West Coast Ports

Special Report

COMMENTARY

By Mike Jacob

Should states be able to decide which ships are allowed to call their ports ?

Last year marked 200 years of the Commerce Clause jurisprudence that underpins the modern , national American economy . In 2025 , we may need to protect it .

In 1824 , the US Supreme Court decided Gibbons v . Ogden , the first major case to interpret the constitutional power of Congress to “ regulate commerce among the several states ,” commonly known as the Commerce Clause . To reach this decision , the court struck down a significant restriction on which ships were allowed access to navigation and an individual state ’ s seaports . As a result , Gibbons created the legal underpinnings of a unified national economy .

The specific legal question at issue in Gibbons was whether one state could deny access to ships from other states based on their means of propulsion — i . e ., the use of a steam engine instead of sail . But the bigger implication of the question was whether the country would return to the fractured multi-state economy that existed under the Articles of Confederation .

In 2024 , the environmental advocacy group Pacific Environment did not celebrate Gibbons ’ bicentennial ; instead , it started advocating for the state of California to institute a “ port access fee ” based on “ the carbon intensity of ship engines .”

In a May 2024 report , Pacific Environment proclaimed that California should “ lead the world to reduce emissions from ocean cargo ships , lower climate impacts , and improve air quality around ports .”

The justification ? The California “ State Legislature is relatively nimble compared to the US Congress and less affected by national politics .” In the early 1800s , before canals and railroads opened up the interior of the continent , the introduction of steam propulsion on ships revolutionized commerce by virtually eliminating physical constraints on river trade . The state of New York wanted to limit the means of propulsion of ships calling on its ports , at the expense of free trade , competition , consumers and the burgeoning US economy .

As a result , the Supreme Court in Gibbons needed to decide if New York could constitutionally restrict navigation by barring certain types of vessels from its ports based on their use of a steam engine . And to answer this , the young nation ’ s highest court first had to grapple with another , larger question : If the

Constitution guarantees free rights of navigation to ships under the Commerce Clause , then is New York ’ s ban preempted ?

The Gibbons decision minced no words . “ All America understands , and has uniformly understood , the word ‘ commerce ’ to comprehend navigation ,” the court said . The Constitution granted the federal government authority over “ commercial intercourse between nations , and parts of nations ,” and “ the power over commerce with foreign nations , and among the several states is vested in Congress as absolutely as it would be in a single government .”

California proposals

In Southern California in 2023 , the staff of the South Coast Air Quality Management District ( AQMD ) started a process to consider indirect regulation of ship propulsion systems , regulation that would penalize ports or marine terminals that did not “ route cleaner ships ” or require “ new , cleaner vessel designs ” for vessels calling at the nation ’ s busiest container port complex in Los Angeles and Long Beach . AQMD ’ s board has yet to decide if the staff ’ s proposed concepts will proceed .

California ’ s air regulators are also starting a discussion in 2025 around reducing emissions from oceangoing vessels in transit . But whether they stick to incentives and voluntary measures in support of federal and International Maritime Organization standards or they take the bait of Pacific Environment ’ s proposed ship engine regulations remains to be seen .

If the state or a local air district acts directly to restrict the means of vessel propulsion as a condition of access to state seaports , it would be a novelty — the first direct test of Gibbons ’ rules and its conclusion that the right of navigation is commerce , and therefore the province of Congress and the federal government .

After 200 years of building the world ’ s largest economy on the settled Commerce Clause jurisprudence of Gibbons , no one has been reckless enough to try to upend it .

Mike Jacob is president of the Pacific Merchant Shipping Association ( PMSA ).

email : mjacob @ pmsaship . com

32 Journal of Commerce | February 3 , 2025 www . joc . com