for relief: (1) the Secretary of State’s decision to accept the ECA amendment violated the Administrative Procedure Act (“APA”) and APPS and should be set aside; (2) enforcement of the ECA amendment as domestic federal law violates the Treaty Clause and separation of powers; (3) EPA’s Marine Diesel Rule violated the APA’s notice-and-comment rulemaking requirements; and (4) applying the ECA to foreign-flagged ships exceeds EPA’s authority under the APA and APPS. The State has subsequently abandoned its third cause of action. The SAC alleges that enforcement of the ECA in the waters off the coast of Alaska will raise costs for marine vessels and that those higher costs will cause economic harm to the State. The SAC seeks declaratory relief as to the invalidity of the North American ECA, as well as an injunction preventing the Defendants from enforcing the ECA in Alaska.

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 Environmental Defendants are all nonprofit organizations devoted to protecting marine and coastal ecosystems and to preserving air quality for the health of coastal communities through participation in the administrative process, litigation, and public education. The Clean Air Defendants are all clean air agencies charged with attaining health-based air quality standards in their respective localities, as required by the Clean Air Act.

The State filed a Motion for Preliminary Injunction on September 28, 2012, which was subsequently supported by RDC and opposed by all Defendants. The Federal Defendants filed a Motion to Dismiss the Second Amended Complaint on November 9, 2012, which was opposed by the State.

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. It seeks a declaration that the North American ECA designation violates the Constitution and an injunction preventing the EPA from enforcing the ECA in Alaska. The Federal Defendants filed a Motion to Dismiss RDC’s Intervenor Complaint on December 20, 2012, which was opposed by RDC.

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 seek dismissal of the State’s and RDC’s Complaints. Both motions were filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and assert that this Court lacks subject matter jurisdiction over this action and that the State and RDC have each failed to state a claim upon which relief can be granted.

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.” When faced with a challenge to its subject matter jurisdiction under Rule 12(b)(1), a court must resolve that issue before determining whether a complaint states a cause of action under Rule 12(b)(6).

“A federal court is presumed to lack jurisdiction in a particular case unless the contrary affirmatively appears.” The party asserting jurisdiction bears the burden of establishing subject matter jurisdiction on a motion to dismiss under Rule 12(b)(1).

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.

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.’ ” For purposes of the Federal Defendants’ 12(b)(6) arguments to dismiss the SAC and the Intervenor Complaint, the Court accepts as true the material factual allegations contained in the complaints and draws all reasonable inferences in the non-moving parties’ favor.

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.

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.” Specifically, the State asserts that the Secretary of State’s acceptance of the ECA was not an “appropriate action” because he must consider each of the Appendix III criteria before accepting an amendment to MARPOL, and certain of these criteria were not assessed for the Alaska portion of the ECA.

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 contend that “Alaska’s first cause of action ... is barred by the political question doctrine” and that the State “seeks review that is expressly precluded under the APA.”

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.” Accordingly, as this issue implicates the Court’s subject matter jurisdiction, the Court first considers the parties’ arguments under Rule 12(b)(1).

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).

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.” “However, it is ‘error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.’ ” And, a court “will not find a political question ‘merely because [a] decision may have significant political overtones.’ ” Rather, a court must “undertake a discriminating case-by-case analysis to determine whether the question posed lies beyond judicial cognizance.”

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 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.

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.” As cited above, 33 U.S.C. § 1909(b) and (c) provide that the Secretary of State “may” take “appropriate action” on an amendment to a MARPOL Annex, or reject the amendment.

(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.” In this way, the State asserts, “Congress ensured that only ECA amendments that comply with Appendix III would be accepted, for it cannot be ‘appropriate action’ to accept an amendment that does not comply with the terms of the treaty.” Specifically, the State maintains that the Secretary of State improperly accepted the inclusion of Alaska in the North American ECA because the amendment “did not contain the environmental assessment or meteorological information required by 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.” It asserts the cited sources “show that the Senate approved Annex VI with the understanding that the executive branch would comply with Appendix III when seeking to establish an ECA for the United States.” The State argues that “[i]t is only by interpreting ‘appropriate action’ to mean, in the context of a proposed ECA, a duty to ensure compliance with Appendix III, that effect can be given to the Senate’s intention that ECAs be designated consistent with Appendix III.”

The State also relies on the D.C. Circuit’s decision in Defenders of Wildlife, Inc. v. Endangered Species Scientific Authority. That case involved an international convention that identified a number of endangered species, including bobcats, and limited international trade of the species. The convention, however, did not specify a quota for each participating nation. Rather, it was incumbent on each participating nation to develop its own export quotas. The convention specified that each nation was to establish a Scientific Authority to determine and monitor the number of export permits to be granted by that nation, and a Management Authority to ensure compliance.

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 Secretary of the Interior was designated as both the Management and Scientific Authority. The Scientific Authority published findings regarding bobcats and established export quotas based on those findings. The plaintiffs challenged the export quotas, asserting the convention had not been implemented by Congress, and the Scientific Authority’s actions were not in conformance with the convention. The federal defendants argued there was “no meaningful basis” for reviewing the agency actions “because the Convention provide[d] merely generalized standards ... and Congress ha[d] neither implemented the substance of nor particularized those standards.”

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, which directs a court to set aside agency action that is “arbitrary and capricious and not in accordance with law.”

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.” However, the agency action in Defenders differs significantly from that here in two ways. First, in Defenders the plaintiffs challenged actions that the agency had undertaken specifically to effectuate the international convention, and they asked the court to evaluate whether those actions satisfied the United States’ obligations under the convention. The convention itself did not specify the quotas, only the methodology to use to determine those quotas. In contrast, here Plaintiffs challenge the federal government’s acceptance of an international amendment to MARPOL that specifies the precise area of the ECA, and they ask the Court to determine whether that international amendment is consistent with the convention’s terms. Second, the implementing statute in Defenders explicitly established the convention as the relevant source of authority when it directed that the Secretary of State “shall do all things necessary and appropriate to carry out” the convention’s functions. By contrast, here APPS simply provides that a MAR-POL Annex amendment “may be the subject of appropriate action” by the Secretary of State. APPS does not mandate any particular action by the Secretary of State, or define “appropriate action” as action necessary to fulfill obligations under the convention, as was explicitly done in Defenders.

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. Thus, Defenders does not resolve the question of whether the political question doctrine bars review of this claim.

The State also asserts that the Ninth Circuit’s decision in Hopson v. Kreps involved a similar question. Hopson involved regulations the U.S. Department of Commerce (“DOC”) had adopted pursuant to the International Whaling Convention Act of 1949, which Congress had enacted to implement the International Whaling Convention (“IWC”). The IWC created an international commission to establish whaling regulations and amend them as necessary. In 1977, the commission amended its regulations to eliminate an exception that had existed for native subsistence whale hunting. Had the United States lodged a formal objection to the amendment within 90 days, the amendment would have been inapplicable to the United States. But the United States did not object, and the DOC subsequently implemented the amended regulations. The plaintiff in Hopson brought suit, arguing that because the DOC’s authority to implement the regulations came from the IWC (via implementation by the 1949 Act), and because the regulations at issue exceeded the jurisdiction of the commission, the DOC lacked the statutory authority to implement the regulations. Specifically, the plaintiff asserted that the commission exceeded its jurisdiction because the IWC was applicable only to commercial whaling vessels and not to the small boats used by Eskimos.

The Hopson court defined the “particular question posed” as “whether the Commerce Department exceeded limits on its statutory authority in promulgating [the] regulations.” The government argued that the suit was barred by the political question doctrine, but the Ninth Circuit found its arguments unpersuasive. It explained that under Ninth Circuit precedent, claims that “went to the very existence of the power of the executive to act as it did” had been considered justiciable. The Hopson court held that “the criteria enunciated [in Baker v. Carr ] generally do not apply to claims that the executive has exceeded specific limitations on delegated authority.” The court determined that the claims in Hopson were not barred by the political question doctrine, even though the evaluation of the plaintiffs’ claim would require the interpretation of the international convention. Such interpretation was necessary in order to determine if the agency had exceeded the statutory authority conferred upon it by the legislation that had implemented the international convention.

Here, by contrast, Plaintiffs are not challenging the Secretary of State’s authority to accept MARPOL Annex amendments. MARPOL clearly provides for the designation of EC As by amendment to Annex VI and APPS clearly allows the Secretary of State to accept such amendments. Rather, Plaintiffs challenge the manner in which the Secretary of State’s authority was exercised and propose standards by which it should be judged.

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.” The Ninth Circuit stressed that if the treaty is not self-executing, “it is not the treaty but the implementing legislation that is effectively ‘law of the land.’ ” Thus, Hopson does not support the State’s argument that in providing that the Secretary of State “may take appropriate action,” APPS incorporated by reference the MARPOL Appendix III criteria.

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 superfluous. The State contrasts subsection (b) with subsection (c), which allows the Secretary of State to “make a declaration that the United States does not accept an amendment.” The State maintains that in subsection (c), Congress clearly intended to accord the Secretary of State unfettered discretion to reject amendments. The State asserts that if Congress had intended the Secretary to have similarly unfettered discretion to accept amendments, it would have used similarly straightforward language in Section 1909(b). Instead, the State asserts that because Congress used term “appropriate action” in Section 1909(b), that term must have a more restrictive meaning.

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. That case concerned a statute that allowed Americans born in Jerusalem to choose to have “Israel” listed as their place of birth on their passports. The State Department refused to follow the law based on its “longstanding policy of not taking a position on the political status of Jerusalem.” Zivotofsky brought suit against the Secretary of State challenging the agency’s refusal to put “Israel” on his passport. The district and circuit courts “ruled that this case involves a political question because deciding Zivotofsky’s claim would force the Judicial Branch to interfere with the President’s exercise of constitutional power committed to him alone.” The Supreme Court reversed, explaining that “[t]he federal courts are not being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination of what United States policy toward Jerusalem should be,” but rather were being asked to “enforce a specific statutory right.” The Court added that the lower courts had misconstrued the issue as implicating the second Baker factor. Instead, the Court characterized the case as presenting a question regarding the constitutionality of the statutory provision at issue, thus involving “familiar principles of constitutional interpretation.” Zivotofsky involved a private individual’s statutory right, and thus it presents no clear parallels or precedent helpful to this ease.

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.” However, the legislative history of APPS gives no indication that Congress intended “appropriate action” to have a specific meaning. Given this silence, the Court finds the most likely meaning of “appropriate action” to be the one posited by the Environmental Defendants: that “appropriate action” simply “entails taking the steps necessary according to the treaty amendment procedures of MARPOL — either explicit acceptance or tacit acceptance — to communicate the United States’ acceptance of an amendment.” This does not, however, provide “judicially discoverable and manageable standards” for resolving the SAC’s first claim.

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.” However, as discussed above in the context of the second Baker factor, this claim does not require statutory interpretation, as APPS does not provide any standards for reviewing the Secretary of State’s decision. The State also asserts that declining to review this claim would require holding “that Congress was powerless to limit the Secretary of State’s discretion to accept amendments to MARPOL,” which would “presumptively favor the Executive Branch at the expense of the Legislative Branch in violation of the separation of powers doctrine.”

The Federal Defendants respond that here, Congress chose not to place statutory limits on the Secretary of State’s discretion. They point out that when Congress amended the approval authority granted in 33 U.S.C. § 1909(b) to include the amendments to Annex VI, the Secretary of State had already acted on several other amendments pursuant to the authority granted by Section 1909(b) and that “the Senate was well aware that the United States was considering the designation of one or more ECAs along the coasts of the United States.” They assert that “[g]iven the statutory accommodation reached between Congress and the Executive, which preserved the Secretary’s wide discretion, this Court could not inject itself into that process without unduly impinging on those other branches of government.” The Federal Defendants maintain that “barring review here under the political question [doctrine] would not favor the Executive over Congress. Rather, it would show both political branches the respect they are due.”

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 review of the Secretary of State’s decision to accept the North American ECA would demonstrate a lack of respect for both Congress’s intent and the Secretary of State’s executive powers. .

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.” In making this argument, the Clean Air Defendants cite the D.C. Circuit’s decision in Adams v. Vance. In Adams, the Secretary of State had determined not to object to an International Whaling Commission ban on Eskimo hunting of bowhead whales. This decision was challenged in the district court, which issued an injunction ordering the Secretary of State to object. The D.C. Circuit overturned the district court’s order because it was “based on the unwarranted assumption that such objection would not harm the United States.” Although the D.C. Circuit found it unnecessary to decide if the suit presented a nonjusticiable political question, it did hold that the district court’s order was “an unwarranted intrusion on executive discretion in the field of foreign policy and agreements.” In reaching this decision, the D.C. Circuit “accorded great deference” to the affidavit testimony of the Assistant Secretary of State for Oceans and International Environmental and Scientific Affairs, which stated:

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.

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 Secretary in Adams. Mr. Balton has extensive experience with marine conservation in the international context. His Declaration states, in relevant part:

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.

The Court finds that Mr. Balton’s Declaration provides persuasive evidence that the sixth Baker factor is implicated here. An order by this Court invalidating the North American ECA that the United States itself had proposed to MARPOL jointly with Canada would likely present a “potentiality of embarrassment from multifarious pronouncements” by the United States government to the international community.

The Court has determined that three Baker factors are inextricable from the SAC’s first cause of action. As a finding that even one factor is inextricable renders a claim a nonjusticiable political question, the Court finds that the SAC’s first claim is not subject to judicial review. That claim is therefore dismissed.

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. The APA contains a basic presumption of reviewability of agency action. However, 5 U.S.C. § 701(a)(2) provides that the APA does not apply “to the extent that ... agency action is committed to agency discretion by law.” This is “a very narrow exception” that applies in limited circumstances. The Federal Defendants argue the exception applies here because (1) there is no law to apply in evaluating the Secretary of State’s decision, and (2) the decision is unreviewable because it requires a complicated balancing of factors in the realm of foreign affairs, which is within the Secretary of State’s particular expertise.

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. The Supreme Court reconciled this contradiction as follows:

[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.”

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. Certain of the parties’ arguments are more relevant to the specific issue of the Secretary of State’s discretion, however, so the Court addresses them here.

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 amendments to MARPOL.” The Federal Defendants maintain that the provisions of 33 U.S.C. § 1909(b) and (c) “do not dictate the circumstances under which the Secretary of State would take a particular action” and “are silent about why the Secretary of State might take action, what factors the Secretary of State would consider in deciding whether to take action, and other circumstances under which the Secretary of State would take action on the proposed amendments.” The Federal Defendants assert that this silence on what criteria the Secretary of State might consider, and the statute’s failure even to specify what action might be taken, clearly leaves the decision “to the Secretary of State’s discretion.”

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.” For example, in Hinck v. United States, the Supreme Court discussed a section of the Internal Revenue Code that provided the Secretary of the Treasury “may abate the assessment of all or any part” of interest that had accrued on unpaid federal income tax. In interpreting that provision, the Court noted that “the federal courts uniformly held that the Secretary’s decision not to grant an abatement was not subject to judicial review.” The Court approvingly remarked that those decisions “recognized that [the provision] gave the Secretary complete discretion to determine whether to abate interest, ‘neither indicat[ing] that such authority should be used universally nor providing any basis for distinguishing between the instances in which abatement should and should not be granted.’ ” Accordingly, “[a]ny decision by the Secretary [whether to abate] was ... ‘committed to agency discretion by law’ under the Administrative Procedure Act and thereby insulated from judicial review.”

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 Court held that the agency’s decision whether to order a hearing was unreviewable. The Court explained, “[although we will not lightly interpret a statute to confer unreviewable power on an administrative agency, we have no choice in this case [because] ‘there is persuasive reason to believe that [nonreviewability] was the purpose of Congress.’ ” In reaching this decision, the Court considered the statute’s language, which was “silent on what factors should guide the Commission’s decision,” and found that that “on the face of the statute there is simply ‘no law to apply’ in determining if the decision is correct.” The Court also analyzed the structure of the relevant act, which used mandatory language (“shall”) in other provisions, and the act’s legislative history, which indicated the relevant statute “was designed to avoid [the] disruptive consequences of judicial interference.”

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 specifically addresses Hinck, asserting it is inapposite for two reasons: (1) because here, Appendix III of Annex VI provides “readily available” standards for assessing the Secretary of State’s decision, and (2) because Hinck “involved an executive officer acting in a law enforcement capacity, where decisions are traditionally not subject to judicial review.” The Court has already addressed and found unpersuasive the State’s first point. The State cites the following language from a different case, Heckler v. Chaney, to support the second point: “This Court has recognized on several occasions over many years that an agency’s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency’s absolute discretion.” Heckler was a case that addressed an agency’s discretion to refuse to initiate enforcement proceedings. But neither Hinck nor the instant case is a case challenging an agency decision not to prosecute. Rather, of significance to this case, the Court in Hinck held that after Congress added an abuse of discretion standard to the statute, a disgruntled taxpayer was accorded a right to judicial review of a refusal to abate.

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 State asserts that “[t]o accept the United States’ argument that the Secretary of State has discretion when acting under § 1909(b) would mean that under that section [the Secretary] can take inappropriate action on an amendment to MARPOL, which is an absurd reading of the statute that the Court should reject.” The argument is not without some merit. But in the Court’s view, the statutory language as drafted does not accord a litigant the right to challenge the appropriateness of the Secretary’s decision. Stated differently, the statute accords the agency, and not a court, the discretion to determine what action is appropriate with respect to a MARPOL amendment under Annex VI.

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.” As discussed extensively in this section and in the context of the second Baker factor above, the language of Section 1909(b) and its failure to constrain or guide the Secretary of State’s action indicates that Congress intended to place the acceptance of a MARPOL Annex amendment soundly within the Secretary of State’s discretion. In contrast, other sections of APPS use mandatory rather than permissive language and specify factors the agency should consider when taking action. Finally, the committee report containing the section-by-section analysis of APPS, which is discussed more extensively below, states that Section 1909 “provides for consultation” by the Secretary of State regarding “what action should be taken” with respect to proposed amendments, and it states that the Secretary of State “is empowered” to declare the United States’ non-acceptance of MARPOL Annex amendments. While the report does not specifically state that the Secretary of State is similarly empowered to accept amendments, it indicates that the purpose of Section 1909(b) was to create a “rapid amendment process” for MARPOL Annexes. Thus, although the report does not explicitly commit acceptance of amendments to the Secretary of State’s discretion, when read as a whole, it more strongly supports that interpretation than the one the State presents.

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 policies.’ ” As the Supreme Court stated in Heckler, an “agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities.”

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.” In their Reply, the Federal Defendants identified several factors involved in the Secretary of State’s decisions to accept MARPOL Annex amendments, including “evaluation of their individual merits, the effect that the amendment would have on the United States and our interests, including our efforts under MARPOL, and the effect on other countries and our relations with them.”

However, Heckler applied this exception specifically to an agency’s decision not to act. Following Heckler, the Ninth Circuit has emphasized that this exception is “limited to those situations in which there is no meaningful standard against which to judge an agency’s decision not to act.” The facts of this case do not fit within that framework. Although the acceptance of the ECA amendment was technically made through a lack of objection, the Court considers it an affirmative decision by the Secretary of State to accept the amendment. Accordingly, the Court finds that the complicated balancing of factors exception does not apply to the facts of this case.

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.” Specifically, it alleges that the Secretary of State’s acceptance of the ECA amendment violated the Treaty Clause and therefore “did not create domestic federal law ... because it was not made by the President with the advice and consent of the Senate” and “was never implemented pursuant to legislation passed by both houses of Congress.” The SAC alleges that to the extent APPS authorized the Secretary of State’s actions, “Congress has unconstitutionally yielded its lawmaking powers and the Senate’s treaty-making role — and those of future Congresses — to the executive branch.”

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. The second cause of action asserts that by authorizing the IMO to make domestic federal law, “APPS amounts to an unconstitutional delegation of Congress’s lawmaking authority to an unaccountable international organization.” The third cause of action asserts that “[t]o the extent APPS permits the Secretary of State to make the IMO’s amendments to Annex VI enforceable domestic law by not rejecting those amendments, Congress unconstitutionally yielded its lawmaking powers and the Senate’s treaty-making role to the executive branch,” thereby violating the separation of powers doctrine and rendering EPA’s enforcement of the North American ECA unconstitutional.

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