Some Californians still remember the casino gambling boats that, decades ago, were anchored off the Los Angeles coastline. In the 1930s, gambling was illegal in California, but people could take a ferry and board the Rex, a floating casino anchored just three miles from the coast.  The state’s territorial boundary—and thus its jurisdiction to enforce its laws— ended three miles from its coastline.  Eventually, California ended the practice of allowing offshore gambling when the Attorney General unilaterally sent law enforcement to lay siege to the Rex and sink its gambling equipment, a move that was challenged as unconstitutional at the time.

Similarly today, California seeks to regulate maritime activity off its coast in ways that appear constitutionally suspect.  In 2007, the California Air Resources Board (CARB) enacted regulations to reduce ocean-going vessel emissions, measured by limits on certain chemicals in diesel fuel.  The rules were to be enforced against vessels traveling within twenty-four miles of the California coastline, which is twenty-one miles beyond the state’s territorial boundary.  The Pacific Merchant Shipping Association (PMSA) challenged the regulations in court, and the Ninth Circuit held that the emissions caps were preempted by the Clean Air Act (CAA).  CARB subsequently retooled the regulations, framing them as direct fuel content requirements instead of emissions caps, and enacted the current Vessel Fuel Rules (VFR) in 2009.  California’s claim that it has the power to prescribe specific fuel content requirements for vessels traveling in interstate and international waters is a relatively novel contention. No state has ever asserted such a broad extraterritorial regulatory authority, especially in light of the historic constraints placed on state regulation under federal maritime law.

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