Petition for Writ of Certiorari — United States v. Locke

Supreme Court, u.s.

FILED

281706 Apr 23 1999

No.

IN THE

Supreme Court of the United States

OctosBer Term, 1998

THE INTERNATIONAL ASSOCIATION OF INDEPENDENT

TANKER OWNERS (INTERTANKO),

Petitioner,

v.

GARY LOCKE, Governor of the State of Washington;

CHRISTINE O. GREGOIRE, Attorney General of the State

of Washington; BARBARA J. HERMAN, Administrator

of the State of Washington Office of Marine Safety;

DAVID MACEACHERN, Prosecutor of Whatcom County;

K. CARL LONG, Prosecutor of Skagit County; JAMES H.

KRIDER, Prosecutor of Snohomish County; NORMAN

MALENG, Prosecutor of King County; NATURAL RESOURCES

DEFENSE COUNCIL; WASHINGTON ENVIRONMENTAL

COUNCIL and OCEAN ADVOCATES,

Respondents.

On Petition for a Writ of Certiorari

to the United sates Court se Appeen vac the Ninth Circuit

C. JONATHAN BENNER

Counsel of Record

SEAN T. CONNAUGHTON

Tmt E. NICKERSON

ECKERT SEAMANS CHERIN

& MELtott, LLC

Attorneys for Petitioner

1250 24th Street, N.W.

Suite 700

Washington, DC 20037

(202) 659-6600

——————— eee

Ove

i

QUESTIONS PRESENTED

1. Whether federal statutes, regulations and international

treaty commitments of the United States that prescribe

comprehensive standards for tank vessel operations,

personnel qualifications and manning expressly or impliedly

preempt attempts by an agency of the State of Washington to

enforce regulations that impose different standards and

requirements governing the same subject matters aboard the

same tank vessels.

2. Whether an individual state may deny entry to, or

penalize for non-compliance with state safety and

environmental protection regulations, a vessel that has been

found by the vessel’s nation of registry and the United States

Government to be eligible to enter the United States under

multilateral treaty commitments, federal law, and federal

regulations governing safety and environmental protection.

u

RULE 29.6 STATEMENT

The International Association of Independent Tanker

Owners (“Intertanko”), is a trade association whose members

are the owners or operators of tank vessels. Intertanko is

organized as a non-profit entity under the laws of Norway. It

issues no shares of ownership.

STATEMENT OF THE PARTIES

The United States of America sought intervenor status

as a party Appellant in this case before the Court of Appeals

for the Ninth Circuit. It was granted intervenor status on

June 6, 1997. The United States is filing a separate Petition.

Intertanko is serving the United States as a Respondent in

this proceeding. All other parties are listed in the caption.

TABLE OF CONTENTS

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Statement of Jurisdiction ..............00eeeues

Statutory Provisions Involved ................4..

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B. Federal Regulation Of Tanker Operations .. .

C. International Agreements Regulating Tanker

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D. The State Of Washington's Tanker Regulations

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iv

TABLE OF CITED AUTHORITIES

Page

Cases:

American Dredging Co. v. Miller, 510 U.S. 443 (1994)

send rebeperndeadssawatenbeekondasetienirs 15

Askew v. American Waterways Operators, Inc., 411

a SE EOU h'0'sk0 bs ebWanebatbeadanelnue 15, 25

Ballard Shipping Co. v. Beach Shelifish, 32 F.3d 623

te Pe er om em ee 16

Barber v. Hawaii, 42 F.3d 1185 (9th Cir. 1994)... . 16

Beveridge v. Lewis, 939 F.2d 859 (9th Cir. 1991) .. 16

Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483 (9th

Cir. 1984), cert. denied sub nom. Chevron U.S.A.

Inc. v. Sheffield, 471 U.S. 1140 (1985) ...............

poedese sa ccbee eed daub nese 14, 15, 16, 18, 21, 27

City of New York v. FCC, 486 U.S. 57 (1988) ..... 23

Farmers Educational & Cooperative Union of

America v. WDAY, Inc., 360 U.S. 525 (1959) .... 23

Fidelity Federal Savings & Loan Ass'n v. de la Cuesta,

GPO Gas GUE CPE oc tccndcadeaten ce scoeveks 23

Huron Portland Cement Co. v. Detroit, 362 U.S. 440

EOE 66 senses ineeca@iodiabile ciel 15, 16, 21

Cited Authorities

Page

Kelly v. Washington, 302 U.S. 1 (1937) .......... 18, 19

Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355

SEE on abeescunnacdnasichadedcunekenuses 14

Pacific Merchant Shipping Ass'n v. Aubry, 918 F.2d

Se Gs SEED nk. cdbinochaducmodewaakee 16

Ray v. Atlantic Richfield Company, 435 U.S. 151 (1978)

cans cei neetaeene 4, 13, 14, 15, 18, 19, 20, 21, 24, 27

San Diego Building Trades Counsel v. Garmon,

BE ES Ee ae 23

Zschernig v. Miller, 389 U.S. 429 (1968) ......... 26

Statutes:

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Pe EN SECS 6s vi céndvedvcceseuetdabndsie 24

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Cited Authorities

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Cited Authorities

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Pub. L. No. 92-340, 86 Stat. 424 (1972) ..........

Pub. L. No. 95-474, 92 Stat. 1471 (1978) .........

Pub. L. No. 98-89, 97 Stat. $00 (1983) ...........

Pub. L. No. 101-380, 104 Stat. 484 (1990) ........

vill

Cited Authorities

Page

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ix

Cited Authorities

WN DOPE os isch Fe RR COPA Si

WAC §§ 317-21-010 ef seq. ... 2.0...

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United States Constitution:

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Treaties and Conventions:

The International Convention for the Safety of Life at

Sea, 1974 (“SOLAS”) 32 U.S.T. 47, T.LA.S.

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Se EN ET wie dcdsidobdvbabeectoct

International Convention for the Prevention of Pollution

from Ships, 1973, and the Protocol of 1978 Relating

to the International Convention for the Prevention

of Pollution from Ships (“MARPOL 73/78”),

SP Re ce DB Thaacedb belles dace cténcecs

EEC SIE SR aA Tats ONS tak epee irae CES BUR, C1

10

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Cited Authorities

International Convention on Standards of Training,

Certification, and Watchkeeping for Seafarers, 1978

(“STCW”), and 1995 Amendments, S. Treaty Doc.

POO, SS, Ges PO a dA ee ks Ce

PORE EE. 9 i's bien ecickaoa eke eae oe

Convention on the International Regulation for

Preventing Collisions at Sea, 1972 (“COLREGS”),

T.LA.S. No. 8587, reprinted in 12 1.L.M. 734 (1973)

ede tit et i ehh eka eh oe eT ee ee eee

United Nations Convention on the Law of the Sea

(“UNCLOS”), reprinted in 21 1.L.M.1261 .....

18 Weekly Comp. Pres. Docs. 887 (1982) ........

Agreement for a Cooperative Vessel Traffic

Management System for the Juan de Fuca Region

(“U.S./Canada Bilateral”), 32 U.S.T. 377, T.1.A.S.

Ok OD ais Shins oh ¥ a Cicer A Ce

Other Authorities:

Craig H. Allen, Federalism in the Era of International

Standards: Federal and State Government

Regulation of Merchant Vessels in the United States

(Parts I-III), 29 J. Mar. L. & Com. 335 (1998), 29 J.

Mar. L. & Com. 565 (1998), 30 J. Mar. L. & Com.

SPRUCSED oi vi biscdelnbeekveees ca

Page

10

9,17

xi

Cited Authorities

Page

Charles L. Coleman, III, Federal Preemption of State

“BAP” Laws: Repelling State Borders in the Interest

of Uniformity, 9 U.S.F. Mar. L.J. 305 (1997) .... 17

Laurie L. Crick, The Washington State BAP Standards:

Case Study in Aggressive Tanker Regulation, 27

J. Mar. L. & Com. 641 (1996) .. 0... ccc ecees 17

Robert E. Falvey, A Shot Across the Bow: Rhode

Island's Oil Spill Pollution Prevention and Control

Act, 2 Roger Williams U.L. Rev. 363 (1997) .... 17,18

Matthew P. Harrington, Necessary and Proper, but Still

Unconstitutional: The Oil Pollution Act's Delegation

of Admiralty Power to the States, 48 Case W. Res.

Bo os SPR RRRRP TEA SR cca ate 17

Sarah A. Loble, /ntertanko v. Lowry: An Assessment of

Concurrent State and Federal Regulation Over State

Waters, 10 U.S.F. Mar. L.J. 27 (1997) ......... 17

Michael P. Mullahy, States’ Rights and the Oil

Pollution Act of 1990: A Sea of Confusion?, 25

ae, a ee 17

Marva Jo Wyatt, Navigating the Limits of State Spill

Regulations: How Far Can They Go?, 8 U.S.F. Mar.

Sis EE DS din ode see CENA ARS RA LD RK OE Gi 17

a A ee rr 10

S. Treaty Doc. No. 96-1, C.T.LA. No. 7624 ....... 9

xu

APPENDIX

(submitted as a separate volume)

l

OPINIONS BELOW

The order and amended opinion of the Court of Appeals,

International Ass'n of Independent Tanker Owners v. Locke, Docket

No. 97-35010, is reported at 148 F.3d 1053 (Pet. App. A.) The opinion

of the district court granting summary judgment against petitioner

Intertanko and denying Intertanko’s motion for summary judgment,

International Ass'n of Independent Tanker Owners v. Lowry, Docket

No. C95-1096C, is reported at 947 F. Supp. 1484. (Pet. App. B.) The

Order of the Court of Appeals denying rehearing and rehearing en

banc, including the dissenting opinion of Judge Graber, is reported

at 159 F.3d 1220. (Pet. App. C.)

STATEMENT OF JURISDICTION

The Court of Appeals entered judgment on June 18, 1998, and

amended that order on August 31, 1998. (Pet. App. A.) Rehearing

and suggestion for rehearing en banc were denied on November 24,

1998. (Pet. App. C.) The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. § 1254(1).'

STATUTORY PROVISIONS INVOLVED

In 1995, the State of Washington's Office of Marine Safety

(“OMS”) promulgated as final rules Best Achievable Protection

(“BAP”) regulations governing tank vessel design, construction,

operation, manning and personnel qualifications pursuant to Chapter

88.46 of the Laws of the State of Washington.’ These regulations are

published at §§ 317-21-010 et seq. of the Washington Administrative

1. The United States of America sought and received two extensions of

time in which to file a petition for a writ of certiorari in this matter. In each

instance, petitioner Intertanko filed conforming requests. On February 17,

1999, Justice O'Connor granted an extension of thirty days to and including

March 24, 1999. On March 15, 1999, Justice O'Connor granted an extension

to and including April 23, 1999.

2. Since the commencement of litigation in the United States District

Court, the State of Washington has reorganized the Office of Marine Safety

and placed its functions within the State’s Department of Ecology.

.

a

Code (“WAC”). Federal regulations that impose differing standards

on the same vessels are promulgated pursuant to Titles 33 and 46 of

the United States Code. A table setting forth the coincidence between

the subject matters of the challenged Washington State regulations

and federal regulations, statutes and treaties is provided in the

Appendix to this Petition. (Pet. App. K, 349a-353a.) The decisions

of the courts below also place significant reliance on section 1018 of

the Oil Pollution Act of 1990 (“OPA 90”) (33 U.S.C. § 2718).

STATEMENT OF THE CASE

A. BACKGROUND

Intertanko asks the Court to review whether federal marine safety

and environmental protection standards applicable to vessels operating

in interstate and foreign commerce can be supplanted by differing

Standards imposed by the individual states. Because many of the

regulatory requirements at issue derive from international treaty

commitments of the United States, the issues for which Intertanko

seeks review include the extent to which individual states may elect

to depart from safety and environmental protection requirements and

implementing mechanisms that enter U.S. law through accession by

the federal government to international agreements.

Intertanko is an international trade association whose 280

members own or operate more than 2,000 tankers of U.S. and foreign

registry. Some of these tankers call at ports in Washington State or

transit through Washington State waters en route to destinations in

other jurisdictions of the United States or Canada. The particular focus

of this petition is a court of appeals decision from the Ninth Circuit

that largely rejected assertions by Intertanko and intervenor below,

the United States of America, that federal standards addressing tank

vessel design, equipment, operations, personnel qualifications and

manning preempt an agency of the State of Washington (“the State”)

from imposing regulations that propound divergent standards

governing the same subject matters. Although the Court of Appeals

correctly determined that federal law compelled a finding that the

State's OMS had acted unlawfully in imposing design, equipment

3

and technology requirements on tankers operating in interstate and

foreign commerce, the court lett in place state regulations that it

described generally as “operational” requirements, i.e., matters such

as navigation, personnel qualifications and management practices

(including inspections, position plotting, manning of the bridge and

engine room, event reporting, gyrocompass checks, drug and alcohol

testing, work hour limits, language proficiency, and crew training).

(Pet. App. A at 28a-32a.) Federal law addresses these subjects

extensively in statutes, regulations, and international agreements to

which the United States is a party.

B. FEDERAL REGULATION OF TANKER OPERATIONS

The current federal regulatory structure addressing tanker safety

and marine environmental protection primarily rests on the Ports and

Waterways Safety Act (“PWSA”), Pub. L. No. 92-340, 86 Stat. 424

(1972), as amended, a comprehensive body of marine safety and

environmental protection regulations issued by the United States Coast

Guard pursuant to delegation from the Secretary of Transportation

(“Secretary”), and an extensive set of international maritime safety

and environmental treaties. All of these federal sources of tank vessel

regulation are “the supreme law of the land.” U.S. Const. art. VI,

cl. 2. Given the mobile and international nature of the maritime

industry, this body of law depends on both national and international

uniformity and coordination for its effective operation.

The PWSA contains two titles. Title I, located at 33 U.S.C.

§§ 1221-1227, permissively authorized (“the Secretary may. . .”) the

Secretary to establish vessel traffic control systems, to restrict

operation of tankers not having specified capabilities, and to negotiate

international treaties on vessel safety. Title II of the PWSA employed

mandatory language that required (“the Secretary shall ...”) the

Secretary to adopt uniform federal regulations for tanker design,

construction, equipment, and operation. 46 U.S.C. § 3703. The

Secretary's obligations under this statute have been delegated to the

United States Coast Guard. 46 U.S.C. § 2104. The distinction between

the discretionary subject matters of Title I, subject matters not directly

implicated in this litigation, and the mandatory requirements of Title

4

II, subject matters at the core of this case, was addressed by the Court

in its 1978 decision, Ray v. Atlantic Richfield Company, 435 U.S.

151 (1978) (referred to herein either as “Ray v. ARCO” or “Ray’).* In

Ray, the Court assessed prior efforts by the State of Washington to

assert regulatory jurisdiction over federal tank vessel regulation

subject matters. The decision struck down all Washington State

regulations then at issue that invaded Title If PWSA subject matters

of design, construction, and equipment requirements. Importantly,

the Court in Ray let stand only the State's tug escort requirements

that were deemed within Title | PWSA discretionary subject matters:

... the relevant inquiry under Title I with respect to the

state's power to impose a tug escort rule is thus whether

the Secretary has either promulgated his own tug

requirement for Puget Sound tanker navigation or decided

that no such requirement should be imposed at all.

Ray, 435 U.S. at 171 (emphasis added). The Court further observed

that “[i]t may be that rules will be forthcoming that will preempt the

State's tug escort rule, but until that occurs, the state’s requirement

need not give way under the Supremacy Clause.” 435 U.S. at 172.

Since Ray, the subject matters and breadth of tank vessel

regulations and requirements mandated by Congress have expanded

dramatically. In 1978, the PWSA was enlarged by the Port and Tanker

Safety Act (“PTSA”), Pub. L. No. 95-474, 92 Stat. 1471 (1978)

(“PWSA/PTSA”). The PTSA largely reissued the PWSA and

stipulated further design, equipment, operations, personnel, manning,

and training requirements for U.S. and foreign tankers operating in

U.S. waters.

3. The discretionary Title I, although authorizing the Secretary to

establish minimum standards for structures in or adjacent to navigable waters,

expressly preserved to the states authority to prescribe “higher” safety

equipment requirements or standards for such structures (e.g., bridges and

piers). This Court in Ray v. ARCO, read this express grant of state authority

with regard to structures as indicating an intent to preempt the states from

prescribing more demanding requirements for vessels. Ray v. ARCO, 435 U.S.

151, 174 (1978).

5

In 1983, for the purpose of establishing one clear and concise

scheme of marine safety laws, Congress enacted Subuitle II of Title

46, United States Code, (“Shipping”), Pub. L. No. 98-89, 97 Stat.

500 (1983), as amended. This codification included existing provisions

of Title Il of PWSA. Title 46 is a detailed and expansive statute

governing marine safety and environmental protection. Under Title

46, the Secretary is accorded broad powers of superintendence over

the Merchant Marine and is authorized to prescribe regulations to

carry out the provisions of the law. 46 U.S.C. § 2103.* Congress has

enacted various other amendments to Title 46, the most recent in

1998.

The process of enlarging the extent and complexity of Title 46

continued in 1990 when Congress enacted additional changes to Title

46 in the Oil Pollution Act of 1990, Pub. L. No. 101-380, 104 Stat.

484 (1990). Title IV of OPA 90 (“Prevention and Removal”) expanded

yet again the already substantial federal presence in the field of tank

vessel design, construction, personnel, equipment and operations with

explicit mandates to the Secretary (“the Secretary shall .. .”) to

promulgate new marine safety and environmental regulations.’ An

additional expressed purpose of OPA 90 was to create uniform federal

oil pollution liability law. Prior to 1990, four different federal statutes

addressed such requirements. These were: the Deepwater Ports Act;

4. The discretionary elements of Title | of PWSA remain uncodified

and are placed in Title 33 of the United States Code (“Navigable Waters”).

5. Title 1V OPA 90 amendments include: mandatory review of alcohol

and drug abuse and other maf's:s in issuing licenses and merchant mariners’

documents (§ 4101); renewal periods for licenses and documents (§ 4102);

suspension and revocation of licenses and documents for alcohol and drug

abuse (§ 4103); manning standards for foreign tank vessels (§ 4106); vessel

traffic systems (§ 4107); periodic gauging of plating thickness of tankers

(§ 4109), overfill and tank level or pressure monitoring devices (§ 41 10); study

of tanker navigation safety standards (§ 4111); tank vessel manning (§ 41 14),

double hull construction for tank vessels (§ 4115); and pilotage criteria

(§ 4116). Elements of OPA dealing with liability and compensation were placed

in Title 33, while provisions addressing vessel design, operation, equipping,

personnel qualification and manning specifically amended Title 46. (Pet. App.

F at 222a-261a.)

6

the Outer Continental Shelf Land Act; the Trans-Alaska Pipeline

Authorization Act; and the Federal Water Pollution Control Act. Each

of these four laws conts*ned express language permitting states to

impose their own liability or other requirements related to the

discharge of oil into their waters. OPA 90 consolidated these various

pre-existing authorities and preserved the flexibility that the States

and their subsidianes had been permitted under earlier law. Under

Title | of OPA (“Oil Pollution Liability and Comp :nsation”) Congress

carned forward pre-existing savings language tum these other statutes

and made clear its non-preemptive intent “in this chapter [OPA 90]”,

the Solid Waste Disposal Act, or section 9509 of the Internal Revenue

Code not to affect

the authority of the United States or any State or political

subdivision thereof (1) to impose additional liability or

additional requirements . .. relating to the discharge or

substantial threat of a discharge, of oil.

33 U.S.C. § 2718(c). The decision of the Court of Appeals was based

In significant part on its perception that this savings provision of OPA

provided compelling evidence of a Congressional determination to

permit state action in vessel operations, personnel qualifications,

manning and training subject matters.

Broad authority is imparted to the Secretary to regulate tankers

under Chapter 37 of Title 46, which addresses carriage of dangerous

liquid bulk cargoes, including oil, by commercial vessels. Section

3703(a) states emphatically that the Secretary

shall prescribe regulations for the design, construction,

alteration, repair, maintenance, operation, equipping,

personnel qualification, and manning of vessels to which

this chapter applies, that may be necessary for increased

protection against hazards to life and property, for

navigation and vessel safety, and for enhanced protection

of the marine environment.

7

46 U.S.C. § 3703(a) (emphasis added). The italicized subject matters

directly correspond to the subject matters of the remaining State of

Washington tank vessel regulations. Chapter 37 further requires the

establishment of minimum standards for self-propelled tankers

(46 U.S.C. § 3708), and requires foreign vessels to show evidence of

compliance with Chapter 37 and regulations prescribed thereunder

(46 U.S.C. § 3711). Other pertinent provisions of Title 46 include:

(1) Part D, which requires the Secretary to establish procedures for

reporting and investigating marine casualties; (2) Part E, which

governs personne! licensing and qualifications; and (3) Part F, which

gives the Secretary control over vessel manning.

Section 9101 of Title 46 establishes standards for foreign tank

vessels, and directs that the “Secretary shall evaluate the manning,

training, qualification, and watchkeeping standards of a foreign

country that issues documentation for any vessel to which chapter

37” of Title 46 applies. If the Secretary determines that a country has

failed to maintain or to enforce standards at least equivalent to those

required by United States law or international standards accepted by

the United States, the Secretary may prohibit vessels issued

documentation by that country from entering the United States.

46 U.S.C. § 9101.

Title 46 expressly authorizes the states to regulate marine affairs

only for limited purposes: recreational vessel casualty reporting

(46 U.S.C. § 6102), piloting (46 U.S.C. § 8501). recreational vessel

titling and registration (46 U.S.C. chs. 122 and 125), and recreational

boating safety (46 U.S.C. ch. 131). No other state action in marine

safety and environmental protection is expressly authorized by Title

46.

In addition to these statutes, there exists a vast network of federal

requirements. Many of these regulations governing federal subject

matters of design, construction, operations, personnel qualifications

and training, manning and management practices contain express

preemptive statements declaring a federal judgment that state action

is precluded. Examples of these preemptive statements by the United

States Coast Guard have been included in the appendix to this Petition.

(Pet. App. H, 269a-289a.) Intertanko relied below, and continues to

rely here, on these express preemptive statements as compelling

indication that state action is barred in these federal subject matters.

C. INTERNATIONAL AGREEMENTS REGULATING

TANKER OPERATIONS

A unique feature of federal law governing marine safety and

environmental protection is its close integration with comprehensive

vessel standards established through international agreements with

other maritime nations. Since the loss of the Titanic in 1912, and

particularly since the 1970s, the United States and other leading

maritime nations have promoted the establishment of internationally

accepted uniform marine safety and marine environmental protection

standards. These international commitments, once agreed to by the

federal government, are taken into the corpus of federal statutes and

regulations by operation of Article VI of the Constitution and by the

practical necessity of conforming U.S. requirements and procedures

to those committed to in international agreements. Titles 33 and 46,

for example, contain several provisions concerning international

marine safety and environmental protection requirements and the

necessity of implementing those standards in an atmosphere of

international comity and reciprocity.°

Intertanko substantially relies on four international agreements

that affect the Court's review of this case: The International

Convention for the Safety of Life at Sea, 1974 (“SOLAS”) and its

amendments, the bedrock international agreement regarding maritime

6. See, e.g., 46 U.S.C. § 3303(a) (“A foreign country is considered

to have inspection laws and standards similar to those of the United

States when it is a party to an International Convention for Safety of

Life at Sea to which the United States is currently a party”); 46 U.S.C.

§ 3711 (“The Secretary may accept any part of a certificate,

endorsement, or document issued by the government of a foreign

country under a treaty, convention, or other international agreement

to which the United States is a party, as a basis for issuing a [U.S.]

certificate of compliance”).

9

safety (Pet. App. I at 293a);’ the International Convention for the

Prevention of Pollution from Ships, 1973, and the Protocol of 1978

Relating to the International Convention for the Prevention of

Pollution from Ships (“MARPOL 73/78"), which set international

standards to prevent pollution from ships in the marine environment

(including Annex I of MARPOL 73/78, which regulates tankers) (Pet.

App. I at 296a);* the International Convention on Standards of

Training, Certification, and Watchkeeping for Seafarers, 1978

(“STCW”), and its 1995 Amendments, which set international

standards regarding the operation of vessels, training and

qualifications of seamen (Pet. App. I at 290a);’ and the Convention

on the International Regulation for Preventing Collisions at Sea, 1972

(“COLREGS”), which provides mandatory rules for ships underway

as well as standardized light and sound requirements for vesse!s. (Pet.

App. I at 306a.)'° Each of these conventions has been signed, ratified,

executed and implemented by this country in accordance with the

requirements of the particular convention and the Constitution of the

United States. U.S. Const. art. II, § 2, cl. 2. Each of these agreements

is, by operation of Article VI of the Constitution, the “supreme law

of the land.” In addition to these four agreements, elements of the

United Nations Convention on the Law of the Sea (“UNCLOS”)'"'

and the Agreement for a Cooperative Vessel Traffic Management

System for the Juan de Fuca Region (“U.S./Canada Bilateral”)'? are

7. 32 U.S.T. 47, T.LAS. No. 9700.

8. 17 LL.M. 546.

9. S. Treaty Doc. No. 96-1, C.T.LA. No. 7624.

10. T.LA.S. No. 8587, reprinted in 12 1.L.M. 734 (1973).

11. Reprinted in 21 LL.M. 1261 (1982). In 1982 President Reagan, while

acknowledging that the provisions of this agreement reflected established

customary international law and thus would be followed by the United States,

opposed U.S. accession to this agreement because of its elements governing

deep seabed mining. See 18 Weekly Comp. Pres. Docs. 887 (1982).

12. 32 U.S.T. 377, T.LAS. No. 9706.

10

relevant to the preemption analysis that must be undertaken in

reviewing the Court of Appeals’ decision.

Under these international conventions, the national government

of the United States undertook or has acknowledged certain

obligations. These obligations include implementing and enforcing

the conventions on both U.S. vessels and foreign vessels in U.S. ports.

Treaty obligations require the United States to accept certifications

by other signatory states that their vessels and crews comply with

international safety law.'’ Moreover, federal statutes specify

reciprocity for foreign certificates. See 46 U.S.C. § 3303(a) and

33 U.S.C. § 1903(b).

D. THE STATE OF WASHINGTON’S TANKER

REGULATIONS

Against this comprehensive array of federal and international

standards stand the Washington State Regulations that provoked this

litigation. The regulations were issued pursuant to Chapter 88.46 of

the Revised Code of Washington. This statute (R.C.W. §§ 88.46.010,

et seq.) was enacted by the Washington State Legislature and became

effective on July 1, 1991. The statute contains various provisions

requiring owners and operators of tank vessels to file oil spill

prevention and response plans with OMS. Failure to file acceptable

plans subjects violators to statutory penalties and a prohibition on

calling at Washington ports. R.C.W. §§ 88.46.070; 88.46.080;

88.46.090.

R.C.W. § 88.46.040(3), provides that the State’s Office of Marine

Safety “shall only approve a prevention plan if it provides the best

achievable protection from damages caused by the discharge of oil

into the waters of the state. . . .” (Pet. App. J at 347-48a.) Pursuant to

R.C.W. §§ 88.46.010(2) and 88.46.010(3), OMS is to define the term

“Best Achievable Protection” by regulation. Section 88.46.040(1)

provides that “the office [OMS], by rule, shall establish standards for

13. SOLAS, Chap. I, Regulation 17 (Pet. App. I at 293a); MARPOL 73/

78, Article 5 (Pet. App. I at 296a); STCW, Article X. (Pet. App. I at 290a).

spill prevention plans.” (Pet. App. J at 346a.) These requirements are

applicable to all vessels not just tank vessels. The State of Washington

has taken the position that the application of these regulations extends

to tankers merely transiting Washington State waters, including vessels

en route to ports in Oregon or Canada.

The current “bcst achievable protection” standards were adopted

by OMS, promulgated as binding rules as part of WAC § 317-21 and

became effective in July 1995. Under WAC § 317-21-500, an owner

or operator of a tank vessel who fails to comply with the regulations

is subject to the following administrative actions: (1) plan disapproval;

(2) restriction of the tank vessel's movements or operations in state

waters, or both; (3) assessment of civil penalties under R.C.W.

§ 88.46.090; (4) referral for prosecution under R.C.W. § 88.46.080;

or (5) denial of entry into state waters.

The BAP Regulations imposed detailed restrictions on the

manning, training, operation and safety and equipage of oil tankers

in Washington waters. These restrictions and requirements are

accurately summarized in Part I of the Court of Appeals decision.

(Pet. App. A at 10a-13a.) The BAP Regulations require, among other

things, safety-related event reporting; security rounds and position

plotting while at anchor; engine room and engine control room

staffing; vessel position recording every 15 minutes while underway;

comprehensive voyage planning; frequent navigation checks of the

tanker’s gyrocompass; hourly steering gear room inspections; pre-

arrival tests and inspections; emergency operating procedures; state

access to navigation records; comprehensive training programs,

position-specific training, refresher training, and shipboard drills;

random, pre-employment, probable cause and post-accident drug and

alcohol testing; personnel performance reviews; work hour limits; a

common language for crew members; training and work hour records

maintenance; a “Safety and Environmental Protection Management

System”; quarterly vessel visitation program; preventive maintenance

program, a critical area inspection program; and advance notice of

vessel entry and safety reports. (Pet. App. J, 307a-345a.) |

12

Each of the State of Washington requirements coincides directly

with the subject matters and purposes of federal regulations, statutory

requirements and international undertakings of the United States. This

coincidence of subject matters, purpose and content is extensive and

is the foundation of Intertanko’s contention that conditions of explicit

and implied federal preemption act to invalidate the state agency’s

regulations under Supremacy Clause principles.'* (Pet. App. K, 349a-

353a.)

E. PROCEDURAL .""*STORY

On July 17, 1995, Intertanko filed a complaint seeking injunctive

and declaratory relief in the United States District Court for the

Western District of Washington (“district court’). Intertanko argued

that the BAP regulations are preempted by federal law and

international treaties and, therefore, pursuant to the Supremacy Clause,

the Commerce Clause and federal powers in the domain of foreign

affairs, they should be declared void. Additionally, Intertanko argued

that the BAP regulations created constitutionally impermissible

conflicts with international obligations of the United States. Intertanko

cited express statements by the United States Coast Guard as evidence

of federal preemptive intent and urged the district court to find both

express and implied preemption by federal authority as a basis for

invalidating the OMS regulations. Finally, Intertanko contended that,

because the State regulations necessarily required shipowners, crews

and vessels outside the State of Washington and the United States to

comply with their requirements in order to qualify for eventual

admission to Washington waters, they resulted in an impermissible

extraterritorial application of State power.

Ruling on cross motions for summary judgment, the district court

(Coughenour, J.) concluded that all challenged state regulations were

constitutionally valid, that no condition of field preemption existed

with respect to any of the regulations, that the BAP regulations did

14. The Chart attached as Appendix K compares the federal statutes,

regulations and international maritime obligations of the United States with

all the BAP regulations to illustrate the relationship and overlap between the

components of the federal system and each of the BAP regulations.

13

not violate the Commerce Clause or impinge on the foreign affairs

powers of the national government, and were not improper

extraterritorial projections of state powers. The district court also

concluded that express preemptive statements of the United States

Coast Guard regulations were beyond the statutory authority of the

Coast Guard. (Pet. App. B at 61a-63a.)

Intertanko filed a Notice of Appeal from the district court's

decision. The United States of America intervened in general support

of Intertanko’s position that certain of the BAP regulations were

incompatible with federal requirements and international

commitments.’ After hearing oral argument, the Court of Appeals

issued an Order on June 18, 1998, affirming in part and reversing in

part. An amended opinion issued on August 31, 1998. The Court of

Appeals found that WAC § 317-21-265, requiring certain radar and

global positioning system (“GPS”) receivers and specialized towing

equipment was “virtually indistinguishable” from a similar regulation

invalidated by this Court in Ray, 435 U.S. at 160-61, and, therefore,

was preempted by PWSA. (Pet. App. A at 30a-31a.) With regard to

the remainder of the state regulations, however, the Court of Appeals

held that the BAP regulations were not preempted either by this

Court’s analysis in Ray, or by regulations implemented by the Coast

Guard.

The Court of Appeals commenced its analysis by weighing the

non-preemptive effect of section 1018 of OPA 90 (33 U.S.C. § 2718).

Concluding that section 1018 had non-preemptive effect for the

entirety of OPA 90, the court nonetheless considered whether section

1018 could have impact beyond OPA 90 to the sources of preemption

advanced by Intertanko — specifically, the PWSA and federal

regulations that coincided with the subject matters of the State’s BAP

15. Although agreeing with Intertanko that certain of the challenged

State regulations were preempted, the United States also posited that some

might not be and urged the Court of Appeals to reverse the district court's

grant of summary judgment to the State and return the matter to the district

court for additional proceedings with instructions on the correct application

of preemption principles to the facts of the case. (Rec., Brief for Intervenor

United States at 55-56.)

14

standards. The court concluded that OPA 90, “as the most recent

statute in the field,” and its section 1018 savings provision reflect

“ ‘the full purposes and objectives of Congress’ better than the PWSA,

the PTSA, or the Tank Vessel Act, all of which OPA 90 was designed

to complement.” (Pet. App. A at 21a.) The court further stated that

section 1018 “demonstrates Congress’s willingness to permit state

efforts in the areas of oil-spill prevention, removal, liability, and

compensation.” (Pet. App. A at 22a.) Intertanko’s arguments

concerning incompatibility with international agreements were

dismissed by reason of the Circuit's 1984 conclusion in Chevron

U.S.A., Inc. v. Hammond, 726 F.2d 483, 493-94 (9th Cir. 1984), cert.

denied sub nom. Chevron U.S.A., Inc. v. Sheffield, 471 U.S. 1140

(1985) (“Chevron” or “Chevron v. Hammond ”), that

“international agreements set only minimum standards,

that strict international uniformity was unnecessary, and

that standards stricter than the international minimums

could be desirable in waters subject to federal jurisdiction.”

(Pet. App. A at 23a.) The court declined to consider arguments

advanced by the United States that the State regulations further

conflicted impermissibly with “innocent passage” elements of

UNCLOS and the U.S./Canada Bilateral Agreement on the grounds

that these issues were being raised for the first time on appeal. (Pet.

App. A at 24a-25a.) Again relying on the section 1018 OPA 90 savings

provision, the court determined that express preemptive statements

by the Coast Guard in issuing regulations under PWSA and other

federal statutes rendered such statements beyond the “scope of [the

Coast Guard’s] congressionally delegated authority,” citing to this

Court's decision in Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S.

355, 374-75 (1986). (Pet. App. A at 33a-34a.) Finally, the strong

reliance of Intertanko and the United States on the rationale of Ray

as compelling a field preemption conclusion was rejected on the basis

that Ray’s determination that Washington State design, construction

and equipment requirements were incompatible with Title II PWSA

subject matters was limited to those particular subject matters and

did not extend to other elements (e.g., operations, personnel

qualifications and training, and manning) of Title I] PWSA. (Pet.

15

App. A at 27a-28a, and n.11.) The court cited Chevron v. Hammond as

support for restricting its reading of Ray as confined to design and

construction elements of PWSA. (Pet. App. A at 28a-29a.)

Intertanko and the United States petitioned for rehearing and

rehearing en banc. The Court of Appeals issued its order denying

Intertanko’s request on November 24, 1998. (Pet. App. C, Graber, J.,

dissenting).

REASONS FOR GRANTING THE WRIT

The decision below presents immediate issues of transcendent

importance to the authority of the national government to regulate

maritime commerce and to bind the entirety of the United States to

international commitments concerning marine safety and environmental

protection. The Court of Appeals decision is contrary to Congressional

intent, the express preemptive statements of the federal government, the

reasoning of this Court, and solemn international commitments of the

United States. The decision cannot be coherently reconciled with this

Court’s rationale in Ray v. Arco or with the general line of precedents in

this Court and the lower federal courts. With the qualified and

distinguishable exception of Chevron U.S.A., Inc. v. Hammond, 726 F.2d

483 (9th Cir. 1984), cert. denied subnom. Chevron U.S.A., Inc. v. Sheffield,

471 U.S. 1140 (1985) (“Chevron v. Hammond” or “Chevron’’), all

previous federal cases permitting some degree of state activity in maritime-

related areas either have addressed or have purported to address ancillary,

“secondary” or “off-the-ship” aspects of maritime activity or have been

based explicitly on the absence of a direct federal presence in the subject

matters of the state regulation.'® The Court of Appeals decision grants

16. See, e.g., American Dredging Co. v. Miller, 510 U.S. 443, 450-53

(1994) (no federal preemption of state law of forum non conveniens), Ray v.

Atlantic Richfield, 435 U.S. 151, 171-73 (1978) (federal preemption of all

State regulations addressing vessel design, construction and equipment

requirements, but declining to find preemption where Secretary had not yet

acted on the federal level); Askew v. American Waterways Operators, Inc.,

411 U.S. 325, 341-43 (1973) (permitting State of Florida statute imposing

strict liability for oil spills); Huron Portland Cement Co. v. Detroit, 362 U.S.

(Cont'd)

16

Washington, and, by extension, other maritime jurisdictions within

the Ninth Circuit, license to substitute state requirements for the

federal and international standards that govern these subject matters

in the rest of the United States. Here there is no question that the

subject matters regulated by the State impinge directly on subject

matters addressed by federal statutes, regulations, and treaties to which

the United States is a party. The matter has precipitated diplomatic

protest'’ and has occasioned substantial scholarly comment, the

(Cont'd)

440, 443-45 (1960) (federal licensing of vessels did not preempt municipal

enforcement of local smoke abatement ordinance when vessels are moored

or anchored within City); Barber v. Hawaii, 42 F.3d 1185, 1194, 1197 (9th

Cir. 1994) (state anchorage and mooring regulations for local vessels not

preempted); Ballard Shipping Co. v. Beach Shellfish, 32 F.3d 623, 629 (Ist Cir.

1994) (validating state law on remedies for oil pollution damage under OPA);

Beveridge v. Lewis, 939 F.2d 859, 864 (9th Cir. 1991) (no federal preemption

exists regarding municipal ordinance prohibiting mooring and anchorage of

pleasure vessels where Secretary had not issued federal regulations); Pacific

Merchant Shipping Ass'n v. Aubry, 918 F.2d 1409, 1427 (9th Cir. 1990) (no

preemption of California overtime pay laws where employees involved worked

exclusively in state coastal waters on vessels not engaged in foreign,

intercoastal or coastwide voyages); and Chevron U.S.A., Inc. v. Hammond,

726 F.2d 483 (9th Cir. 1984), cert. denied sub nom. Chevron U.S.A. Inc. v.

Sheffield, 471 U.S. 1140 (1985) (upholding Alaska statute prohibiting oi!

tankers from discharging ballast stored in oil cargo tanks in state waters). As

noted elsewhere in this petition, the Chevron decision was relied upon by the

Court of Appeals as Ninth Circuit authority for the proposition that international

agreements addressing ballast discharges prescribe only minimum standards

which states may exceed. Although Chevron stands out from the other cases

cited in this note because the Ninth Circuit upheld valid state regulation of

vessel ballast disposal, the case was consciously not decided under PWSA,

but instead was based on the pollutant discharge permit issuance requirements

of the federal Clean Water Act, a statute not contended by any party to be

implicated here.

17. See, e.g., Note Verbale from the diplomatic representatives of

Belgium, Denmark, Finland, France, Germany, Greece, Italy, Japan, the

Netherlands, Norway, Portugal, Spain, Sweden and the Commission of the

European Community to the Department of State. (Pet. App. L at 355a-56a.)

Additionally, the United States in its brief to the Ninth Circuit noted that the

(Cont'd)

17

weight of which is critical of the reasoning and conclusions of the

district court and the Court of Appeals.'*

The Court of Appeals’ substantial reliance on a

savings provision of OPA 90 (section 1018), a provision not

previously examined by this Court, raises important questions of

federal law that have not been, but should be, settled by this

(Cont'd)

Government of Canada also has protested the application of the State's

local regulations to international traffic moving through the Strait of

Juan de Fuca and Puget Sound en route to Canadian waters as violative

of The Agreement for a Cooperative Vessel Traffic Management System

for the Juan de Fuca Region (T.1.A.S. 9706, 32 U.S.T. 377). (See Rec.,

Brief for Intervenor United States at 13.)

18. See Craig H. Allen, Federalism in the Era of International

Standards: Federal and State Government Regulation of Merchant

Vessels in the United States (Parts 1-II]), 29 J. Mar. L. & Com. 335

(1998), 29 J. Mar. L. & Com. 565 (1998), 30 J. Mar. L. & Com. 85

(1999): Sarah A. Loble, Intertanko v. Lowry: An Assessment of

Concurrent State and Federal Regulation Over State Waters, 10 U.S.F.

Mar. L.J. 27, 72 (1997); Charles L. Coleman, III, Federal Preemption

of State “BAP” Laws: Repelling State Borders in the Interest of

Uniformity, 9 U.S.F. Mar. L.J. 305, 356 (1997); Robert E. Falvey, A

Shot Across the Bow: Rhode Island's Oil Spill Pollution Prevention

and Control Act, 2 Roger Williams U.L. Rev. 363, 396 (1997); Matthew

P. Harrington, Necessary and Proper, but Still Unconstitutional: The

Oil Pollution Act's Delegation of Admiralty Power to the States, 48

Case W. Res. L. Rev. 1, 17 n.59 (1997); but see Michael P. Mullahy,

States’ Rights and the Oil Pollution Act of 1990: A Sea of Confusion ?,

25 Hofstra L. Rev. 607, 636-37 (1996); Laurie L. Crick, The

Washington State BAP Standards: Case Study in Aggressive Tanker

Regulation, 27 J. Mar. L. & Com. 641, 646 (1996); and Marva Jo Wyatt,

Navigating the Limits of State Spill Regulations: How Far Can They

Go?, 8 U.S.F. Mar. L.J. 1, 26 (1995). With the exception of the more

recent work by Professor Allen of the University of Washington, all of

these articles were cited by Judge Graber in her dissenting opinion

declaring “[t}he preemptive effect of OPA 90 [ ] an issue of exceptional

importance.” (Pet. App. C at 76a-77a, and n.1.)

18

Court.'? Until the matter is settled clearly, there are substantial doubts

as to whether the previously exclusive federal powers over vessel

operations can henceforth have any substantive meaning or effect in

the Ninth Circuit. Beyond the boundaries of the Ninth Circuit, other

states also have considered the enactment of state requiren. ats that

diverge from federal standards.”

The Court has twice previously examined efforts by the State of

Washington to insert itself into the traditionally federal domain of

vessel safety and operations. In both cases it allowed the State but

limited access. In Kelly v. Washington, 302 U.S. 1 (1937), the Court,

19. A more indirect, but potentially damaging element of the decision

that merits review by this Court is its dramatic resuscitation of Chevron vy.

Hammond, a case long limited in its practical effect because of modern tanker

designs and operational procedures, into a distorting prism of Ray and a device

for minimizing the force of treaty commitments. Although the Court in 1985

declined to issue a writ of certiorari to the Circuit to review Chevron, the

exchange recorded between Justice Stevens and Justice White at 471 U.S.

1141 - 1143 suggests that the instant case properly elevates a ripened Chevron,

its negative implications for federal authority no longer dormant or minimal,

to at least indirect attention by the Court. Chevron's facts enabled the Court

of Appeals in 1984 to shift analysis away from the strong preemptive

atmosphere of Title II PWSA and Ray, to a more flexible “shared” or

cooperative federal/state responsibility regime found in the Clean Water Act.

Chevron, 726 F.2d at 495-501. Ray recognizes this distinction in discussing

the CWA’s predecessor: “While those statutes contemplate cooperative state-

federal regulatory efforts, they expressly state that intent, in contrast to PWSA.”

Ray v. ARCO, 435 U.S. 151, 178, n.28. Having been positioned originally as

a non-PWSA case, Chevron returns forcefully in the matter at bar as the Court

of Appeals’ template for interpreting Ray and the preemptive effect of PWSA.

Intertanko submits that this use of Chevron in the instant case, and its direct

restrictive effects on the interpretation of Ray's view of PWSA, are additional

reasons that this Court should now exercise its discretion to issue a writ of

certiorari to the Ninth Circuit.

20. See Falvey, A Shot Across the Bow, supra, note 18 for a description

of recent Rhode Island enactments imposing vessel requirements in that state.

The State of Maine also is considering the issuance of vessel operational

regulations for tankers entering that State's waters.

19

although providing some latitude to State regulation of certain

motor-driven tugboats where no federal statute was applicable

and where federally regulated vessels were expressly excluded,

noted that there existed a:

class of regulations which Congress alone can

provide. For example, Congress may establish

standards and designs for the structure and

equipment of vessels, and may prescribe rules for

their operation, which could not properly be left to

the diverse action of the States. The State of

Washington might prescribe standards, designs,

equipment and rules of one sort, Oregon another,

California another and so on... .

302 U.S at 14-15 (emphasis added).”'

The second instance of Supreme Court review of

Washington State marine regulations was the Ray v. ARCO

litigation. 435 U.S. 151 (1978). In that decision, the Court

struck down all challenged Washington State regulations that

trespassed on mandatory subject matters regulated by Title II

of the PWSA (vessel design, construction and equipment), but

let stand tug escort requirements that were considered covered

by the permissive regulation provisions of Title 1, PWSA. The

State tug escort requirements in Ray, like the motor vessel

inspection requirements of Kelly, had been issued in an area

21. The Court, through Chief Justice Hughes, further observed

that, although the absence of federal inspection regulation for the

class of vessels covered by the challenged state standards spared

the provision from invalidation, if the State had attempted “to

impose particular standards as to structure, design, equipment

and operation” the State would “encounter the principle that

such requirements, if imposed at all, must be through the

action of Congress which can establish a uniform rule.” 302 U.S.

at 15.

20

where the federal government had neither acted nor determined

that action was unnecessary.”

Thus, until the issuance of the decisions by the district court

and Court of Appeals in this case, one reasonably could rely on Ray

and could consider the law well settled that the preeminent and

extensive federal role in regulation of interstate and foreign commerce

vessel activities constrained permissible state and local action to those

subject matters in which Congress had left the Secretary of

The scope and technical complexity of federal marine safety and

environmental protection regulation have expanded immensely in the

two decades since Ray. This vast expansion of the federal presence in

the on-board subject matters of operations, personnel qualifications

and manning, enhances the value of Ray's observation that: “The

Supremacy Clause dictates that the federal judgment that a vessel is

safe to navigate United States waters prevail over the contrary state

judgment.” 435 U.S. at 165. The State of Washington is now asserting

a “contrary state judgment” with regard to tank vessel operations,

personnel qualifications and manning and has done so with the

approval of the Court of Appeals.” Defining with precision the limits

of permissible state incursions presents an important question of

federal law that should be settled by this Court.

22. See Ray, 435 U.S. at 171-72. The Court found that to permit states

to act where Congress intended a “uniform federal regime” and “uniform,

international standards” would violate the Supremacy Clause and frustrate

congressional intent. /d. at 165-68. The Court also reviewed Title I provisions

and found that, where the Secretary had not yet acted, ‘the State's requirement

need not give way under the Supremacy Clause.” /d. at 168-72. The Court did

not rule out the possibility that when the Secretary did issue regulations, that

they “will preempt the State's present tug-escort rule.” /d. at 172.

23. See supra note 6 and accompanying text indicating the views of

Congress that foreign vessels are to be accorded reciprocal treatment and that

the United States, by federal law and treaty obligation, accepts documentation

of foreign vessels as a basis for granting certificates that permit entry into

U.S. waters.

21

In Ray, the Court distinguished previous cases in which some

permitted by noting that:

in none of the relevant cases sustaining the application of

state laws to federally licensed or inspected vessels did

the federal licensing or inspection procedure implement

a substantive rule of federal law addressed to the object

also sought to be addressed by the challenged state

regulations.

Ray v. ARCO, 435 US. at 164.

In this matter, as in Ray, the State regulations are precisely

coincident with subject matters and objectives of federal requirements.

The divide between state and federal objectives that was found, for

example, in Huron Portland Cement Co. v. Detroit, 362 U.S. 440

(1960) (municipal smoke abatement rather than marine safety) and

that was claimed to have existed in the Ninth Circuit's reasoning in

Chevron v. Hammond (pollutant discharges under the shared

federalism regime of the Clean Water Act, rather than vessel safety

and environmental protection under the PWSA) simply does not exist

here. In this matter, as in Ray, the State’s vessel regulations are

precisely coincident with the subject matters and objectives of the

federal requirements.

The Court of Appeals’ primary rationale for its historic decision

hinges substantially on two subsections of a savings provisions in

OPA 90.** Sections 1018(a) and (c) (33 U.S.C. § 2718(a) and (c)), as

employed by the Court of Appeals, defeat express preemptive

24. Section 1018 is lodged in Title I, “Oil Pollution Liability and

Compensation.” As observed by Judge Graber in her dissent from the Court

of Appeals’ denial of en banc reheari.g, (Pet. App. C at 81a-82a), there are

other non-preemptive or savings provisions attached to other titles of OPA.

See, e.g., §§ 4202(c), 5002(n) and 8202(c). In addition to these provisions,

there is in Title VI of OPA (“Miscellaneous”), yet another OPA 90 “savings

provision,” that provides that “this Act does not affect admiralty and maritime

law.” OPA 90 § 6001. (Pet. App. F at 262a-263a.)

22

statements of the Coast Guard and describe a general non-preemptive

atmosphere that was deemed to pervade all elements of OPA 90 and

the PWSA as well. (Pet. App. A at 21a-22a.):

Section 1018 of OPA 90 sheds considerable light upon

the purposes and objectives of Congress in effectuating a

federal scheme of tanker regulation. That provision

demonstrates Congress's willingness to permit state efforts

in the areas of oil-spill prevention, removal, liability, and

compensation.”

(Pet. App. A at 21a-22a.) Section 1018 also was found, because of its

relatively recent enactment, to reflect, “better than the PWSA, the

PTSA or the Tank Vessel Act” the full purposes and objectives of

Congress for conflict preemption analysis purposes. (Pet. App. A at

21a.)

If the Court grants review of the Court of Appeals decision, the

starting point must be the question of whether the Court of Appeals

has grossly over-empowered this facially modest OPA 90 provision.

Intertanko contends that the State regulations are preempted under

express, implied, and conflict preemption principles. The most direct

elements of preemption asserted were numerous express preemptive

utterances by the United States Coast Guard that accompanied the

issuance of regulations mandated by Congress. (Pet. App. H, 269a-

289a.) These preemptive statements address manning, navigational

safety, drug and alcohol testing, bridge resource management, and

vessel safety requirements. The preemptive federalism statements are

variously worded, but none are ambiguous. All of them post-date

OPA 90 and section 1018. An example of this type of statement is the

Coast Guard's 1995 statement on vessel safety requirements:

The authority to regulate safety requirements of U.S.

vessels is committed to the Coast Guard by statute.

Furthermore, since these vessels tend to move from port

to port in the national market place, these safety

requirements need to be national in scope and avoid

numerous, unreasonable and burdensome variances.

23

Therefore, this action would preempt State action

addressing the same matter.

(Pet. App. H at 285a; see also Pet. App. H, 276a-28 1a.)

This Court has recognized that a federal agency, acting through

its rulemaking processes, can effect preemption of state law. Fidelity

Federal Savings & Loan Ass'n v. de la Cuesta, 458 U.S. 141, 153-54

(1982). The Court also has recognized that the act of Congress in

entrusting an agency, in this case the Coast Guard, with the

administration of a complex and comprehensive regulatory regime is

evidence in itself of preemption. San Diego Building Trades Counsel

v. Garmon, 359 U.S. 236, 242 (1959). An agency's view of the

preemptive import of statutes that it administers is valuable to

reviewing courts in determining whether state action is ousted.

Farmers Educational & Cooperative Union of America v. WDAY, Inc.,

360 U.S. 525 (1959).

The Congress not only permits the Coast Guard to act in the

subject matters of the challenged State regulations, it insists on such

action. The Coast Guard has no discretion, at least to the extent it

issues regulations on “design, construction, alteration, repair,

maintenance, operation, equipping, personnel qualification, and

manning of vessels. . . .” (46 U.S.C. § 3703(a)). This Court has advised

that “statutorily authorized regulations of an agency will preempt

any state or local law that conflicts with such regulations or frustrates

the purposes thereof.” City of New York v. FCC, 486 U.S. 57, 64

(1988). If, as Intertanko contends, the Court of Appeals misread OPA

90's section 1018 savings provision to reflect a general intent to subject

all elements (other than design, equipment, and construction) of the

federal marine safety and environmental protection programs to state

action, these preemptive statements by the Coast Guard are entitled

to force and effect and dispense with the need for further preemption

inquiry where State regulations overlap.

The Court of Appeals’ reliance on section 1018 as a broad source

of divestiture of federal powers presents a confusing confluence of

two quite separate federal programs that, prior to this litigation, had

managed to stand apart. The first of these elements is the mandatory

24

and dominant role of the United States national government

in vessel regulation. Within this domain (the boundaries of

which are generally coincident with Title 46), the only

allowances for state activity have been clearly stated and finite.

They are, as has been noted above, certain pilotage activities

(46 U.S.C. § 8501), recreational vessel safety and registration

(46 U.S.C. chs. 122, 125 and 131), and, in another context,

regulation of structures (33 U.S.C. § 1225), a derogation from

federal control that this Court found indicative of an intent

not to permit state activity with regard to the subject matters

at issue in Ray. See Ray, 435 U.S. at 171-174; and supra text

accompanying note 3.

The second federal statutory line, which the Court of

Appeals here allowed to frustrate the first, is in the area of

liability, compensation and penalties for oil spills, areas in

which state action has long been tolerated by express

authorization in federal statutes. Federal statutes have

expressly preserved to the states the authority to address the

economic damages and removal issues that attend the release

of oil from a variety of sources, including vessels, into aquatic

environments. The Clean Water Act (“CWA”) (33 U.S.C.

§$§ 1251-1356) regulates discharges of a number of substances,

including oil, into navigable and non-navigable waters within

the United States. It contained a provision virtually identical

to section 1018 of the Oil Pollution Act. That provision, section

1321(0)(2), stated that

nothing in this section shall be construed as

preempting any state or political subdivision thereof

from imposing any requirement or liability with

respect to the discharge of oil into any waters within

such state.

33 U.S.C, § 1321(0)(2) (amended by OPA 90 adding to the

end of the provision “or with respect to any removal activities

related to such discharge.”). Similar provisions were placed

in the Deepwater Port Act (33 U.S.C. § 1517(k)(1)(1988)), the

25

Outer Continental Shelf Lands Act, (43 U.S.C. § 1820(c) (1988)),

and the TransAlaska Pipeline Authorization Act, (43 U.S.C.

§ 1653(c)(9)(1988)).** Moreover, section 1018's language is closely

tracked by the savings provision of the Comprehensive Environmental

Response, Compensation and Liability Act (CERCLA). 42 U.S.C.

§ 9614(a).

Intertanko argued at both the district court and court of appeals

level that section 1018 had an important, but limited purpose that

could readily be discerned from its language, its history and the

structure of the legislation in which it arose. Section 1018 by its bare

language and history is intended to preserve pre-existing state, local

and federal authority to impose fines, penalties or liability for

discharges and removal of oil. It does not use the word “prevention,”

a term important to the Court of Appeals’ conclusion, but which it

borrowed from Title IV of OPA 90. Similar language existed for many

years prior to OPA 90 in other federal statutes without there ever

having been any recorded awareness of Congress or the federal courts

that the predecessor provisions might permit state regulation of on-

board activity of vessels. (Rec., Brief for Appellant Intertanko at

52-76.)

As noted in the “Statement of the Case” section of this Petition,

the Oil Pollution Act was intended, inter alia, to consolidate the

various provisions affecting liability, compensation, and response.

(See supra pp. 5-6.) The similarity of the language in section 1018 to

earlier provisions is clear evidence of this intent. In all the litigation

and exchange of briefs in this matter to date no party has yet cited

any contemporaneous Congressional indication that the language of

section 1018 or similar provisions was intended to diminish the

traditional exclusive powers of the federal government over on-board

vessel requirements. While acknowledging the limitations of reference

to subsequent Congressional statements when interpreting federal

25. In Askew v. American Waterways Operators, Inc., 411 U.S. 325

(1973), the Court found that federal law (the Water Quality Improvement Act

of 1970) did not foreclose Florida liability provisions that applied to both

facilities within that state and vessels calling at those facilities.

26

statutory meaning, Intertanko has brought to the attention of the courts

below several indications by more recent Congresses that they

continue to consider the federal role in matters affecting vessel

operations and other PWSA Title II subject matters to be controlling.

For example, in 1996, a committee report accompanying the Coast

Guard Authorization Act read as follows:

Authority to make such regulations [requirements

pertaining to vessel structure, design, equipment, and

operation”™] are [sic] vested in the Secretary of

Transportation under sections 3306 and 3307 of title 46,

United States Code. Federal unifo.mity in these matters

is critical to maintain interstate and international

commerce, and because the absence of uniformity hinders

the United States’ ability to seek increased international

vessel standards to better protect the environment.

(Pet. App. G at 268a (citations omitted). )

Although this petition focuses on whai Intertanko perceives to

be the overarching element of error in the Court of Appeals decision

from which all damage to the federal marine safety and environmental

protection standards flows, the Court’s dismissal of the import of

international agreements creates additional grounds for review. The

Court of Appeals simply did not give appropriate weight to the impact

of the challenged State BAP regulations on international agreements

and the role of the United States as a signatory and participant in

their negotiation. Treaties to which the United States has acceded are

of no lesser rank for Supremacy Clause purposes than are other federal

enactments. U.S. Const. Art. VI, cl. 2. States have no power to override

these commitments. Zschernig v. Miller, 389 U.S. 429, 441 (1968).

The Court of Appeals dismissed the concerns of the United States

about the effects of state action on the UNCLOS and the U.S./

Canadian Bilateral Agreement on the grounds that they had not been

raised below. This statement was factually incorrect and, in any event,

does not diminish the national interest in protecting these agreements

against unilateral abrogation by state and local governments. Just as

27

Ray recognized that under the Supremacy Clause a state could not

substitute its judgment that a vessel is safe to navigate U.S. waters

for that of the United States, see Ray, 435 U.S. at 171-174, a state

may not bar for non-compliance with local safety and environmental

protection standards vessels that have in all respects met requirements

agreed upon by the United States and its trading partners. The damage

that such state discretion can have to the credibility of the United

States as a treaty partner is obvious. However, the Court of Appeals

invoked Chevron v. Hammond to conclude that “international

agreements set only minimum standards. ...” (Pet. App. A at 23a

(citing Chevron, 726 F.2d at 493-494).) The Court further stated that

section 1018 buttresses Chevron’s restrictive view of the need for

international uniformity. (Pet. App. A 23a.) At issue in Chevron were

ballast water discharge requirements. The subject matters of the

international agreements relied on by both Intertanko and the United

States as sources of preemption in this case are not the ballast

discharge issues addressed in Chevron. Moreover, the United States

has continued to act in the international arena even after the enactment

of OPA 90 to promote through diplomatic initiatives international

standards intended to increase overall levels of marine safety and

environmental protection. The Court of Appeals’ view that such

agreements constitute only “minimum standards” under Chevron and

its holding that section 1018 permits unilateral state judgments about

whether such agreements apply in particular Ninth Circuit

jurisdictions, severely degrade the ability of the United States and

other maritime nations from reaching future agreement on

international standards.

28

CONCLUSION

Wherefore, petitioner Intertanko respectfully requests that a writ

of certiorari issue to the United States Court of Appeals for the Ninth

Circuit to review its August 31, 1998 order and amended opinion in

this matter.

Respectfully submitted,

C. JONATHAN BENNER

Counsel of Record

SEAN T. CONNAUGHTON

Timi E. NICKERSON

EckEeRT SEAMANS CHERIN

& Mettorr, LLC

Attorneys for Petitioner

1250 24th Street, N.W.

Suite 700

Washington, DC 20037

(202) 659-6600