Respondents Brief — United States v. Locke

Supreme Court brief1999

Ask Donna

What actually matters in this document.

Text

Supreme Court, U.S.

oe Be es

Nt:

UNITED STATES OF AMERICA,

Petitioner,

-and-

THE INTERNATIONAL ASSOCIATION OF INDEPENDENT

TANKER OWNERS (INTERTANKO),

Petitioner,

Vv.

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; WASHINGTON ENVIRONMENTAL COUNCIL;

NATURAL RESOURCES DEFENSE COUNCIL and OCEAN

ADVOCATES,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals for the Ninth Circuit

BRIEF ON THE MERITS FOR

JEFFREY L. NEEDLE

Counsel of Record

JOHN M. MACDONALD

Law OrFices OF JEFFREY L. NEEDLE

Attorneys for Respondent-Intervenors

119 First Avenue South

Suite 200

Seattle, WA 98104

(206) 447-1560

@ Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 «

TABLE OF CONTENTS

Table of Cited Authorities ....................

Summary of Argument .......................

TT GE CE a's in ik sn se

A. The history of tanker regulations designed

to protect the environment. ..............

The Torrey Canyon oil spill. ........

The Water Quality Improvement Act

and Clean Water Act Amendments.

The Exxon Vadez oil spill. ..........

Passage of The Oil Pollution Act of

PO aw Ade hed ova ben bao hone

The Coast Guard’s failure to enact and

enforce regulations required by OPA

explains the necessity of state

fo ae, EEE EO A Re

B. Washington’s Best Achievable Protection

regulations are a legitimate exercise of its

traditional police powers reserved to the

States by the Tenth Amendment. .........

Contents

Federal case law supports the right of

states to enact regulations for the

protection of the marine environment

so long as those regulations do not

conflict with federal law. ...........

1. The BAP regulations do not stand

as an obstacle to the

accomplishment and execution of

the full purposes and objectives of

COMQTOOS. 2c. cicivcevesntesvies

2. The BAP regulations do not conflict

with federal statutes, treaties or

international law. .............-.

The Strait of Juan de Fuca is the internal

waters of the State of Washington — the

State has greater sovereign interest and

authority over internal waters. .......

1. The presumption against

preemption is stronger within

internal WENGER... occ ckdnveeatar

There exits a strong presumption against

preemption. The historic police powers

are not to be superseded absent a clear

expression of Congressional purpose.

Page

Contents

F. The Oil Pollution Act of 1990 authorizes

the states to enact complementary

regulations to prevent oil spills or the

substantial threat of an oil spill. ......

The clear language of Section

PT eMC’ oll Awl dullediciges's.¢ ec

OPA is an environmental statute.

Previous environmental statutes

have created a savings clause

utilizing language which is virtually

the same language as Section

ie wih ian ss de ae

Notwithstanding the clear language

of Section 1018, Congressional

history supports Intervenors’

interpretation of the savings

SE BEA WwiidivebedKs.444% 0-00

G. The express preemption asserted by the

U.S. Coast Guard has exceeded the scope

of its administrative authority. ......

H. The treaties cited by Petitioners are not

preemptive because they are not self-

Ns se Arad b wae ee 4a «

1. International laws designed to prevent

oil spills are not uniform. ...........

Page

Contents

Page

1. The United States Coast Guard does

not practice domestic or

international uniformity or

GOCIBTOGAY. 2c cccccccccsens 44

J. The BAP regulations are not prohibited

by the Foreign Affairs Clause or the

foreign affairs policy of the United

DOGNND, occ vsveveti Vavswdecetudiuns 45

K. International law authorizes the State of

Washington to enact police power

regulations extraterritorially. ........ 47

1. Constitutional law authorizes the

BAP regulations seaward of three

meme. ca cdcvecscenccees 48

Cunstenia i's cn vam accoketessaeret tbe 49

TABLE OF CITED AUTHORITIES

Page

Cases:

American Dredging Co. v. Miller, 510 U.S. 443

GROUPE ddcccccwedsvesr ctu bdbcutesbabucenes 16

Askew v American Waterways Operators, Inc., 411

Shh SU CENOED Swe vcedackeee 4, 5, 17, 18, 19, 32, 40

Ballard Shipping Co. v. Beach Shellfish, 32 F.3d

Se Ge Gee CODE o cocubcdedervesueeenaches 16, 24

Bayside Fish Flour Co. v Gentry, 297 U.S. 422

GE enc ch ceccdcbudcccecnesasenncadeanss 48

Berman Enterprises v. Jorling, 793 F. Supp. 408

Sse. SHOUD a bncicdmndinbsovadscbonst 23, 24

Bureau of Alcohol, Tobacco & Firearms v. FLRA,

Se EOE. PE Leth Ccecouesshisch est 38

Chevron v. Hammond, 726 F .2d 483 (9th Cir. 1984)

cert. denied 471 U.S. 1140 (1985) .. 16, 20, 21, 22, 23

Chevron U.S.A. Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984) ........... 30

Cipollone v. Liggett Group, Inc., 505 U.S. 504

DEE ances nd ohunnchbabaces eet bstebentes 29

Cited Authorities

Page

Douglas v. Seacoast Products, Inc., 431 U.S. 265

CDDTED wcccvctssdvevecksivantuavdussenoatds 13, 15

Exxon Corp. v. Governor of Maryland, 437 U.S. 117

SURED acvons vededhbestentateineVakeewebas 19

FERC v. Mississippi, 516 U.S. 742 (1982) ....... 16

Frolova v Union of Soviet Socialist Republics, 761

* Bile te &, | Fe ar ee 41

Gregory v. Ashcroft, 501 U.S. 452 (1991) ....... 12

Guaranty Trust Co. v United States, 304 U.S. 126

{POE Pot fest ced nae eonitern ne era apie g 40

Hughs v. Oklahoma, 441 U.S. 322 (1979) ........ 14

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

GUNED esccocccadeauecehbasderitaces ow 14, 16, 17

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) ....39, 40

International Paper Company v. Ovellette, 479 U.S.

GEE CURSED ccacicesduwecisetehadhedanedsds 14

In Re Alien Children Ed. Litigation, 501 F. Supp.

SOD GR CONES BUGS ccccnduassdadecsaceni 46

Japan Line, Ltd. v. County of Los Angeles, 441 U.S.

GP GROEED knccdovesbansdewncceasds teeeneks 47

vil

Cited Authorities

Jenkins v. ILN.S., 108 F.3d 195 (9th Cir. 1997) ....

Kelly v. Washington ex rel Foss Co., 302 U.S. 1

GIDOUD-c cpinpucesety cubens boned aie ees bi

Laker Airways v. Sabena Belgian World Airlines,

731 F.2d 909 (D.C. Cir. 1984) ...............

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

SUE 66's 0s 69 eb tanewas wabneitile abebss

Minnesota v. Mille Lacs Band of Chippewa Indians,

Sera T CEE «then dpcdses Bele eke eeesi ees

Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441

Ge ED 550 od ck bei padudocabhdalunes

Natural Resources Defense Council Inc. et al, v.

United States Coast Guard, et al No. 97-3910

(JCL) USDC New Jersey ...............05.,

Natural Resources Defense Council Inc., et all. v.

United States Coast Guard, et al. No. CV-94

4892RJD (E.D. N.Y. 1994) ..............4..

New York v. United States, 505 U.S. 144 (1992) ..

Oil Workers v. Mobil Oil Corp., 426 U.S. 407

GUND sch duveds dvhae vetunvieehews sansa

vill

Cited Authorities

Page

Penn Dairies v. Milk Control Comm'n, 318 U.S. 261

CORED 64 as corsweshoaecbsewacevesetaeasans 29

People of Saipan v United States Department of

Interior, 502 F.2d 90 (9th Cir. 1974), cert. denied,

GSO UG, COGS ESTED bncbvcsSed teres cteck ss 40, 41

Pollard's Lessee v. Hagan, 3 How. 212 (1845) ... 28

Ray v. Atlantic Richfield Company, 435 U.S. 151

(ROU 5c ieatccrewdcuvieeneber 2, 19, 20, 21, 23, 35

Re: Ownership of the Bed of the Strait of Georgia,

Bit @ Fo. | MPrrreTTyiet rT ree 28

Reid v. Covert, 354 U.S. 1 (1957) ........... 13, 39, 40

Rice v. Norman Williams Co., 458 U.S. 654 (1982)

sp paRMS d's SCOM NEAT EENGS 0b SPO NETO e Ras 19

Rice v. Santa Fe Elevator Corp., 331 U.S. 218

CODGEE ho bdsa 000 bas sudeddes VAL baer eesans 6 29

Seldovia Native Ass'n, Inc., v. Jujan, 904 F.2d 1335

CEE TOOEE 6 0 nconcnddd chawesesdvcatones 39

Siderman de Blake v. Republic of Argentina, 965

F.2d 699 (9th Cir. 1992) .......... cece ee eees 39

Silz v Hesterberg, 211 U.S. 31 (1908) ........... 46

Cited Authorities

Page

_ Skiriotes v Florida, 313 U.S. 69 (1941) ......... 48

South Carolina v. Baker, 485 U.S. 505 (1992) .... 13

Southern Pacific Co. v. Jensen, 244 U.S. 205

i vs karen u a cwnh «bho san ets th'ed (cheb bki 14

State of Alaska v. Babbitt, 54 F.3d 549 (9th Cir.

SE GeEKGS SenhGa uss SASUn Eds bebnC bbe 38

The Chlorine Institute, Inc. v. California Highway

Patrol, 29 F.3d 495 (9th Cir. 1994) ........... 16, 34

Trojan Technologies, Inc. v. Commonwealth of

Pennsylvania, 916 F.2d 903 (3rd Cir. 1990)

PAde et deRhss bbe ed EES US eb ab ee res eeeeedes 46

Trustees of California State University v. Riley, 74

Foe DOO CO Cir, 1996) 2 oon scccsievecsceces 38

United States v. Alaska, 521 U.S. 1, 117 S. Ct. 1888

TEL itkabehakbnn scV hace cpeetaseeebukaes 27, 28

United States v. California, 381 U.S. 139 (1965)... 27

United States v. Lopez, 514 U.S. 549 (1995) ..... 12

United States v. Louisiana, 470 U.S. 89 (1985) ... 28

United States v. Pink, 315 U.S. 203 (1942) ....... 47

Cited Authorities

Page

U.S. v. Verdugo-Urquidez, 939 F.2d 1341 (9 Cir.

IGG. cece vadeh spacdeccaenteauactutesqeks | 40

Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S.

pre ery errr ys Pe sy 14

Zschernig v. Miller, 389 U.S. 429 (1968) ........ 46

Statutes:

33 U.S.C... 6 2IGE GUOOR, 0 oi oc cc ccedaccvasenscs 5

igs ome ot + wre reper ere y 5

33 UBC. © SBE OE OR. 0 avin ceivecccenesias 34

cis Pome Dy eS rere rer er rrr. 44

Rik Som BF Peery reer tier te 6

USK EMM CREE 6

pe Ris Fae | eer re rrr vehevteyubuns 42

33 WBC. BE BBREIGES «oon ccc ccsecassicses 42

GRUB. SPORTS) oo vd ice bcc ccckicceeces 35

SD UB. BUSSE OE GOR. ic cesar cunpascscccsnn 6

Cited Authorities

Page

SOULE DOD & icici evs itinadiew DAs, 23

CO Se G BOOe COON oie kc eacdccscccadeces 42

SNe STUD WEA ces wis Ronan coe SamaeeEs 9, 44

SO UBL. § SIONAS) 2. cccccscvcvaccveiee at

TAA URE fbi ck bicas bo 0. sabes Oekeare 45

Se Re eee hese e cccboaeweaweaeh beets 34

SP UR db VN Clas Hopes geaeeiks deen ee 35

SR DOR och dnoh choad been Pon cewen Lee can 33

Se ee Ua' ous vaes y Kekcadetarerans 33

ue OP PUNE Sk nice ea tenchavie codecs Ve 17, 33

OPA § 1018 ....... Se aibnd Merwe ube shes Ub he's ae passim

Ss PE BUNCH LAA Coline oo 84 SUAS RONG DORON 9

PME EMS USUs Cex sweRha dh cnidbeChadeubs 10

CBOE Gas Sha rh a ee 11

xii

Cited Authorities

Page

United States Constitution:

Ra Wee eo wien kK yp ous wb abaw have ces was bks -

Teme AMMEN no sce ccreccteneusas 1, 12, 13, 40

Other Authorities:

SE CIA: 6 EGG FEE vc cc cha sicky ceveccss 33

Coney, M., The Stormy Seas of Oil Pollution

Liability: Will Protection and Indemnity Clubs

Survive?, 16 Houston J. of Int’] L. 343 (1993)

RE ET reper ye ea ee een ye ee 45, 46

Mick Drago, Associated Press, March 19, 1996... 11

Brennan, State Constitutions and the Protection of

Individual Rights, 90 Harv. L. Rev. 489 (1977)

oe knkinuns d pel OC pbe eked pub ders ane aeehs Os 13

Ellis, E., Jnternational Law and Oily Waters: A

Critical Analysis, 6 Colo. J. Int’l. Envt’] L. &

Paty BE CHE a cbnyck he dvcndduantdveceses 3

Eubank, S., Patchwork Justice: State Unlimited

Liability Laws in the Wake of the Oil Pollution

Act of 1990, 18 MD. J. Int'l] L. & Trade 149

CRG a ning 8's Cbs cn kd eka Vd G cece beneeeneees 46

xili

Cited Authorities

M’Gonigle, R. and Zacher, M., Pollution, Politics

and International Law: Tankers at Sea, University

of California Press (1979) ..................

Dennis Hevesi, The New York Times, February 12,

EO MED ed Ah ae ee Ah ek bas Koy Oak Oe

Mitchell, R., Jntentional Oil Pollution of the Oceans;

ee PUN PRO ack ea eu adaalcn cb uee s.e'2

Picou and Gill, The Exxon Valdez Oil Spill and

Chronic Psychological Stress, American Fisheries

Society Symposium 18:879-893 ..............

Utter, Perspectives on State Constitutions and the

Washington Declaration of Rights, 7 Pug. Sound.

Rie PE GHEE es CK a Khe ek We Ronee sas

Exxon Valdez Trustee Council, Exxon Valdez Oil

Spill Restoration Plan: Update on Injured

Resources and Services, January 1999 ........

Wilkinson, C., et al., Slick Work: An Analysis of the

Oil Pollution Act of 1990, 12 J. Energy, Nat.

Resources & Envt’! L. 181 (1992) ............

Wyatt, M., Navigating the limits of State Spill

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

ee 6.5854 CIGUE kk si erikeK,

Page

3,4

xiv

Cited Authorities

Page

Yergin, D., The Prize: The Epic Quest for Oil, Money

and Power, Simon & Schuster (1992) ......... 3

Zacher, M., Pollution, Politics and International

Law: Tankers at Sea, University of California

PURO STNTEE ck ho oesndbviaweedeees hans tan 4

Flag State Implementation, [MO Maritime Safety

Committee, MSC 66/12/1 (January 29,1996) .... 43

Exec. Ord. No. 12777, Section(d)(2) ............ 9

H.R. Conf. Rep. No. 653, 101* Cong., 2™ Sess. At

122 (1990), reprinted in 1990 U.S.C.C.A.N. 800

+ bs whee dts heehee (bade eUESKUO bode Taree 10, 36

Pub. L No. 105-383, 112 stat. 3411 (1993) ....... = 11

S. Rep. No. 94, 101st Cong., 2nd Sess. 2 (1989)

reprinted in 1990 U.S.C.C.A.N. 722 .......... 8

Sen. Rept. No. 101-94, 2, July 28, 1989 .........

Pe on re Ry yey ce ener ee 9, 26, 33, 34, 36

9 U.S.T. 621, T.LA.S. No. 4044. ...........05.. 3

22 UGS.T. Sos BOE EGS Cnt lec denedé ress 4

ES SRG e CD bce endanes tree Geses Raabe pees 27

Cited Authorities

Page

56 FR 54870, October 22, 1993 ................ 10

PP NEOD n 06 bob Raiwseeukwdencuce 28

NE, iid ces Gulaile bo.0'4 is due be Forays 10

See OIE 6 ou oe chvicvs bases btin seek 10

ve ote cag LE EP OTe OT A LE SRS Ey a 10

PE EEO ide se waiws ebb sea bases’ 42

62 FR 13285 (March 26, 1996) ................ 45

Treatises:

De La Rue, C. and Anderson, C., Shipping and the

Environment: Law and Practice, Lloyd’s of

London Press 10-11 (1998) .......... 4, 5, 6, 34, 45

L. Tribe, American Constitutional Law, § 6-28 (2d

A VPRO CS ilk doe ed euu ua ae weeee ne. 23

Safer Ships, Cleaner Seas; Report of Lord

Donaldson's Inquiry into the Prevention of

Pollution from Merchant Shipping (Donaldson

8, geste URBIE REELS <i patom edge cers ait ae aD 41, 43

Restatement (Thi -d) of Foreign Relations Law of the

United States (Restatement), § 111 (1987) ..... 41

xvi

Cited Authorities

Page

Restatement (Third) of Foreign Relations Law of the

United States (Restatement), § 325, comment.

(B) . .cccccvnccess eon euneenwe ee ne 39

Restatement (Third) of Foreign Relations Law of the

United States (Restatement), § 325, Reporters’

Note (4) ...ciccsccsevettnneeunaeneneuuans 43

SUMMARY OF ARGUMENT

The internal waters of Washington State are among the most

productive and fragile natural resources in the world. These

waters are continually threatened by the increasing number of

foreign oil tankers in Puget Sound and the possibility of a

catastrophic oil spill. Washington's Best Achievable Protection

regulations (BAP regulations) are a direct result of that threat

and the failure of the United States Coast Guard to enact and

enforce regulations to protect against an oil spill as required by

federal law.

The BAP regulations are a valid exercise of the state’s police

powers for the purpose of protecting its marine environment

from the catastrophic effects of an oil spill. The right of

Washington to enact oil spill regulations concurrent and

complementary with the federal government is critical to a

balance of federalism necessary to allow individual states the

autonomy envisioned by the Tenth Amendment.

Neither the Constitution nor prudent public policy requires

that Washington State rely upon overextended and under

budgeted federal officials for the protection of one of the most

environmentally productive and sensitive ecological systems

in the world. So long as Washington's BAP regulations are not

in actual conflict with international treaties or Coast Guard

regulations, the exercise of the state’s police powers for the

preservation of its environment may not be usurped.

Many jurisdictions have no regulations concerning

protection against o.' spills. As to those jurisdictions, federal

regulations and/or iniernational treaties continue to control. Just

as the federal constitution exists as a floor beneath which the

quality of individual rights may not fall, federal regulations and

treaties exist as a floor beneath which environmental protection

may not fall. Individual states, however, may provide for greater

protection.

The Government asserts that Washington’s BAP regulations

impair or undermine the Government's ability to enter into

international treaties. The Government, however, does not have

the right to bargain away by treaty the state’s traditional police

powers to preserve the health and safety of its citizens. This is

exactly what the Government is attempting to do.

In an attempt to expand the Government's power and

authority, Petitioners assert that the BAP regulations are

maritime in nature. They are not. T®= Oil Pollution Act (OPA)

and the Washington BAP regu'ati ons are environmental

regulations, and not maritime. The BAP regulations are

expressly authorized by the savings clause of OPA (Section

1018) which is modeled after the Clean Water Act and not by

Title 46 of the U.S. Code or the Ports Waterways and Safety

Act. Section 1018 of OPA is an explicit recognition that oil

spill prevention is most reliably achieved by authorizing

individual states to enact their own prevention regulations so

long as they do not actually conflict with federal law.

The genius of federalism within the environmental context

allows the states to be laboratories of experimentation in which

various policies are debated, implemented and then refined.

Innovative and better ways of protecting the public health, safety

and environment will be the result of allowing states to enact

their own oil spill prevention regulations.

There is no actual dispute alleged involving any tank vessel

and any state regulation. There exists no evidence in this record

that any vessel entering the internal waters of Washington was

prevented from doing so, hindered in doing so, or subjected to

enforcement because of a conflict between state and federal

regulations. This court should not entertain hypothetical claims

involving preemption.

No actual conflict exists between the BAP regulations and

federal statutes or international treaties. The Washington BAP

environmental protection measures.” These are exactly the type

of regulations acknowledged in Ray v. Atlantic Richfield, 435

U.S. 151 (1978). The international uniformity so highly valued

by the Petitioners is a myth. Moreover, the international treaties

are not self-executing, and therefore have no preemptive effect.

ARGUMENT OF COUNSEL

A. The history of tanker regulations designed to protect

the environment.

The history of the oil tanker is marked with a series of

landmark events, the first of which was the expansion of the

Russian oil market in the late 1880s. The first successful

bulk tanker, the Zoroaster, set sail in 1878 on the Caspian

Sea. Yergin, D., The Prize: The Epic Quest for Oil, Money

and Power, Simon & Schuster, 59 (1992).

After World War II, there was a substantial increase in

the number and size of oil tankers transiting the high seas.

Ellis, E., International Law and Oily Waters: A Critical

Analysis, 6 Colo. J. Int'l. Envt’l L. & Pol’y 31, 36 (1995). In

response to the unprecedented growth of international trade,

the United Nations established the 1958 Convention on the

Intergovernmental Maritime Consultive Organization (IMO).

9 U.S.T. 621, T.LA.S. No. 4044. The Convention introduced

the first international body designed to address global

shipping concerns.'

Prior to 1969, there were no international agreements

which addressed the environmental consequences of an oil

spill. Ellis, supra at 34-35.’ Tankers were primarily governed

1. Protection of the environment under the Convention was

merely a contingent benefit to vessel safety. M’Gonigle, supra, at

41. The objective of IMO was, inter alia, “(t}o provide machinery

for cooperation among Governments in the field of governmental

regulation and practices relating to technical matters of all kinds

affecting shipping engaged in international trade, and to encourage

the general adoption of the highest practicable standards in matters

concerning inaritime safety and efficiency of navigation.” IMO

Convention, Art. I. IMO served the interests of commerce and the

shipping industry; the Convention was silent on pollution control.

M’Gonigle, at 41.

2. Intentional discharges of oily ballast water was a common

tanker practice throughout the first half of the 20th Century. It was

(Cont'd)

by an assortment of non-uniform regulations, the majority of

which were self imposed by the industry. M’Gonigle, R. and

Zacher, M., Pollution, Politics and International Law: Tankers

at Sea, University of California Press, 39 (1979).

1. The Torrey Canyon oil spill.

The emergence of the “supertanker” in the 1960s proved

to be the defining factor spurring international action to address

the threat of oil pollution. By the late 1960's, supertankers of

200,000 dwt were in operation and by the early 1970s tankers

of over 400,000 dwt were in operation. De La Rue, C. and

Anderson, C., Shipping and the Environment: Law and Practice,

Lioyd’s of London Press 10-11 (1998). On March 18, 1967,

the supertanker Torrey Canyon struck rock off the coast of

Cornwall, England carrying a cargo of 120,000 tons of crude

oil. Jd. Within days she broke into three separate pieces creating

a scale of pollution without precedent; the spill fouled beaches

over a hundred miles throughout the British and French regions

of Cornwall, Normandy and Brittany. M’Gongile, at 144. As a

result of the Torrey Canyon oil spill, the United States rejected

efforts by the maritime industry to await the development of

international standards, and acted independently of international

efforts. The rejection of international efforts was in large part

based upon consideration of the rights of individual states to

enact regulations for the protection of their local environment.‘

Cont'd

oa ati 1954 that these deliberate discharges became subject to

international regulations. International Convention for the Prevention

of Pollution of the Sea by Oil (OILPOL), 12 U.S.T. 2989, 327

U.N.T.S. 3. OILPOL was significantly limited in scope and intent;

OILPOL did not prohibit intentional oil discharges but generally

required that they be made outside of 50 miles from coastal zones.

Id., Art. Ul.

3. See also Askew v American Waterways Operators, Inc., 411

U.S. 325, 333-335 fn 5 (1973) (describing the Torrey Canyon oil

spill and the growth of oil tankers).

4. “Although efforts were made by the maritime industry to

postpone [Congressional] hearings on new domestic legislation

(Cont'd)

2. The Water Quality Improvement Act and Clean

Water Act Amendments.

In the wake of the Torrey Canyon, Congress enacted the

1970 Water Quality Improvement Act (WQIA), 33 U.S.C.

§ 1161 et seq. WQIA generally created a national policy

prohibiting the discharge of oil into U.S. waters and imposed

strict liability for all clean-up costs incurred by the federal

government. The Act also imposed limitation on the vessel

owner’s liability and required larger tankers to display evidence

of financial responsibility up to statutory limits. Section 1161.

The WQIA introduced the early blueprint of OPA’s savings

clause: “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.” WQIA § 1161(0)(2). This savings

clause is virtually indistinguishable from OPA § 1018(a).

Although incidentally applying to maritime matters, WQIA

§ 1161(0)(2) was held to be outside the scope of the federal

presence in general maritime law. See Askew v. American

Waterways Operators, Inc., 411 U.S. 325, 341 (1973).

Unfortunately, it soon became clear that the WQIA was

not accomplishing its objective of lowering the level of pollution

in U.S. waters. De La Rue, at 23. Congress responded in 1972

(Cont'd)

pending the adoption of an international convention, the US State

Department refused to support any request for postponement.

Secondly, given the strong economic position of the US, it was widely

felt that the country could act independently of other nations in

formulating its oil spill policy. A third factor, destined to plague all

future efforts to achieve an international solution to the problem of

marine oil pollution, was the reluctance to accept an international

regime that might prevent individual states from establishing their

own liability and compensation laws for discharges of oil within

their jurisdiction. This reluctance, emanating from the states’ need

fo maintain autonomy within the federal system, was founded on a

strong belief that individual states were in the best position to

determine the most effective way to protect their citizens in

environmental matters.” De La Rue, at 22 (emphasis added).

by amending the Federal Water Pollution Control Act, or Clean

Water Act (CWA). 33 U.S.C. § 1251 et seg. The CWA also

contains a savings clause upon which OPA § 1018(a) was

modeled: “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 or hazardous substance into any waters within

such State.” CWA § 311(0)(2).

3. The Exxon Vadez oil spill.

During the mid- 1970s, Congress began to consider various

bills to revamp the national system of oil spill liability regimes

within the WQIA, the CWA, the Deep Water Port Act, 33 U.S.C.

§ 1501 et seqg., and the Outer Continental Shelf Lands Act,

43 U.S.C. § 1331 et. seq.

On March 24, 1989, the Exxon Valdez ran aground in Price

William Sound carrying more than 53 million gallons of Alaskan

crude oil. The grounding resulted in the release of over eleven

million gallons of oil, the worst oil spill disaster the United

States has ever experienced. De La Rue, at 55. Exxon Valdez

galvanized global public attention on an unprecedented scale.

Approximately 190 lawsuits were filed in the District Court of

Alaska, 212 were filed within Alaska state courts and the federal

government brought federal criminal charges against Exxon.

Id.

Following the spill in Alaska, oil spread over parts of 1,300

miles of coastline in Prince William Sound, the Kenai and Alaska

Peninsulas, and the Kodiac Archipelago. Some 2,800 sea otters

died; those that managed to survive could be seen swimming

through the water covered in oil. An estimated 300 harbor seals

were killed by the oil, and seal population levels fell by as much

as 30 percent in areas tainted by the spill. Harlequin ducks did

not reproduce in Prince William Sound for over three years

following the spill. Salmon, herring, and shellfish were tainted

by the oil, leading to oil contamination of animals which prey

on them. Many marine animals were genetically damaged.

Roughly a quarter of a million sea birds died. The bodies of

250 bald eagles, 395 loons and 838 cormorants were discovered.

Numerous killer whales disappeared from Prince William Sound

and many of those are presumed dead; one group or “pod” lost

almost half of its members (14 of 36). These statistics represent

only the losses that have been confirmed by scientists and clean-

up crews. Exxon Valdez Trustee Council, Exxon Valdez Oil Spill

Restoration Plan: Update on Injured Resources and Services,

January 1999.°

It was not only a broad spectrum of wildlife that was

damaged by the Exxon Valdez disaster. People were adversely

affected, as well. Professional fishermen suffered distressing

economic losses as fisheries were closed in 1989. While most

fisheries opened again in 1990, the Prince William Sound herring

fishery was forced to close again in 1993 due to an injured

herring population, and remains closed today. The tourist

industry in the spill area has suffered ongoing losses. The loss

of wildlife has limited the recreational appeal of the spill area,

and oil still covers parts of beaches once enjoyed by tourists.

Restrictions on sport fishing and hunting to protect injured fish,

animal and bird populations similarly harm tourism. /d.°

On February 10, 1999, the Alaska Wilderness League

released a new report declaring Prince William Sound’s wildlife

5. There are eight species that continue to be listed as not

recovering 10 years after the spill: common loons, cormorants

(pelagic, double-crested and red-faced), harbor seals, harlequin

ducks, killer whales and pigeon guillemots.

6. “The Trustee Council determined that the ‘human services’

of commercial fishing, subsistence, recreation/tourism, and passive

use will have recovered when the injured resources on which they

depend are once again healthy and productive. Since that level of

recovery has not been achieved, each of these services is considered

to be recovering.” See also Picou and Gill, The Exxon Valdez Oil

Spill and Chronic Psychological Stress, American Fisheries Society

Symposium 18:879-893 (1996) (“Chronic stress was documented for

communities affected by the spill and for members of occupational

groups most dependent on commercial fishing”). See Trustee Council

10 Year Report at http:// www.oilspill.state.ak.us/injury/

notrecov. htm.

and ecosystem unrecovered. As the report points out, “the Office

of Technology Assessment [has] estimated that cleanup has

recovered 3 to 4 percent of the spill. Substantial contamination

and depressed population . . . of wildlife persists.” The Seattle

Times reported on October 5, 1998: “Lingering oil from the

1989 grounding of the Exxon Valdez supertanker in Prince

William Sov i will kili or stunt Alaskan pink salmon for

generations &) come, government scientists say. Long lasting

hydrocarbon components of the crude oil will cause chronic

harm to successive generations.” Jd.

4. Passage of The Oil Pollution Act of 1990.

As a direct consequence of the Exxon Valdez oil spill,

Congress passed the Oil Pollution Act of 1990. Congress

recognized that the preexisting legislation was inadequate to

prevent catastrophic oil spills. The prevention of oil spills is

now accomplished through a comprehensive integration of

liability, compensation and vessel standards. OPA serves to

remove the patchwork of oil spill prevention measures by

placing them into a comprehensive, environmentally oriented

statute.’

OPA is an environmental statute which explicitly recognizes

that regulation by individual states is the best and historic source

for innovative environmental protection. This explicit

recognition is contained in the savings clause of Section 1018,

which authorizes the states the right to enact oil spill regulations

for the protection of their local environments.

5. The Coast Guard’s failure to enact and enforce

regulations required by OPA explains the necessity

of state regulation.

Intertanko argues that the State and their supporters may

disagree with the sufficiency of the regulatory scheme, but that

7. “[A)}ny oil spill, no matter how quickly we respond to it or how

well we contain it, is going to harm the environment. Consequently,

preventing oil spills is more important than containing and cleaning

them up quickly.” S. Rep. No. 94, 101st Cong., 2nd Sess. 2 (1989)

reprinted in 1990 U.S.C.C.A.N. 722, 723 (emphasis added).

disagreement is not of constitutional import. Intertanko Brief

at 29 fn 18. Intertanko is correct on both issues. Although the

insufficiency, lack of implementation and poor enforcement by

the Coast Guard is not of constitutional import, the Coast

Guard's failure to comply with the requirements of OPA for the

enactment and implementation oil spill prevention regulations

explains the perceived necessity by the states to enact oil spill

prevention regulations of their own.*

OPA is intended to “address the many shortcomings of the

existing patchwork of laws on oil spills.” Sen. Rept. No. 101-

94, 2, July 28, 1989. The act charged the United States Coast

Guard with the rulemaking authority to implement most of the

measures mandated by Congress within OPA. Exec. Ord. No.

12777, Section(d)(2). Over the last nine years, however, the

Coast Guard has failed to adequately promulgate regulations

for oil spill prevention and response as required by OPA.

A principal goal of OPA is to compel a process by which

working oil tankers will function with double hulls. 46 U.S.C.

§ 3703(a). The process of using only double-hulled tankers

cannot be implemented immediately, however, and Congress

allowed for a phase-out period for single-hulled tankers of 25

years, until 2015. See OPA § 4115.’

8. On August 7, 1997, a number of environmental organizations

(including the Natural Resources Defense Council, Ocean Advocates,

American Littoral Society, Baykeeper, Clean Ocean Action, New Jersey

Public Interest Research Group Citizen Lobby, Inc and Public Interest

Research Group of New Jersey, Inc.) filed suit against the Coast Guard

for its failure to promulgate interim structural measures for existing

ships, as well as its refusal to require tank level pressure monitoring

devises in contravention of OPA. The merits of the case were not reached,

as it was dismissed on jurisdictional grounds. Natural Resources Defense

Council Inc. et al, v. United States Coast Guard, et al No. 97-3910

(JCL) USDC New Jersey. See also Natural Resources Defense Council

Inc., et al. v. United States Coast Guard, et al. No. CV-94 4892RJD

(E.D. N.Y. 1994).

9. The double hull tankers mandated by Congress are

inconsistent with MARPOL. Congress was willing to sacrifice

(Cont'd)

Recognizing that until the phase-out period is complete

there will be grave dangers posed by still-operating single-hulled

oil tankers, Congress included in OPA a mandate for the Coast

Guard to reduce that threat by promulgating a series of interim

measures to prevent oil spills, and to create effective response

measures in the event of a spill. Under section 4115(b) of OPA,

the Coast Guard is required to promulgate structural and

operational measures for single-hulled tank vessels carrying over

5,000 gross tons of oil that will provide as substantial protection

to the environment as is economically and technologically

feasible. Recognizing the immediacy of the threat, Congress

required these measures to be promulgated by August, 1991.

Id. “The goal of this provision [requiring structural and

operational measures] is to ensure that the environment is

protected as quickly as possible from oil spills.” H.R. Conf.

Rep. No. 653, 101" Cong., 2d Sess. (Aug. 1, 1990).

In 1993, two years after the deadline for issuing structural

and operational measures had passed, the Coast Guard drafted

a Notice of Proposed Rule Making entitled “Structural and

Operational Measures to Reduce Oil Spills from Existing Tank

Vessels Without Double-Hulls.” 56 FR 54870, October 22, 1993.

In 1995, the Coast Guard then withdrew its 1993 proposal. 60

FR 67226, December 28, 1995. In 1996, approximately five

years after the Congressional mandate, the Coast Guard finally

issued rules for operational measures. 61 FR 39770 (1996).

Unfortunately, the rules were minimal and only addressed issues

such as lightering equipment, enhanced survey programs, and

maneuvering performance capability tests. 61 FR 39788-91.

These operational measures are minor, of limited importance,

and largely mirror prevailing industry practice. They do not

remotely comply with the Section 41 15(b) requirement that the

Coast Guard must provide the greatest feasible protection

(Cont'd)

international uniformity in the name of greater protection from oil

spills. The Ninth Circuit relied upon this Congressional intention.

148 F.3d at 1063.

against pollution from oil spills by tank vessels. No structural

interim measures were enacted at all, thereby making the

operational measures all the more important.

Perhaps the most significant failure within the context of

this case is the Coast Guard’s failure to provide for tug escort

vessels for 70 miles in the Strait of Juan de Fuca west of Port

Angeles. Section 4116 of OPA provides authority to require a

minimum of two escort vessels for laden single hull oil tankers

of 5,000 GT operating in Prince William Sound and Puget

Sound. Despite the fact that Puget Sound is particularly

identified in the statute as in need of tug escorts, the Coast Guard

has failed to require tug escorts west of Port Angeles.

The Coast Guard has also failed to implement key spill

response measures, including salvage and firefighting

requirements; on-water response capacities; and on board

containment and removal equipment. The Coast Guard Re-

Authorization Act of 1993 specifically instructed the Coast

Guard to test and evaluate technology that could be carried safely

aboard tankers. Pub. L No. 105-383, 112 Stat. 3411 (1993).

It also required that a report be sent back to Congress within a

maximum of two years on the feasibility and environmental

benefits relating to tanker oil spill response equipment. /d.

Six years later that report has still not been provided.

Since the passage of OPA, almost a decade ago, oil tankers

have continued to operate without the safeguards required by

Congress. Many oil spills are reported every year. Although

these incidents are not always widely publicized, they

nonetheless harm the environment and quality of life of

American citizens.'°

10. E.g., In March 1996, a barge in the Housting Ship Channel

almost split in two, spilling 714,000 gallons of oil into Galveston

Bay. Mick Drago, Associated Press, March 19, 1996. In January

1996, off the coast of Rhode Island, the North Cape barge had to be

abandoned after the tug towing it caught fire; 820,000 gallons of #2

fuel were spilled into the water. Dennis Hevesi, The New York Times,

February 12, 1995. In January 1994, a barge ran aground in Puerto

(Cont'd)

B. Washington’s Best Achievable Protection regulations

are a legitimate exercise of its traditional police

powers reserved to the states by the Tenth

Amendment.

Washington’s BAP regulations are a valid exercise of

its police powers for the purpose of protecting its marine

environment from the catastrophic effects of an oil spill. The

right of Washington to enact oil spill regulations concurrent

and complementary with the federal government is critical

to a balance of federalism necessary to allow individual states

the autonomy envisioned by the Tenth Amendment."

Neither the Constitution nor prudent public policy requires

that Washington State rely upon overextended and under

(Cont'd)

Rican waters after its towing cable broke; 750,000 gallons of oil spilled

into the ocean off a popular beach area. Press Release by Guillermo

Gill, U.S. Attorney, April 25, 1996; In August 1993, three ships collided

in the main channel leading into the Port of Tampa Bay, spilling 328,000

gallons of oil into the water; an even larger amount of oil caught on

fire, seriously polluting the air in this highly populated area. “Collisions

and Oil Spill in Tampa Bay,” (based on newspaper articles and the

account in Golob's Oil Pollution Bulletin). In addition, many incidents

that do not result in actual spill are not publicized.

11. The decentralization of power associated with the

traditional sovereignty of states implicates the most basic concepts

of a free and democratic society.

Just as the separation and independence of the

coordinate branches of the Federal Government serve

to prevent the accumulation of excessive power in any

one branch, a healthy balance of power between the

States and the Federal Government will reduce the risk

of tyranny and abuse from either front. . . . In the tension

between federal and state power ties the promise of

liberty.

Gregory v. Ashcroft, 501 U.S. 452, 458-459 (1991). See also United

States v. Lopez, 514 U.S. 549, 576 (1995) (Kennedy concurring)

(“State sovereignty is not just an end in itself: ‘Rather, federalism

secures to citizens the liberties that derive from the diffusion of

sovereign power’ ").

budgeted federal officials for the protection of one of the most

environmentally sensitive ecological systems in the world.

Fundamental concepts of federalism require that Washington

State be able to protect and regulate the quality of its own

environment. So long as Washington's BAP regulations are not

in conflict with international treaties or Coast Guard regulations,

the exercise of the State’s police powers for the preservation of

its environment can not be usurped.

Many jurisdictions have no regulations concerning

protection against oil spills. As to those jurisdictions, federal

regulations and/or international treaties continue to control; the

BAP regulations do not usurp the authority of the Coast Guard

in State waters, rather they reasonably complement the federal

requirements. Much like the federal constitution itself, federal

regulations and treaties exist as a floor beneath which

environmental protection may not fall. As with state

constitutional rights, however, individual states may provide

for greater protection. See Utter, Perspectives on State

Constitutions and the Washington Declaration of Rights, 7 Pug.

Sound. L. Rev. 491, 495 (1984); Brennan, State Constitutions

and the Protection of Individual Rights, 90 Harv. L. Rev. 489,

501-502 (1977).

The Tenth Amendment confirms “that the power of the

Federal Government is subject to limits that may, in a given

instance, reserve power to the States.” New York v. United States,

505 U.S. 144, 157 (1992). The Tenth Amendment encompasses

“any implied constitutional limitation on Congress’ authority

to regulate state activities, whether grounded in the Tenth

Amendment itself or in principles of federalism derived

generally from the Constitution.” South Carolina v. Baker, 485

U.S. 505, 511 fn. 4 (1992). Under modern analysis, the question

is whether the State has exercised its police power in conformity

with federal laws and the Constitution. Douglas v. Seacoast

Products, Inc., 431 U.S. 265, 342-43 (1977); Reid v. Covert,

354 U.S. 1, 15-18 (1957) (“The prohibitions of the

Constitution were designed to apply to all branches of the

National Government, and they cannot be nullified by the

Executive or by the Executive and the Senat. ombined”).

Federal maritime law has long accommodated the States’ interest

in regulating environmental protection, although the regulation

may have an incidental effect on maritime affairs.'?

Whether or not the enactment of state regulations may

hypothetically result in some “Balkanization” is entirely besides

the point.'> What the Petitioners decry as the evil of

12. See Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199,

215 fn.3 (1996) (“States have thus traditionally contributed to the

provision of environmental and safety standards for maritime

activities”); Southern Pacific Co. v. Jensen, 244 U.S. 205, 216 (1917)

(“[I}t would be difficult, if not impossible, to define with exactness just

how far the general maritime law may be changed, modified, or affected

by state legislation. That this may be done to some extent cannot be

denied”); Huron Portland Cement Co. v Detroit, 362 U.S. 440, 442

(1960) (“In the exercise of [police powers], the states . . . may act, in

many areas of . . . maritime activities”); Minnesota v. Mille Lacs Band

of Chippewa Indians, 97-1337 (1999) (“Although States have important

interests in regulating wildlife and natural resources within their borders,

this authority is shared with the Federal Government when the Federal

Government exercises one of its enumerated constitutional powers, such

as treaty making”) (emphasis added); /nternational Paper Company v.

Ouellette, 479 U.S. 481, 502 (1987) (Brennan concurring and dissenting)

(“This traditional interest of the affected State, involving the health

and safety of its citizens, is protected by providing for application of

the affected State’s own tort laws in suits against the source State's

polluters”); Kelly v. Washington ex rel Foss Co., 302 U.S. 1, 10 (1937)

(“The principle is thoroughly established that the exercise by the state

of its police power, which would be valid if not superseded by federal

action, is superseded only where the repugnance or conflict is so ‘direct

and positive’ that the two acts cannot ‘be reconciled or consistently

stand together’ "); Oil Workers v. Mobil Oil Corp., 426 U.S. 407, 435-

36 (1976) (Stewart, dissenting) (“The Court has never struck down a

state law on the ground that the States are jurisdictionally incompetent

to legislate over matters that occur within the ocean ‘territory.’ ").

13. See Hughs v. Oklahoma, 441 U.S. 322, 342 (1979)

(Rehnquist dissenting) (“Unless the regulation directly conflicts with

a federal statute or treaty, ... allocates access in a manner that

(Cont'd)

Balkinization, the environmental community proclaims as the

genius of federalism. The genius of federalism within the

environmental context allows the states to be laboratories of

experimentation in which various policies are debated,

implemented and then refined. Innovative and better ways of

protecting the public health, safety and environment will be the

result of allowing states to enact their own oil spill prevention

regulations.

Within our federal system, states are intended to

be laboratories of experimentation in which

various policies are debated, implemented and

refined. The modern environmental movement

started in the states. The federal government has

followed the lead of the states, evaluating different

State programs and borrowing the best ideas in

order to form a comprehensive federal law. It is

incongruous that in adopting the ideas that states

have already developed, federal law should

prevent further innovation by prohibiting states

from expanding their environmental programs, be

they regulation of hazardous materials

transportation or other initiatives. By preempting

State authority in this case, we effectively

eliminate the ability of states to develop new and

(Cont'd)

violates the Fourteenth Amendment, ... or represents a naked

attempt to discriminate against out-of-state enterprises in favor of

in-state businesses unrelated to any purpose of conservation, .. .

the State's special interest in preserving its wildlife should prevail.

And this is true no matter how ‘Balkanized’ the resulting pattern of

commercial activity”) (Citations omitted); Douglas v. Seacoast

Products, Inc., 431 U.S. 265, 288 (1977) (Rehnquist dissenting)

(“Barring constitutional infirmities, only a direct conflict with the

operation of federal law — such as exists here — will bar the state

regulatory action. ... This is true no matter how ‘peripatetic’ the

objects of the regulation or however ‘Balkanized’ the resulting

pattern of commercial activity”).

better ways of protecting the public health, safety

programs from percolating up to the federal level.

The Chlorine Institute, Inc. v. California Highway Patrol,

29 F.3d 495, 499 (9th Cir. 1994). See also FERC vy.

~ Mississippi, 516 U.S. 742, 789 ( 1982) (O'Connor concurring

and dissenting) (“Even in the field of environmental

and far-reaching statutes”).'*

14. The BAP regulations apply to both the “primary” (on board/

substantive), and “secondary” (off the ship/procedural) conduct of

tanker operations in state waters. Contrary to Petitioners’ assertions,

state authority over vessels is not limited to secondary conduct.

Intertanko Brief at 37-39.

The characterization of a state rule as substantive or

procedural will be a sound surrogate for the conclusion

that would follow from a more discursive preemption

analysis. The distinction between substance and

procedure will, however, sometimes be obscure. As to

those close cases, how a given rule is characterized for

purposes of determining whether federal maritime law

preempts state law will turn on whether the state rule

unduly interferes with the federal interest in maintaining

the free flow of maritime commerce.

American Dredging Co. v. Miller, 510 U.S. 443, 457-58 (1994)

(Souter, concurring). In the environmental context, states have

historically been authorized to reasonably regulate in the realm of

primary conduct. In Huron Portland Cement Co., supra the Court

upheld state regulations designed to protect the environment while

simultaneously affecting primary conduct. Huron authorized state

regulations of vessel boiler operations in order to prevent air

pollution. See Ballard Shipping Co. v. Beach Shellfish, 32 F.3d. 623,

629 (1" Cir. 1994) (“State regulation of [ships or sailors] is not

automatically forbidden”), Chevron v. Hammond, 726 F.2d 483, 629

(9th Cir. 1984) cert. denied 471 U.S. 1 140 (1985) (upheld an Alaska

prohibition of tanker deballasting in state waters — an operational

procedure designed to ensure proper submergence and vessel

(Cont'd)

Cc. Federal case law supports the right of states to enact

regulations for the protection of the marine

environment so long as those regulations do not

conflict with federal law.

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

325 (1973) the Court considered an action to enjoin application

of the Florida Oil Spill Prevention and Pollution Control Act.

Id. at 327. Shipping interests sought to have the Florida Act

preempted by federal maritime interests and the Water Quality

Improvement Act of 1970. The act subjected shipowners and

terminal facilities to liability without fault up to $14,000,000

and $8,000,000, for cleanup costs incurred by the Federal

Government as a result of oil spills. It also authorizes the

President to promulgate regulations requiring ships and terminal

facilities to maintain equipment for the prevention of oil spills.

Id. The language of the Water Quality Improvement Act (WQIA)

is similar to OPA. Section 1161(0) of the Water Quality

Improvement Act provides that:

(1) Nothing in this section shall affect or

modify in any way the obligations of any owner

Or operator of any vessel, or of any owner or

operator of any onshore facility or offshore facility

to any person or agency under any provision of

law for damages to any publicly owned or

(Cont'd)

stability), Wyatt, M., Navigating the limits of State Spill Regulations:

How Far Can They Go?, 8 U.S.F. Maritime L.J. 1 (1995). OPA

§ 1018 affirms the Congressional intent that individual states may

reasonably act in the regulation of foreign oil transport to protect

unique, local environmental interests, even where the regulations

incidentally address on-board activities.

Petitioners argue that the Huron Court spared the state

regulation through a finding that it had a distinct purpose from the

federal statute in question: “vessel . . . safety for the federal statute

and air quality and cleanliness concerns for the municipality.”

Intertanko Brief at 41. This distinction is of no avail in the case at

bar. As noted with specificity infra, OPA consolidates safety and

environmental protection standards.

privately owned property resulting from a

discharge of any oil or from the removal of any

such oil.

(2) 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.

(3) Nothing in this section shall be construed

... to affect any State or local law not in conflict

with this section.

(emphasis added). The Court in Askew recognized that the

federal statute “contains a pervasive system of federal control

over discharges of oil into or upon the navigable waters of

the United States, adjoining shorelines, or into or upon the

waters of the contiguous zone.” Jd. at 330. Although the

Solicitor General argued that portions of the Florida Act were

contrary to the federal statute, the Court ruled that those

portions of the State act concerning the application of liability

to vessels had not yet been interpreted by the Florida Courts,

and were susceptible to an interpretation which would

harmonize the state and federal statutes. /d. at 331. As with

OPA, the WQIA contemplated cooperative action between

the states and the federal government, “that federal agencies

‘shall’ act ‘in coordination with State and local agencies.’ ”

Id. at 332. As with OPA, the reason for the WQIA savings

clause was “that the scheme of the Act is one which allows

— though it does not require — cooperation of the federal

regime with a state regime.” /d.

In Askew the Court declined to rule that Florida regulations

requiring “containment gear” would be per se invalid merely

because the subject to be regulated may require uniform federal

regulation. The Court ruled that resolution of this question, as

well as the question whether such regulations will conflict with

Coast Guard regulations, should await a concrete dispute under

applicable Florida regulations. /d. at 337.

Notably, in the case at bar there is no actual dispute alleged

no evidence on this record that any vessel entering the internal

waters of Washington was prevented from doing so or was

subject to enforcement because of the impossibility of

complying with state and federal regulations. This court should

not entertain hypothetical claims involving preemption. Rice v.

Norman Williams Co., 458 U.S. 654, 659 (1982) (“The existence

of a hypothetical or potential conflict is insufficient to warrant

the preemption of the state statute”); Exxon Corp. v. Governor

of Maryland, 437 U.S. 117, 131 (1978) (“This sort of

hypothetical conflict is not sufficient to warrant preemption”).

The Court in Askew also considered “whether a State

constitutionally may exercise its police power respecting

maritime activities concurrently with the Federal Government.”

Id. This question was answered affirmatively. “Even though

Congress thas acted in the admiralty area, state regulation is

permissible, absent a clear conflict with the federal law.”

Id. at 341.

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

the Court considered a challenge to the Washington Tanker Law,

which regulated the “design, size, and movement of oil tankers

in Puget Sound. . . .” Jd. at 155. Allegedly, the Washington law

was preempted by the PWSA/PTSA.

The Court in Ray began its analysis with “the assumption

that the historic police powers of the States were not to be

superseded by the Federal Act unless that was the clear and

manifest purpose of Congress.” Jd. at 157. As articulated above,

Congress has not expressed a clear and manifest purpose to

supersede Washington's historic police powers to enact

environmental regulations to prevent an oil spill. Section 1018

of OPA is an expression explicitly to the contrary.

A plurality of the Court in Ray ruled that Congress intended

to foreclose state regulation of tanker design and construction.

Id. at 164. This ruling, however, was limited to design and

construction.

This statutory pattern shows that Congress,

insofar as design characteristics are concerned,

has entrusted to the Secretary the duty of

determining which oil tankers are sufficiently safe

to be allowed to proceed in the navigable waters

of the United States. This indicates to us that

Congress intended uniform national standards for

design and construction of tankers that would

foreclose the imposition of different or more

stringent state requirements.

Id. at 163. The Court, however, recognized the State's right

to enact “reasonable, nondiscriminatory conservation and

environmental protection measures. ...” Id. at 164. “Of

course, that a tanker is certified under federal law as a safe

vessel insofar as its design and construction characteristics

are concerned does not mean that it is free to ignore otherwise

valid state or federal rules or regulations that do not constitute

design or construction specifications.” Id. at 168-69

(emphasis added).

Washington's BAP regulations are not concerned with

design and construction, and are simply “reasonable,

measures.” It is undisputed that compliance with both federal

and state regulations is not a physical impossibility. In addition,

the BAP regulations do not stand as an obstacle to the full

purposes and objectives of Congress, to the contrary they

promote the objectives of Congress.

In Chevron v. Hammond, 726 F.2d 483 (9th Cir. 1984),

cert. denied, 471 U.S. 1140 (1985), the Court addressed whether

Alaska’s environmental regulations prohibiting the operational

discharge of oil in Alaska’s water were preempted by Coast

Guard regulations. The Court further considered an

interpretation of the CWA, an environmental statute and a

predecessor to OPA. The Court in Chevron ruled on many of

the issues now presented.

Specifically, the Court reviewed a broad spectrum of federal

Statutes, including the PWSA/PTSA. Because the Ninth Circuit

specifically found that Ray was limited to design and

construction, it ruled that Ray was not dispositive to the outcome.

Id. at 487-488. In considering the issue of ir iplied field

preemption, the Court acknowledged that although the PWSA/

PTSA is silent on the subject of preemption, “numerous other

federal statutes provide convincing evidence of Congress’ intent

that, within three miles of shore, the protection of the marine

environment should be a collaborative federal/state effort rather

than an exclusively federal one.” /d. at 489. In particular, the

Court considered that the Clean Water Act, which was designed

to regulate the discharge of any pollutant into the nation’s

navigable waters, provided for a federal-state partnership for

the control of water pollution. Jd. at 489.

The Court further recognized “a well-settled

congressional policy to promote a state’s more stringent

regulation of the local marine environment.” /d. at 491. After

reviewing the comprehensive legislative scheme, the Court

concluded “that Congress has indicated emphatically that

there is no compelling need for uniformity in the regulation

of pollutant discharges — and that there is a positive value

in encouraging the development of local pollution control

standards stricter than the federal minimums.” Jd. The

argument that the comprehensiveness of the legislative

scheme evinces an intent to preempt was rejected.

“The complexity and comprehensiveness of federal marine

environmental regulation are particularly appropriate without

regard to the question of preemption because these

regulations must ‘be sufficiently comprehensive to authorize

and govern programs in States which had no. . . requirements

of their own as well as cooperatively in States with such

requirements.” ” Jd. at 492.

The reasoning of the Ninth Circuit in Chevron is directly

applicable here. OPA, which is modeled after the CWA, is the

most recent statement of Congressional intent enacted

immediately after the worst oil spill in American history. OPA

authorizes comprehensive federal regulation in recognition of

the fact that many jurisdictions will not enact relevant regulation.

Like the CWA, however, it recognizes that local regulation with

involvement by local officials is the best way to protect the

local environment. Federal enactments create only minimum

requirements.

The Court in Chevron a'so considered the effect of the local

statute on international affairs, and distinguished those valid

concerns with tanker design from those relevant to

environmental issues.

Although national uniformity and international

consensus are critical concerns in the

establishment of tanker design standards, those

concerns are not essential in the regulation of

polluiant discharges into coastal waters. Once a

ship is constructed, it cannot meet new or different

design requirements in various ports. A ship's

discharge of pollutants can, however, be varied

according to environmental standards and

conditions in different jurisdictions.

Hypothetically, state regulation regarding the

discharge of pollutants could possibly interfere

with the establishment of nationally uniform

design requirements. But, for the most part local

environmental regulations can co-exist — as they

do here — with federal regulations without

impinging on the exclusively federal concerns of

vessel design and traffic safety.

Id. at 493. The overall nature of the environmental regulatory

scheme has not changed. Federal and state environmental

regulations can co-exist, as they do here. Tank vessels

entering the internal waters of Washington State can comply

with the state BAP regulations, Coast Guard regulations and

the provisions of international treaties. Prevention of oil spills

and deference to traditional state police powers continues to

dominate considerations of illusory uniformity.'* “Thus, we

conclude Congress intended that stricter state standards for

oil pollution within three miles of shore be enforced in

addition to Coast Guard regulations issued under the PWSA/

PTSA.” Id. at 495.

In Berman Enterprises v. Jorling, 793 F. Supp. 408

(E.D.N.Y. 1992) the Plaintiffs claimed that the New York

Environmental Conservation Law was preempted by operation

of the PSWA as amended and subject to Coast Guard regulation.

Id. at 414. The Plaintiffs in Berman also relied upon Ray to

support their contention of conflict and field preemption. /d.

The Berman Court rejected Plaintiffs’ claim of preemption and

their reliance on Ray. “Contrary to plaintiffs’ view, Ray indicates

how far the Supreme Court is willing to go to allow local

regulation of oil tanker activity.” Jd. at 415 (Citing L. Tribe,

American Constitutional Law, § 6-28, at 487 (2d ed. 1988).

In response to Plaintiffs’ claim of conflict preemption, the Court

in Berman again relied upon Ray and ruled that only an actual

conflict between state and federal law could result in preemption.

Ray, however, only invalidated state provisions

where there was an actual conflict between state

and federal law. Where there was no such conflict,

the Court steadfastly refused to infer preemption

in the field of environmental protection, an area

that lies at the core of the states’ police powers.

Id. at 415-416. In the case at bar, there is no actual conflict.

The Court in Berman explicitly recognized that states are

authorized to exercise their historic police powers not only after

15. The Court in Chevron recognized that the PWSA/PTSA

does not mandate strict international uniformity and that the statute

gives the Coast Guard specific authority to establish stricter standards

than those set by international agreements, 46 U.S.C. § 391a(6).

“This indicates Congress’ view that the 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.” Chevron at 493-494.

the oil hits the water, but to prevent oil spills in the first instance.

“Ray specifically allowed for statutes that are designed to protect

the environment against imminent (or even non-imminent)

harms.” /d. at 417. A more eloquent statement of the necessity

for local regulation is hard to imagine.

Plaintiffs in effect are asking the federal courts to

tell New York that it may not, in the exercise of

its police powers, plan against the desecration of

its waters and coast that would otherwise surely

result from the high volume of oil barge traffic

on the state’s waterways. Plaintiffs would instead

have the state rely entirely on distant and

overextended officials in Washington, D.C. for

basic environmental protections. Such an

ineffective scheme is not contemplated by the

federal Constitution.

Id. at 416-417.

The Court in Berman explicitly considered the effect of the

non preemption provisions of both the CWA and OPA and

acknowledges that if there were otherwise any doubt about

preemption, these acts “settle the issue.” Jd. at 416. After quoting

both acts, the Court concluded that “[flar from being preempted,

{New York] accepts the federal government’s invitation to provide

additional means of enforcing the federal policy favoring clean

water.” Id.'° See also Ballard Shipping Co., v. Beach Shellfish,

32 F.2d 623 (ist Cir. 1994) (upholding state law despite the

existence of a direct conflict between state law and maritime law)."’

16. Addressing the issue of interstate commerce, the Court in

Berman ruled that there was no evidence that the state's regulation

created an unreasonable burden or that the burden exceeded the cost

of policing and protecting against adverse consequences of oil

transportation on New York's waterways. “The Ray Court indicated

that commerce clause challenges to environmental protection statutes

should not be entertained lightly.” /d. at 417.

17. In Ballard Shipping, the Court addressed the state interests

as follows:

(Cont'd)

In the case at bar, there is no actual conflict between the

federal regulatory scheme and Washington’s BAP regulations;

the State’s regulations do not render compliance with federal

law burdensome or impossible and do not inhibit conduct that

federal law specifically encourages. There is no evidence in the

record that compliance with the BAP regulations is anything

more than de minimus in relation to the overall costs of oil tanker

operation. See Affidavit of Arthur McKenzie, JA-330. Moreover,

the protection afforded by the BAP regulations is unmistakable.

See Affidavit of Stanley Norman, JA-253.

1. The BAP regulations do not stand as an obstacle to

the accomplishment and execution of the full

purposes and objectives of Congress.

After the Exxon Valdez disaster, Congress recognized that

only a broader joint partnership between the federal government

and the states could prevent future oil tragedies. In the true spirit

of federalism, Congress enacted OPA with the intent of

consolidating and enhancing prior Congressional measures

expected to prevent oil spills.

OPA’s fundamental purpose and objective is oil spill

prevention. This is accomplished through a comprehensive

integration of liability, compensation and vessel standards.

In the field of tanker regulation, the overarching

purposes of Congress are best revealed by OPA

90. As the most recent federal statute in the field,

(Cont'd)

No one can doubt that the state's interest in avoiding

pollution in its navigable waters and on its shores, and

in redressing injury to its citizens from such pollution,

is a weighty one. In Huron Portland Cement, the

Supreme Court described state air pollution laws as a

cle ic example of police power, and continued: “In the

exercise of that power, the states .. . may act, in many

areas of interstate commerce and maritime activities,

concurrently with the federal government.” 342 U.S. at

442.

Id. (italicized emphasis added, bold emphasis original).

OPA 90 reflects “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.

148 F.3d at 1043 (internal citation omitted; emphasis in

original). OPA serves to remove the patchwork of oil spill

prevention measures by placing them into a comprehensive,

environmentally oriented statute.'* Prior to OPA, oil spill

liability provisions were codified separately from vessel

safety standards. OPA exhibits a marked change in the law

through the compilation of particular vessel standards into

an environmental context. OPA’s evolution exhibits Congress’

continuing efforts to strengthen laws designed to prevent oil

spills, and is a direct recognition that the pre-Exxon Valdez

status quo of liability and safety provisions were

unacceptable. Section 1018 now presents a single

comprehensive savings clause which includes authorization

of “additional [state] ... requirements ... relating to the

discharge, or substantial threat of a discharge, of oil.” Such

a threat is certainly presented by an oil tanker which is poorly

operated in state waters.

2. The BAP regulations do not conflict with federal

statutes, treaties or international law.

lt is virtually undisputed that compliance with the State,

federal and international standards is not a physical

impossibility. See JA-87. In addition, the federal regulations

do not afford protection for unique local conditions.

Petitioners allege that the lower court did not apply a

comparative analysis of the BAP regulations with their federal

18. “What the Nation needs is a package of complementary

international, national, and State laws that will adequately

compensate victims of oil spills. . . . Instead, there is [currently] a

fragmented collection of Federal and State laws providing inadequate

cleanup and damage remedies . . ” OPA 90, Sen. Rept. No. 101-94,

2, July 28, 1989.

international counterparts. U.S. Brief at 16. Petitioners are

mistaken. Both Petitioners and Respondents exhaustively

briefed comparisons of the State rules with international

standards. See e.g., Intervenor Dist. Ct. Sum. J. Res., 26-40;

U.S. 9" Cir. Rep. Br. 8-16; Intervenor 9 Cir. Res. Br. 45-52.

The District Court entailed a specific analysis of federal,

international and State provisions. 947 F. Supp. at 1496-97.

Ultimately, as discussed, infra, Petitioners’ assertions of

international law conflicts were denied because the international

treaty provisions at bar are non-self-executing and set only

minimum standards. /d., at 1490, n.3; 148 F.3d at 1063.

D. The Strait of Juan de Fuca is the internal waters of

the State of Washington — the State has greater

sovereign interest and authority over internal

waters."”

To delimitate internal waters, the Court has adopted the

rules of the 1958 Convention on the Territorial Sea and the

Contiguous Zone. See United States v. California, 381 U.S. 139,

165 (1965); Convention on the Territorial Sea and the

Contiguous Zone, April 29, 1958, 15 U.S.T. 1606; United States

v. Alaska, __ U.S. ___, __, 117 S. Ct. 1888, 1893 (1997). Three

requirements must be met to satisfy the “historic-waters”

classification; “the United States: (1) exercises authority over

the area; (2) has done so continuously; and (3) has done so with

the acquiescence of foreign nations.” Alaska, S. Ct. at 1895. All

three requirements are met within the Strait of Juan de Fuca.”

19. In the appellate court, the Government argued for the first

time that the BAP regulations interfere with the right of innocent

passage. The Government is wrong. But this issue was never raised

in the District Court. It should not be considered for the first time

on appeal. The Ninth Circuit was correct is its decision not to

consider this issue. 148 F.3d 1063-64. The government was explicitly

invited by Intertanko to intervene in the District Court, but declined

the invitation. Supp. Excerpts at 718.

20. The Strait of Juan de Fuca is a geographic cul-de-sac. Both

U.S. and Canadian waters where tanker ports are located are

(Cont'd)

The BAP regulations only extend to tankers which

physically enter the internal, or “historic,” waters of Washington

State, including the Strait of Juan de Fuca. In 1993, the Coast

Guard explicitly acknowledged that “U.S. waters in the Strait

of Juan de Fuca are internal waters of the United States.”

58 FR 27629 (1993) (emphasis added). The Coast Guard finding

is consistent with a 1984 Canadian Supreme Court decision

that all waters on the Canadian side of the Strait are comprised

of the internal waters of both the Canadian government and

British Columbia. See Re: Ownership of the Bed of the Strait of

Georgia, 1 S.C.R. 388, 389 (1984). As internal waters,

Washington State owns all the submerged lands under the Strait.

United States v Louisiana, 470 U.S. 89, 94 (1985). Washington

State’s jurisdiction over, and proprietary rights in, the Strait of

Juan de Fuca, to the Canadian boundary, underscores its interest

in preventing oil spills within these waters.”"

1. The presumption against preemption is stronger

within internal waters.

Within internal waters, a state retains a right of sovereignty

to regulate surface traffic concurrently with the United States.

Alaska, supra at 1892 (“Ownership of submerged lands —

which carries with it the power to control navigation, fishing,

(Cont'd)

unquestionably within sovereign internal waters. The Court has

commented that under U.S. policy, this geographical reality may

itself be determinative on the classification of Strait waters

as internal. United States v. Alaska, 521 U.S. 1, 18 (1997)

(“the character of the strait depends on the character of the waters

to which it leads”).

21. The status of the Strait as internal waters has great relevance

to the extent of Washington's police powers. One of the foundations

of the Government's argument is that international concerns are

greater with respect to the right of foreign tankers entering the Strait

of Juan de Fuca. Correspondingly, the State’s right to exercise it

police powers must be at the highest within internal waters, waters

which belong to the State as a matter of constitutional principle

independent of any Congressional grant. See Pollard's Lessee v.

Hagan, 3 How. 212 (1845).

and other public uses of water — is an essential attribute of

sovereignty”). While the State concedes that it does not have

the authority to prohibit entry of tankers into the Strait (State

Br. in Opp. 3, fn.4), it retains an even stronger right to exercise

its police powers within its internal waters as compared to

territorial waters. As the BAP regulations relate to internal

ee the presumption against preemption is more

di t.

E. There exits a strong presumption against preemption.

The historic police powers are not to be superseded

absent a clear expression of Congressional purpose.

All parties recognize that there exists a strong presumption

against preemption. Cipollone v. Liggett Group, Inc., 505 U.S.

504, 518 (1992). In evaluating a federal law’s preemptive effect,

courts proceed from the presumption that the historic police

powers of the state are not to be superseded by a federal act

“unless that [is] the clear and manifest purpose of Congress.”

Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)

(emphasis added).” Quite simply, Congress has not clearly

manifested its purpose to preempt efforts by the states to prevent

oil spills. Just to the contrary, OPA Section 1018 specifically

authorizes the states to regulate to prevent oil spills.

22. An unexpressed purpose of Congress to set aside

Statutes of the states regulating their internal affairs

is not lightly to be inferred, and ought not to be

implied where the legislative command, read in the

light of its history, remains ambiguous... .

Furthermore, we should be slow to strike down

legislation which the state concededly had power to

enact because of its asserted burden on the federal

government. For the state is powerless to remove the

ill effects of our decision, while the national

government, which has the ultimate power, remains

free to remove the burden.

Penn Dairies v. Milk Control Comm'n, 318 U.S. 261, 275 (1943).

F. The Oil Pollution Act of 1990 authorizes the states to

enact complementary regulations to prevent oil spills

or the substantial threat of an oil spill.

1. The clear language of Section 1018.

Contrary to expressing its “clear and manifest” purpose to

supersede the state’s historic police powers, the clear language

of OPA provides for a savings clause or express non-preemption.

The relevant statutory language appears as follows:

(a) Nothing in this Act or the Act of March 3,

1851, shall...

(1) affect, or be construed or interpreted as

preempting, the authority of any State or political

subdivision thereof from imposing any additional

liability or requirements with respect to . . . (A) the

discharge of oil or other pollution by oil within such

State; or (B) any removal activities in connection

with such discharge; .

or section 9509 of the Internal Revenue Code of 1986

._. . Shall in any way affect, or be construed to affect,

the authority of the United States or any State or

political subdivision thereof

(1) to impose additional liability or

additional requirements: or

(2) to impose or to determine the

amount of, any fine or penalty (whetner

criminal or civil in nature) for any

violation of law;

relating to the discharge, or substantial threat of

discharge, of oil.

OPA § 1018 (emphasis added). This clear statutory language

obviates the necessity of consideration of the congressional history.

See Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837, 842-43 (1984) (“If the intent of Congress is

clear, that is the end of the matter for the court . . . must give effect

to the unambiguously expressed intent of Congress”).

Until now, Petitioners have conceded that Section 1018(a)

of OPA granted to the states additional authority to enact

regulations relevant to the issue of liability for an oil spill. 148

F.3d at 1059 (“Intertanko asserts, § 1018 is limited in its

application to state laws concerning liability and penalties

...."). They have offered no explanation at all concerning the

meaning or purpose of Section 1018(c). Petitioners have now

apparently abandoned their earlier interpretations. Intertanko

and the Government are not the only ones who have dramatically

changed their proffered interpretation of Section 1018. Even

the Coast Guard has previously conceded that Section 1018

authorized the states to legislate in this area without fear of

preemption.”

23. In a memorandum dated August 18, 1992 the Coast Guard

Commandant, J.W. Kime, states:

The Oil Pollution Act of 1990 (OPA 90) has been with

us for over two years now. The act materially altered the

nature of the relationship between the Coast Guard and

the states in the marine environmental protection (MEP)

arena. States now have the opportunity for a more active

role in pollution prevention, response, access to the Oil

Spill liability Trust Fund (the fund), and freedom to regulate

in areas historically reserved to federal agencies.

JA-301 (emphasis added). In a memorandum dated May 19, 1993 from

A. E. Henn, Chief, Office of Marine Safety, Security and Environmental

Protection, the Coast Guard acknowledged:

The Oil Pollution Act of 1990 (OPA 90) specifically

affirmed the rights of states to protect their marine

environment.

Several states have been extremely pro-active in

developing programs that may differ somewhai from our

Coast Guard policies and may exceed our mandates and

regulations. OPA 90 did not preempt states rights, and, in

our efforts we must be committed to work together to

complement rather than duplicate. Should Federal

preemption of a state mandate become necessary, it will

become a complex legal issue.

JA-292-293.

Petitioners’ previous arguments made little sense.”

Petitioners now argue that Section 1018 only preserves the status

quo; that this section preserves for the states whatever rights

they may have had to enact oil spill regulations before the

passage of OPA, but that those rights are not expanded by OPA.

U.S. Brief, at 44.% This interpretation is inconsistent with the

plain language of the statute and this Court’s interpretations of

a virtually identical savings clause in the Water Quality

Improvement Act. See Askew v. American Waterways Operators,

Inc., supra.

By the use of the words “additional requirements,” Congress

can only have meant additional to those requirements already

established by OPA. The State of Washington has accepted

Congress’ invitation to impose additional requirements.”

24. If § 1018 (a) grants to the states ample authority to impose

their own standards of liability which differ from federal or

international standards, then no additional statutory language is

necessary to achieve this result. Subsection (c) expanded the

permissible scope of state action from that already provided in

subsection (a), otherwise it would be merely superfluous. The only

real difference between subsection (a) and subsection (c) is that the

latter allows the states to impose both “additional liability or

additional requirements” for a “substantial threat of a discharge.

of oil”, and not just for oil discharges or removal activities. It is

clear that the terms “additional liability” and “additional

requirements” have a different meaning, otherwise it would be a

mere redundancy.

25. Petitioners’ arguments that OPA § 1018 is limited to Title I

of the Act (Intertanko Brief at 46-47) are in discord with the language

of the provision. § 1018(a)(B) preserves the authority of the states

to impose “additional ... requirements with respect to .. . any

removal activities ...” Jd. (emphasis added). Federal removal

activities are placed within Title IV of the Act, along with prevention

standards. This fact did not escape the District Court's attention;

“Thus, the savings clause cannot be limited to Title I, but must also

include Title IV.” 947 F. Supp. at 1492.

26. Petitioners contend that a “substantial threat of a discharge”

is limited to “incident{s}) involving a vessel that may create a

(Cont'd)

Petitioners dismiss the unique language and purpose of OPA

§ 1018(c). The provision is not found in any prior oil pollution

liability statute. Prior to the passage of OPA, environmental

statutes designed to prevent oil pollution [WQIA § 11(0)(2),

CWA § 311(0)(2)] contained savings clauses which were

virtually indistinguishable from OPA § 1018(a). However, in

the construction of the OPA savings clause, Congress

conspicuously changed the structure of the prior provisions and

added subsection (c). Had Congress merely intended OPA

§ 1018 to be limited to liability and compensation, subpart (c)

would not have been necessary. While OPA does not expand

State police powers per se, the broader savings clause of OPA

allows the states to utilize their police powers to impose a

broader range of environmental restrictions than previously

enacted statutes. See Congressional letter JA-327.

2. OPA is an environmental statute.

Petitioners attempt to dress the BAP regulations in

admiralty clothing to expand the reach of federal authority, yet

Petitioners cannot escape the fundamental underpinning of OPA:

environmental protection. OPA is not a federal maritime statute

in the character of PWSA/PTSA, but is instead an integration

of prior liability and safety regimes, in particular CWA § 311:

“[t}he body of law already established under section 311 of the

Clean Water Act is the foundation of [OPA].” Senate Report

(Cont'd)

significant risk of discharge of cargo oil. Such incidents include,

but are not limited to groundings, stranding, collisions, hull damage,

fire explosion, loss of propulsion, flooding, on-deck spills, or other

similar occurrences.” Intertanko at 44, n.30, quoting 33 C.F.R.

§ 155.1020 (emphasis added). Even assuming the applicability of

this Coast Guard definition, the language of OPA § 1018(c)

authorizes regulations “relating to” these risks; prevention of these

incidents in State waters are precisely the purpose of the BAP

regulations. Undermining Petitioners’ contention that states only

have the power to regulate for liability and compensation (i.e., after

oil hits the water) is the inclusion of “significant risk.” in the Coast

Guard definition. Where a significant risk exists, oil is obviously

still confined to the tanker.

No, 101-94, 4, July 28, 1989 (emphasis added).”” OPA presents

a comprehensive regime for oil spill prevention and stands alone

in dine an authoritative federal hin desiened

to prevent oil spills by embracing both liability and safety.”

27. Petitioners’ assertion that environmental protection of the

marine environment has historically been within the exclusive

domain of the federal government is factually wrong. E.g. The

Chlorine Institute, Inc. v. California Highway Patrol, 29 F.3d 495,

499 (9" Cir. 1994) (“The modern environmental movement started

with the states”). The emergence of domestic tanker safety standards

enacted specifically to prevent oil pollution did not occur until

codification of the 1972 Ports and Waterways Safety Act (PWSA),

33 U.S.C. § 1221 et seg. Environmental oil spill liability regimes

did not appear until passage of the 1970 WQIA.

Prior to 1972, existing [U.S.] legislation dealt primarily

with regulations governing the physical security of

vessels, ports and waterfront facilities. For example, the

Tank Vessel Act of 1936 was enacted to prevent damage

to life and property from the carriage of flammable or

combustible liquid cargos in bulk, but did not

specifically address the protection of the environmental

quality of US ports and navigable waters. In 1950

Congress passed the Magnuson Act which authorized

the promulgation of rules governing the protection of

vessels, harbours, ports and waterfront facilities in the

United States in cases where national security was

endangered. Neither of these laws, however, was

considered sufficiently broad to encompass protection

of the marine environment.

De La Rue, supra at 773.

28. The primary object and purpose of the PWSA/PTSA and

Title 46 is to ensure safe construction design and navigational

standards, fundamentally maritime issues. Nowhere within these acts

is there any provision for liability in the event of an oil spill. This

conspicuous absence confirms that these acts are maritime statutes,

not environmental statutes. Under Title 46, “prohibited acts” only

cover noncompliance with construction and design characteristics.

46 U.S.C. § 3713. Similarly, no treaties before the Court provide

for spill liability. MARPOL 73/78 does provide for enforcement of

(Cont'd)

Congress provides that the national policy to prevent water

pollution rests primarily with the states; “[i}t is the policy of

Congress to recognize, preserve, and protect the primary

responsibilities and rights of States to prevent, reduce, and

eliminate pollution.” CWA 101(b) (emphasis added). See also

Clean Air Act, 42 U.S.C. § 7407(a)(3) (“the prevention and

control of air pollution at its source is the primary responsibility

of states and local governments”) (emphasis added). Thus, there

is not a uniquely federal interest in protecting the quality of the

nation’s water. Rather, the primary responsibility for preventing

oil pollution rests on the states. Although there is arguably a

federal interest in preventing oil pollution in state waters, this

interest does not apply to the exclusion of state law.

Petitioners consistently refuse to acknowledge the

difference between maritime regulation and environmental

regulation. This difference, however, did not escape the Court

in Ray, 435 U.S. at 164. (“We do not question in the slightest

the prior cases holding that enrolled [those engaged in

domestic or coastwise trade] and registered [those engaged

in foreign trade] vessels must conform to ‘reasonable,

nondiscriminatory conservation and environmental

protection measures’ ... imposed by a State.”). The BAP

regulations conform precisely to the above description: the

BAP regulations are “reasonable, nondiscriminatory

conservation and environmental protection measures.”

3. Notwithstanding the clear language of Section

1018, Congressional history supports Intervenors’

interpretation of the savings clause.

As the language of the Congressional record makes clear,

Section 1018 of OPA was modeled after the savings clauses of

the Water Quality Improvement Act and the Clean Water Act.

(Cont'd)

intentional discharge violations, but does not specify a remedy.

MARPOL 73/78, Art. 6. Actual prohibition of oil pollution is

prescribed under distinguishable federal environmental statutes in

coordination with state law, particularly OPA and the CWA.

Congress intended states to have the ability to protect their

environment before oil hits the water.

To date, Federal legislation has affirmed the rights

of States to protect their own air, water, and land

resources by permitting them to establish State

standards which are more restrictive than federal

standards.

[T]he Federal statute is designed to provide basic

protection for the environment and victims

damaged by spills of oil. Any State wishing to

impose a greater degree of protection for its

resources and citizens is entitled to do so.

S. Report No. 101-94, at 6 (emphasis added).

The long-standing policy in environmental laws

of not preempting State authority and recognizing

the rights of the States to determine for themselves

the best way to protect their citizens, is clearly

affirmed in S. 686 [i.e., § 1018].

This subsection [(1018(c))] reinforces the position

stated clearly elsewhere that no aspect of State

oil spill programs is preempted, including the

authority to impose additional requirements or

penalties.

Id., 17-18 (emphasis added).

Petitioners simply pay undue reliance upon the House

Conference Report statement that OPA “does not disturb the

Supreme Court's decision in Ray v. [ARCO].” H.R. Conf. Rep.

No. 653, 101" Cong., 2™ Sess. At 122 (1990), reprinted in 1990

U.S.C.C.A.N. 800. Legislative history confirms that the purpose

of this qualification was to ensure that the states would not act

in the areas of design and construction.”

29. A Commerce, Science and Transportation Committee

Report addressing the proposed legislation placed the pre-OPA

(Cont'd)

G. The express preemption asserted by the U.S. Coast

Guard has exceeded the scope of its administrative

authority.

The U.S. Coast Guard has no greater authority to preempt

State regulation than granted under the terms of the statute

itself.

[A] federal agency may preempt state law only

when and if it is acting within the scope of its

congressionally delegated authority. This is true

for at least two reasons. First, an agency literally

has no power to act, let alone preempt the validly

enacted legislation of a sovereign State, unless

and until Congress confers power upon it. Second,

the best way of determining whether Congress

intended the regulations of an administrative

agency to displace state law is to examine the

nature and scope of the authority granted by

Congress to the agency.

An agency may not confer power upon itself. To

permit an agency to expand its power in the face

of a congressional limitation on its jurisdiction

would be to grant to the agency power to override

Congress. This we are both unwilling and unable

to do.

(Cont'd)

savings clause, then known as Section 112, within Title I, which also

included tanker vessel standards. See Senate Report 101-99, Aug. 1,

1989. The Committee specifically commented on the objective of

Section 112: “This section declares that nothing in this legislation shall

be construed or interpreted to affect in any way the authority of a State

or political subdivision to regulate oil tankers or to provide for liability

or response planning and activities in State waters.” /d. at 21 (emphasis

added). The later acknowledgment of Ray in the House Conference

Report did not invalidate this assertion, but merely qualified that it did

not apply to the design and construction of tankers.

Louisiana Pub. Serv. Conn'n v. FCC, 476 U.S. 355, 374

(1986) (emphasis added).*° Although deference to

administrative agencies in some cases is appropriate, federal

courts should not allow deference to “slip into a judicial

inertia” and “rubber stamp” administrative determinations.

Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S.

89, 97 (1983). This deference is especially inappropriate

where agency action “is premised on its understanding of a

specific Congressional intent . . . [which is] the quintessential

judicial function of deciding what a statute means.” /d. 464

U.S. at 97-98 n.8. See also Trustees of California State

University v. Riley, 74 F.3d 960, 963 (9th Cir. 1996) (“In

reviewing an agency's construction of a statute, the court

must reject those constructions that are contrary to clear

Congressional intent or frustrate the policy that Congress

sought to implement”).

In the case at bar, Congress has spoken to the precise

issue in question. The statute and the legislative history make

clear that Congress intended to allow the states to implement

protective regulations to prevent oil spills within their

jurisdiction. The Coast Guard’s determination to the contrary

“is premised on its understanding of a specific Congressional

intent,” and therefore is entitled to little deference. The Coast

Guard “may not confer power upon itself.” Louisiana Pub.

Serv. Conn'n v. FCC, supra. The Coast Guard’s determination

of the preemptive effect of its regulations is simply beyond

its authority and has no effect. This was precisely the ruling

30. See also Jenkins v. 1.N.S., 108 F.3d 195, 200 (9th Cir. 1997)

(“{AJ]n agency interpretation is not entitl .d to deference if it is

contrary to clearly expressed congressional intent. . .. Statements

in a Committee Report are not law, and it subverts our constitutional

structure to treat them as such when the statutory language is facially

unambiguous.”); State of Alaska v. Babbitt, 54 F.3d 549, 552 (9th

Cir. 1995) (we consider “whether Congress ‘has directly spoken to

the precise question at issue’ either in the statute itself or in the

legislative history.”) (Emphasis added).

of the District Court, 947 F. Supp. 1496, and the Ninth

Circuit. 148 F.3d at 1068.*!

H. The treaties cited by Petitioners are not preemptive

because they are not self-executing.

Petitioners contend that as the “supreme Law of the Land,”

international treaties independently preempt the BAP

regulations under the Constitution, Art. VI, Cl. 2. Intertanko

Brief at 29, U.S. Brief at 28. A more sweeping generalization

on treaty interpretation is hard to imagine. Respondents agree

that by virtue of a treaty’s ratification, it is the “supreme Law

of the Land.” This elementary conclusion, however, is of no

import on the question of state law preemption by treaty

provisions. Such provisions are subject to the same substantive

limitations as any other legislation. Reid v. Covert, 354 U.S. 1,

16-19 (1965).

31. Where a federal agency asserts differing policies on the

issue of preemption, any deference to which they might otherwise

be entitled evaporates. /NS v. Cardoza-Fonseca, 480 U.S. 421, 446

fn.30 (1987) (“An agency interpretation of a relevant provision which

conflicts with the agency's earlier interpretation is ‘entitled to

considerably less deference’ than a consistently held agency held

view.”); Seldovia Native Ass'n, Inc., v. Jujan, 904 F.2d 1335, 1345

(9th Cir. 1990) (“When an agency reverses a prior policy or statutory

interpretation, its most recent expression is accorded less deference

than is ordinarily extended to agency determinations.”); Mt. Graham

Red Squirrel v. Madigan, 954 F.2d 1441, 1457 (9th Cir. 1992)

(“Given this fluctuation [of the agency's position] over the course

of two years, we decline to rely on the Forest Service's

“ ‘expertise.’ ”). The Coast Guard’s pronouncement that its

regulations are to have preemptive effect are inconsistent with its

previous memoranda, and entitled to no deference. See n.20, supra.

32. When federal courts are presented with questions of

international law preempting a state regulation, they are not bound

by one set mode of interpretation. Siderman de Blake v. Republic of

Argentina, 965 F.2d 699, 714-715 (9th Cir. 1992): Restatement

(Third) of Foreign Relations Law of the United States (Restatement),

§ 325, comment (d) (“[d]ifferent approaches to interpretation have

(Cont'd)

In order for a vessel standard contained in an international

treaty to constitutionally preempt the BAP regulations, it must

be of a self-executing character. A self-executing standard is

one which has specific requirements which can be directly

applied by the courts. U.S. v. Verdugo-Urquidez, 939 F.2d 1341,

1359, n.17 (9 Cir. 1991) (“A self-executing treaty is one which,

of its own force, confers rights on individuals, without the need

for any implementing legislation”). There are at least four

relevant factors to be considered when determining whether a

treaty is self-executing:

(1) The purposes of the treaty and the objectives

of its creators, (2) the existence of domestic

procedures and institutions appropriate for direct

implementation, (3) the availability and feasibility

of alternative enforcement mechanisms, and (4)

the immediate and long-range _ social

consequences of self- or non-self-execution.

People of Saipan v United States Department of Interior,

502 F.2d 90, 97 (9th Cir. 1974), cert. denied, 420 U.S. 1003

(Cont'd)

developed for particular categories of agreements”). When state

legislation is alleged to violate an international agreement, the federal

judiciary will examine the treaty in light of the expectations the

United States had when ratifying the agreement and subsequent

changes in U.S. policy and the international order. Reid v Covert,

354 U.S. 1, 18 (1957) (“when a [federal] statute which is subsequent

in time is inconsistent with a treaty, the statute to the extent of conflict

renders the treaty null”). OPA necessarily alters contemporary

interpretation of international regimes.

Application of international law within the federal judiciary is

limited to constraints imposed by the Constitution. Guaranty Trust

Co. v United States, 304 U.S. 126, 143 (1938) (“Even the language

of a treaty, wherever reasonably possible, will be construed so as

not to override state laws or to impair rights arising under them”).

International law cannot supersede the Tenth Amendment in and of

itself, particularly with respect to state police powers designed to

prevent marine pollution. See, e.g., Askew v American Waterways,

supra; Huron Portland Cement, supra.

(1975). When treaty provisions before a Court are phrased

in broad generalities, they cannot be self-executing. Frolova

v Union of Soviet Socialist Republics, 761 F.2d 370, 374

(7th Cir. 1985). See also 947 F. Supp. at 1490 n.3.

A non-self-executing treaty does not provide definitive rules

which a court may apply to reflect preemption.

(3) Courts in the United States are bound to give

effect to international law and international

agreements of the United States, except that a

“non-self-executing” agreement will not be given

effect as law in the absence of necessary

legislation.

(4) An international agreement is “non-self-

executing” (a) if the agreement manifests an

intention that it shall not become effective as

domestic law without the enactment of

implementing legislation.

Restatement (Third) of Foreign Relations Law of the United

States (Restatement), § 111 (1987).

None of the treaty provisions under consideration are

self-executing. The treaties under consideration impose

international vessel standards that require unilateral

implementation on the domestic level by each signatory nation.

All treaty provisions relied upon by Petitioners therefore

necessarily require implementation by the Coast Guard." It is

33. STCW provides that “Parties undertake to promulgate all

laws, decrees, orders and regulations and to take all other steps which

may be necessary to give the Convention full and complete effect.”

STCW, Art. I(1). STCW standards set forth the least common

denominator in vessel safety: “Although conceived as a minimum

requirement below which no flag state should fall, the lack of clear

definition of training standards means that STCW is often in effect

the maximum level above which many states fail to rise.” Safer Ships,

Cleaner Seas; Report of Lord Donaldson's Inquiry into the

Prevention of Pollution from Merchant Shipping (Donaldson Report)

(Cont'd)

not, therefore, the treaties which are relevant to the issue of

preemption, but the Coast Guard regulations.

(Cont'd)

(emphasis added) (JA-323). STCW is implemented by the Coast

Guard pursuant to 46 U.S.C. § 2101 et seq.

Petitioners claim that many of the BAP regulations are

prohibited by 1995 STCW amendments. These amendments have

no force of law in the United States. The 1995 amendments came

into international force February 1, 1997. However, the Coast Guard

has merely issued a notice of intent to issue an interim rule in

conformity with the amendments. 62 FR 5197 (1997). After the

interim rule is issued, the amendments will not be enforced by the

Coast Guard for previously certified vessels until January 31, 2002.

Id. at 5198-99.

SOLAS also sets forth the least common denominator in vessel

safety. Each State is required to unilaterally implement regulations

for their vessels which are “at least as effective as that required by

the [Convention]” SOLAS Ch.1, Pt. A, Reg. 5 (emphasis added).

SOLAS is implemented by the Coast Guard pursuant to

3 C.F.R. § 277.

MARPOL 73/78 indicates that “[pJarties ... shall issue, or

cause to be issued, regulations or instructions on the procedures to

be followed in reporting incidents.” MARPOL 73/78, Protocol I,

Art. V(2). The Convention further provides that “[eJach party to the

Convention shall ... make all arrangements necessary for an

appropriate officer or agency to receive and process all reports on

incidents.” MARPOL 73/78, Art. 8(2)(a) (emphasis added).

MARPOL 73/78 is implemented by the Coast Guard pursuant to

33 U.S.C. §§ 1901-1915.

COLREG sets forth minimum, non-self-executing standards for

navigational safety and nations are free to implement their own

regulations: “[njothing in these Rules shall interfere with the

operation of special rules made by an appropriate authority for

roadsteads, harbors, rivers, lakes, or waterways connected with the

high seas and navigable by seagoing vessels. Such special rules shall

coaform as closely as possible to these Rules” COLREG R. 1(b).

The Coast Guard “is authorized to promulgate such reasonable rules

and regulations as are necessary to implement the provisions of

[COLREG].” 33 U.S.C. § 1607.

I. International laws designed to prevent oil spills are

not uniform.

Uniform international vessel standards are non-existent, a

fiction. Reciprocity and uniformity are amorphous international

goals and do not exist in any recognizable order, and certainly

not in practice. International vessel standards are all subjectively

interpreted by each signatory nation. Restatement, § 325,

Reporters’ Note (4).

None of the international agreements raised by Petitioners

set forth specific rules which are, or are required to be, uniformly

complied with by the international shipping community. See

Dec. Sally Lentz, JA-211. IMO admits that treaty standards are

non-self-executing and the least common denominator for a flag-

state to follow when implementing domestic standards. Flag

State Implementation, IMO Maritime Safety Committee, MSC

66/12/1 (January 29, 1996). See Supp. Excerpts at 514-516 par.

8-10. Uniformity in international standards is all but nonexistent.

Flag States have duties as well as rights. They

have a duty to ensure that their ships comply with

the standards accepted by the Flag States under

international law and Conventions. Regrettably

Flag States are not uniform in their determination

or ability to discharge this duty.

Safer Ships, Cleaner Seas; Report of Lord Donaldson's Inquiry

into the Prevention of Pollution from Merchant Shipping

(Donaldson Report) (emphasis added). Supp. Excerpts, at 819

par. 2.13.

Nations that ratify international agreements to prevent oil

pollution have conflicting economic incentives for implementing

or enforcing domestic legislation. See Implementation of IMO

Instruments (JA-223);, see also Non-Observance of International

Rules and Standards: Competitive Advantages, (JA-229). Many

“vessels fly the flags of whatever nation seems the most likely

to tolerate the lowest and cheaper standards.” Donaldson Report,

Supp. Excerpts, at 821 par. 2.25. “[SJhipping is still a largely

free market which allows considerable scope for shipowners,

... to... avoid compliance with internationally agreed rules

and regulations as regards safety and the protection of the marine

environment.” Flag State Implementation, JA-230 par. 2.

Many owners avoid international standards by registering

their vessels in “flag of convenience” nations. These nations

consist of flag states which do not exercise effective supervision

or regulation of their vessels “for reasons of economy or a

perverted desire to be competitive.” Donaldson Report, JA-315

par 6.24. Many flag of convenience nations, as well as other

nations, refrain from implementing any internationally

conforming standards and instead delegate this authority to

of implementing effective standards to prevent marine pollution;

classification societies “vary greatly in their quality, capacity

and dedication.” Donaldson Report, Supp. Excerpts, at 823 par.

2.33.

1. The United States Coast Guard does not practice

domestic or international uniformity or reciprocity.

Under Title 46 of the U.S. Code and the PWSA/PTSA,

Coast Guard regulations to protect the marine environment

require unilateral consideration of unique local conditions.

46 U.S.C. § 3703(c)(2)-(5). The Coast Guard must necessarily

employ non-uniform regulations from one geographic area to

another. 33 U.S.C. §§ 1223-1224. Title 46 provides that “[t}he

Secretary . . . may prescribe regulations that exceed standards

set internationally. [These rjegulations . . . are in addition to

regulations prescribed under other laws that may apply to [tank]

vessels.” 46 U.S.C. § 3703(a) (emphasis added).™

34. The U.S. will not practice reciprocity when it is in the

Nation's interest. Passage of PWSA was due in considerable respect

to Congress’ rejection of international construction and design

standards.

The domestic pressures behind the international efforts of

the United States . . . found expression in Congress’ 1972

passage of [PWSA]. It required the Coast Guard to adopt

(Cont'd)

Arguments for international uniformity are also undercut by

the Coast Guard’s implementation process. The Coast Guard

reserves and practices the right to enact regulations at variance

with treaties to which the U.S. is a party. The Coast Guard has

explicitly declared in reference to the new amendments to STCW

that “[iJn some cases, clear differences with the international

scheme are retained to preserve continuity in the U.S. licensing

system.” 62 FR 13285 (March 26, 1996) (emphasis added).*

J. The BAP regulations are not prohibited by the

Foreign Affairs Clause or the foreign affairs policy

of the United States.

Petitioners argue that the BAP regulations jeopardize the

ability of the United States to speak with one voice on the

international level and impairs U.S. credibility.°° They fail,

however, to offer legal analysis in support of the their position.

(Cont'd)

strict unilateral equipment standards by 1976 unless other

countries agreed to rules similar to those the United States

was proposing [before IMO]. The Coast Guard was also

to deny entry to any ships violating such rules.

Mitchell, R., supra at 94.

35. The U.S. argues, in part, that Title 46 U.S.C. Chapter 37

requires the Secretary to accept foreign vessel certificates of

compliance, thereby acting with reciprocity. U.S. Brief at 5.

Petitioner ignores the discretionary nature of the provision. Chapter

37 “requires” that “the Secretary may issue [a] certificate only after

the vessel has been examined and found to be in compliance with

this chapter .. . " 46 U.S.C. § 3711 (emphasis added). “This means

that the Secretary does not have to accept foreign certificates of

compliance.” /d. at Historical and Revision Notes (emphasis added).

Because of its discretionary nature, § 3711 is simply not reciprocal.

36. Graver concerns were expressed throughout the

international community over OPA’s promotion of non-uniform

liability regimes, and the very real prospect of oil tankers facing

state regimes which impose unlimited liability. De La Rue, supra,

66-68; Coney, M., The Stormy Seas of Oil Pollution Liability: Willi

Protection and Indemnity Clubs Survive?, 16 Houston J. of Int’!

(Cont'd)

A state statute with international implications is valid if it

provides no discretion for state administrative officials

“to comment on, [or] key their decisions to, the nature of foreign

relations.” Zschernig v. Miller, 389 U.S. 429, 434 (1968). State

regulations which have only an “incidental or indirect effect in

foreign countries” do not intrude on the foreign relations of the

United States. Clark v Allen, 331 U.S. 503, 517 (1947). When

police powers are exercised to prevent pollution, any impact on

international law and relations is incidental, remote, and

constitutional. Silz v Hesterberg, 211 U.S. 31, 40-41 (1908).

In order for a state regulation to frustrate U.S. foreign policy,

its application must have more than an “incidental or indirect”

effect on the foreign affairs of this country. Zschernig, at 434.

See also Clark, at 516-17; Trojan Technologies, Inc. v.

Commonwealth of Pennsylvania, 916 F.2d 903, 913 (3rd Cir.

1990), citing Zschernig (“{o)n only one occasion has the

Supreme Court struck down a statute as violative of the foreign

relations power”). Jn Re Alien Children Ed. Litigation, 501 F.

Supp. 544, 595 (S.D. Texas 1980) (“The constitutional

delegation of the authority to conduct foreign affairs . . . has

not evolved to prohibit states from enacting laws which may

affect an area of international concern”).

The BAP regulations are applied non-discriminatorily and

not based upon any particular foreign national policy. As the

Ninth Circuit aptly noted, “Intertanko fail{ed] to point to any

(Cont'd)

L. 343, 347 (1993) (“transportation of oil to the United States could

be severely disrupted .. .”); Eubank, S., Patchwork Justice: State

Unlimited Liability Laws in the Wake of the Oil Pollution Act of

1990, 18 MD. J. Int'l L. & Trade 149, 150 (1994) (“{t}he fear of

unlimited liability at the state level has generated . . . threats of trade-

based retaliation against the United States”); Wilkinson, C., et ai.,

Slick Work: An Analysis of the Oil Pollution Act of 1990, 12 J. Energy,

Nat. Resources & Envt’l L. 181, 235 (1992) (“[representatives of

the oi! transportation industry threaten to stop moving oil through

United States ports unless they receive some relief from exposure

to unlimited liability”).

evidence in the record to establish that any ‘incidental burden{ }

on interstate and foreign commerce [is] clearly excessive in

relation to the putative local benefits.’ 148 F.3d at 1069. In

addition, Petitioners can not provide any evidence that even if

the BAP regulations have an extraterritorial impact, that impact

is anything more than “incidental or indirect.” Jd.*’

K. International law authorizes the State of Washington

to enact police power regulations extraterritorially.

The BAP regulations necessarily govern a vessel before it

enters Washington internal waters. This extraterritorial policy

is authorized by international law: a vessel must be in

compliance with regulations to protect the marine environment

the moment it begins to navigate directly toward internal waters.

“In case of ships proceeding to internal waters, the coastal State

[i.e., nation] shall . . . have the right to take the necessary steps

to prevent any breach of the conditions to which admission of

those ships to those waters is subject.” UNCLOS, Art. 25(2)

(emphasis added). When a tanker navigates toward Washington's

territorial and internal waters, the BAP regulations necessarily

become implicated.

37. Petitioners rely upon Japan Line, Ltd. v. County of Los

Angeles, 441 U.S. 439 (1979) and United States v. Pink, 315 U.S.

203 (1942). These cases are distinguishable from the case at bar. In

Japan Line, the Court invalidated a local property tax on foreign-

owned shipping containers. Because of the potential for double

taxation, the Court found a manipulation of international trade for

the state’s economic benefit, a finding of economic protectionism.

There has been no offer of evidence or authority to allege that any

BAP regulation will provide any discriminatory economic trade

protection.

In Pink, the Court held that a state court's jurisdictional ruling

directly hampered U.S. recognition of a foreign government; “The

action of New York in this case amounts in substance to a rejection

of a part of the policy underlying recognition by this nation of Soviet

Russia. Such power is not accorded a State in our constitutional

system.” /d. at 233.

1. Constitutional law authorizes the BAP regulations

seaward of three nautical miles.

Oil spills are migratory. Before oil tankers which are

seaward of Washington’s territorial domain actually enter the

Strait of Juan de Fuca or the Columbia River, the economy and

environment of the State remain subject to damage from an

offshore oil spill. A state may exercise its police powers outside

of its offshore territorial jurisdiction where there is an integral

nexus between the state’s interest and the activity sought to be

regulated See Skiriotes v Florida, 313 U.S. 69 (1941). The BAP

regulations are not aimed at effecting the legality of international

vessel standards, but rather at protecting state coastal waters

and resources.

Under traditional police power analysis, the states are free

to determine where, along their coastal zones, activities will

affect their territorial waters. Skiriotes, at 76. Regulations

governing extraterritorial activities which are designed to

prevent impacts within the state are “not an extraterritorial

assertion of jurisdiction.” Laker Airways v. Sabena Belgian

World Airlines, 731 F.2d 909, 923 (D.C. Cir. 1984). The

migratory nature of oil spills provides the integral nexus

reflecting Congressional purposes and state interests in

preventing spills in the first instance.**

38. In Skiriotes, the Court ruled that a state could regulate sponge

diving by a Florida resident upon the high seas. The Court noted that

the state clearly had an interest in conservation and management of the

fishery and that, absent a conflict with federal legislation, such regulation

was within a state’s police power. /d. at 75. In Bayside Fish Flour Co. v

Gentry, 297 U.S. 422 (1936), the Court addressed the use of offshore

police powers where interstate commerce was at issue. The Bayside

Court held that both citizens and non-citizen fishermen could be subject

to state police powers where an activity occurred more than three nm.

offshore. /d. at 426. The Court held that although the state regulations

indirectly and incidentally affected interstate commerce, the “provisions

had a reasonable relation to the object of their enactment.” /d. As the

District Court noted, “[{a}lthough these cases deal with fisheries rather

than the prevention of oil pollution, the principle remains the same.”

947 F. Supp. at 1500.

Petitioners failed to provide the Ninth Circuit with any

evidence that even if the BAP regulations have an extraterritorial

impact, that the impact is anything more than “incidental or

indirect.” 148 F.3d at 1069.

CONCLUSION

The Washington BAP regulations should be sustained.

Respectfully submitted.

Jerrrey L. NEEDLE

Counsel of Record

JoHN M. MacDONALD

Law Orrices oF Jerrrey L. NEEDLE

Attorneys for Respondent-Intervenors

119 First Avenue South

Suite 200

Seattle, WA 98104

(206) 447-1560

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.