"EPA could have set standards that would have reduced smog and protected public health. In addition to smog-forming pollutants such as NOx, large ships in port areas create tremendous health impacts due to airborne particulate pollution which seriously impacts low income communities near port facilities," said Russell Long, Executive Director, Bluewater Network.

The Clean Air Act requires EPA to establish regulations to reduce air pollution from non-automobile engines that significantly contribute to pollution in areas with poor air quality. Based on a 1991 study, EPA determined that the largest type of ship engines – called "Category 3" engines – were a "substantial" contributor of important pollutants, including NOx and particulate matter.

EPA claims it does not need to regulate these engines because an international agreement – called Annex VI to the International Convention on the Prevention of Pollution from Ships (MARPOL) – limits NOx emissions. However, as Bluewater Network made clear to EPA before the rule was finalized, Annex VI is not an enforceable agreement and is unlikely to be anytime soon. The agreement will only go into effect when countries responsible for at least 50 percent of the world's shipping traffic ratify the treaty. So far only two nations have done so, and they represent only 5 percent of the world shipping. Although the United States has signed Annex VI, the Clinton administration has not even asked the Senate for the necessary permission to ratify it.

"EPA's refusal to regulate emissions from these ships is not only illegal, it places an unnecessary obstacle in the way of efforts to improve U.S. air quality," said Martin Wagner, attorney for Earthjustice Legal Defense Fund. "While cities work to clean up land-based pollution sources and Californians take their vehicles in for smog checks, unregulated cargo ships, tankers, and cruise ships keep belching pollution into our cities. An unenforceable international treaty does not allow EPA to abandon its responsibility to regulate pollution in the United States."