Amicus Curiae Brief — United States v. Locke

Nos 98-1701 & 98:

IN THE OFFICE OF THE CLERK

Supreme Court of the Ren

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, NATURAL RESOURCES DEFENSE COUNCIL;

WASHINGTON ENVIRONMENTAL COUNCIL and OCEAN

ADVOCATES,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals for the Ninth Circuit

AvruM M. Gross

Susan A. Burke*

Attorneys for Amicus Curiae

Prince William Sound Regional

Citizens’ Advisory Council

424 North Franklin Street

Juneau, Alaska 99801

(907) 586-2777

* Counsel of Record

TABLE OF CONTENTS

I. Section 1018 Of Opa 90 Specifically Allows

States To Adopt Operating Standards For

Tankers In State Waters That Exceed Federal

EG S ban 04405 Se dd esa sk ae OO

I, PS ST a

B. Section 1018 Must Be Interpreted in

Light of the Impetus for the Enactment

of OPA 90 as a Whole. .............

C. A Narrow Construction of Section 1018

Conflicts with States’ Conceded

Authority to Regulate Oil Spill Response

Activities by Oil Tankers. ...........

Il. Complete Federal Preemption Of Tanker

Regulations May Jeopardize Existing

Cooperative Relationships Between States

And The Federal Government That Have

Been Successful In Reducing The Risk Of

Oil Tanker Spills In Prince William Sound.

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Page

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15

19

TABLE OF CITED AUTHORITIES

Page

Cases:

Askew v. American Waterway's Operators, 411 U.S.

32S (1973)... occasvdovensssesekseeeee 15, 16

California v. ARC American Corp., 490 U.S. 93

Ch. re ry eee 10

California v. Zook, 336 U.S. 725 (1949) ......... 16

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

(1992) . oc ccncccdsccsuteveuseuaneeen ee 9

Cooley v. Board of Wardens of the Port of

Philadelphia, 53 U.S. (12 How.) 299 (1851) ... 16, 21

Fidelity Federal Savings & Loan Association v.

De la Cuerta, 458 U.S. 141 (1982) ........... 9

Hines v. Davidowitz, 312 U.S. 52 (1941) ........ 10

Huron Portland Cement Co. v. City of Detroit,

363 U.S. 460. CUSGB). ..5 0 i icc esha eee wees 16

Kelly v. Washington, 302 U.S. 1 CHDBTD 0 vcts cece 16

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

Cited Authorities

Page

The International Association of Independent Tanker

2 che reatenteheabesbmamn

United States v. Fisher, 2 Cranch (U.S.) 358 (1804) ts

Watt v. Alaska, 451 U.S. 259 (1987) ............ 14

Statutes:

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SE UBL. GSTOSAEME) 2... c ccc ccc ccc ceeess 20

18 AAC 75.400 through 18 AAC 75.495 ........ 17

SEY WUE WSs ccccvccvcccceseseece 17

EE Goede dewscccessccccecece 17

Tek b Ge deeees es seccessicee 20

Tete deren barebvecdscesecerces 4

EMSC Cc cbacssseccbecececosces 17

Public Law 101-380 (August 18, 1990) .......... 2

iv

Cited Authorities

Page

GRA SB, 8. 0GC6. oo cicdcbdecdccesecsccccscous passim

GRA GE SGD i cccccdos seccvisonnns véveecass 21

GPR FA, BNO 60 occ dec cinndcocepcncestcscenees +

GT SD 6 be Oude Vad pe ceccséssciasiets 1]

GHA FE, GFN cv cvcccccccvcecesioucs 2, 13

OPA 90, § S002(aX2KD) ....... 2. cece cen eeees 3

GPA SO, § SERBS oc cvcccvivivenciaves 3

OPA 90, § S002(aM 2H) .... 0... cece cece cece 3

GHA FE, BFE oc ovceeccdéwidusisciwcsecs 3

GRA SO, BSR ook ccescccesvpecs tave 13

GR PE NS ecdccvacccbanbeves becnuas 14

Gn OE ED: occ cvsosccudansncevvedere 3,14

Other Authorities:

PO ED vibcsescccnesennéudeesens 5,17

FO Cae CD ne ce de cecdiaesvtuntetnc 21

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Cited Authorities

Economic, Social, and Psychological Impact

Assessment of the Exxon Valdez Oil Spill,

Prepared for Oiled Mayors Subcommittee, Alaska

Conference of Mayors (Impact Assessment, Inc.,

RT OE re ee nt Oe

Exxon Valdez Oil Spill Restoration Plan, Update on

Injured Resources and Services, at 3 (Exxon

Valdez Oil Spill Trustee Council, March 1999) .

Marine Accident Report, Grounding of the U.S.

Tankship Exxon Valdez on Bligh Reef, Prince

William Sound near Valdez, Alaska, March 24,

1989, National Transportation Safety Board,

PB90-916405, NTSB/Mar-90/09 .............

Ernest Piper, The Exxon Valdez Oil Spill, Final

Report, State of Alaska Response (Alaska

Department of Environmental Conservation

1993); Economic, Social, and Psychological

Impact Assessment of the Exxon Valdez Oil Spill,

Prepared for Oiled Mayors Subcommittee, Alaska

Conference of Mayors (Impact Assessment, Inc.,

Pe es EE 5s cecdinin aaeawéchene ave

Prince William Sound Risk Assessment, Final Report,

December 15, 1996, Executive Summary at3 ..

Page

13

21

vi

Cited Authorities

Stanley D. Rice, et al., editors, Proceedings of the

Exxon Valdez Oil Spill Symposium, held at

Anchorage, Alaska, February 2-5, 1993

(American Fisheries Society, Bethesda, Maryland

1996); Richard Townsend and Burr Heneman, The

Exxon Valdez Oil Spill: A Management Analysis

(Center for Marine Conservation 1989) .......

Richard Townsend and Burr Heneman, The Exxon

Valdez Oil Spill: A Management Analysis (Center

for Marine Conservation 1989) ..............

l

BRIEF OF AMICUS CURIAE PRINCE WILLIAM

SOUND REGIONAL CITIZENS’ ADVISORY COUNCIL

IN SUPPORT OF RESPONDENTS'

The Prince William Sound Regional Citizens’ Advisory

Council respectfully submits this brief as amicus curiae in

support of the Respondents.

INTEREST OF AMICUS CURIAE

The Prince William Sound Regional Citizens’ Advisory

Council (hereafter “RCAC”) is a non-profit corporation

organized under the laws of the State of Alaska and

incorporated on December 26, 1989. RCAC was created in

the months following the Exxon Valdez oil spill, after

representatives of Prince William Sound commercial fishing

interests approached Alyeska Pipeline Service Company’

(hereafter “Alyeska”) and persuaded Alyeska of the need

for citizer, »versight of the Valdez oil terminal and the tanker

operations within Prince William Sound. RCAC was initially

comprised of representative. from the municipalities that

were affected by the Exxon Valdez oil spill, as well as

representatives from environmental, Native, and commercial

fishing organizations.

1. This Brief was authored solely by Avrum M. Gross and

Susan A. Burke. No person or entity other than the Prince William

Sound Regional Citizens’ Advisory Council made a monetary

contribution to the preparation or submission of the Brief.

2. Alyeska Pipeline Service Company is the operator of the

Trans-Alaska Pipeline as well as the marine terminal located in

Valdez, Alaska, from which North Slope crude oil is loaded onto

tankers for transport to refineries outside of Alaska. It is a corporation

all of whose shares are held by the major oil companies producing

and shipping oil from Alaska’s North Slope.

2

On February 8, 1990, RCAC and Alyeska entered into a

contract, which will remain in effect as long as oil continues

to flow through the Trans-Alaska Pipeline System. Under

the contract Alyeska provides substantial annual funding

enabling RCAC to carry out certain contractual

responsibilities for the benefit of Alyeska and the public.

Those obligations include monitoring oil tanker operations

in Prince William Sound, providing local and regional input

into the design of mitigation measures for oil spills,

reviewing oil spill response and prevention plans and the

capabilities of the terminal and tankers to comply with those

plans, undertaking studies relating to spill prevention and

mitigation of environmental impacts of terminal and tanker

operations, and increasing public awareness of the actual and

potential environmental impacts of terminal and tanker

operations.

The existence of a Regional Citizens’ Advisory Council

for Prince William Sound was subsequently required by

federal law. Immediately after the catastrophic spill in March

1989, Congress began work on legislation aimed at

preventing such spills from occurring again. The result was

the Oil Pollution Act of 1990.’ Section 5002 of OPA 90

mandates the establishment of regional Citizens’ monitoring

groups for Prince William Sound and Cook Inlet. Section

5002 begins by outlining a number of Congressional findings,

including that “many people believe that complacency on

the part of the industry and government personnel was one

of the contributing factors of the Exxon Valdez oil spill,’

that “the present system of regulation and oversight of crude

oil terminals has degenerated into a process of continual

3. Public Law 101-380 (August 18, 1990) (hereafter “OPA 90”).

4. OPA 90, § 5002(a)(2)(B).

3

mistrust and confrontation,”* that “a mechanism should be

established which fosters the long-term partnership of

industry, government, and local communities in overseeing

compliance with environmental concerns in the operation

of crude oil terminals,”* and that “only when local citizens

are involved in the process will the trust develop that is

necessary to change the present system from confrontation

to consensus.”’ Section 5002(d) then establishes a Regional

Citizens’ Advisory Council for Prince William Sound.

Section 5002(0) provides that in lieu of the Council

established under Section 5002(d), an alternative voluntary

advisory council may perform the functions of the Prince

William Sound citizens’ oversight program if Alyeska

provides a minimum level of funding under a contract with

a citizens’ advisory committee for the duration of the

operation of the Trans-Alaska Pipeline System and if the

President annually certifies that the citizens’ advisory

committee “fosters the general goals and purposes of this

section and is broadly representative of the communities and

interests in the vicinity of the terminal facilities and Prince

William Sound.” Each year since the enactment of OPA 90,

RCAC has been certified as the alternative voluntary advisory

group to fulfill the citizens’ oversight and monitoring duties

established in OPA 90.*

5. OPA 90, § 5002(a)(2)(G).

6. OPA 90, § 5002(a)(2)(D).

7. OPA 90, § 5002(a)(2)(H).

8. RCAC’s current membership consists of two classes —

voting members and ex-officio, non-voting members. Its voting

members are representatives nominated by the following

(Cont'd)

4

Since its formation in 1989 and during its nearly 10 years

as the official OPA 90 citizens’ monitoring group for Prince

William Sound, RCAC has been a leader in the area of tanker

monitoring and oil spill prevention. RCAC closely monitors

the operations of the Alyeska oil terminal in Valdez as well as

the operations of tankers while in transit through Prince William

Sound and while berthed at the Alyeska terminal. RCAC has

been actively involved in reviewing and commenting on the oil

spill contingency plans prepares by both Alyeska, as operator

of the Valdez terminal, and the tankers that transit Prince

William Sound.’ It has also conducted major studies relating to

(Cont'd)

organizations and municipal governments: The Alaska State

Chamber of Commerce, Cordova District Fishermen United,

Chugach Alaska Corporation, City of Cordova, City of Homer, City

of Kodiak, City of Seldovia, City of Seward, City of Valdez, City

of Whittier, Kenai Peninsula Borough, Kodiak Village Mayors

Association, Kodiak Island Borough, Prince William Sound

Aquaculture Corporation, Community of Chenega, Community of

Tatitlek, Alaska Wilderness Recreation and Tourism Association,

and the Oil Spill Region Environmental Coalition. The following

organizations have designated an individual to act as an ex-officio,

non-voting member of RCAC: The United States Environmental

Protection Agency, the United States Coast Guard, the United States

National Oceanic and Atmospheric Administration, the United States

Forest Service, the United States Department of the Interior, the

Alaska Department of Environmental Conservation, the Alaska

Department of Fish and Game, the Alaska Department of Natural

Resources, and the Division of Emergency Services (Alaska

Department of Military and Veterans Affairs), and the Prince

William Sound Science Center (including the Oil Spill Recovery

Institute established in Section 5001 of OPA 90).

9. Alaska Statutes (“AS”) section 46.04.030 prohibits a person

from operating an oil terminal facility, a pipeline, an exploration

(Cont'd)

5

tanker operations in Prince William Sound. In 1993 and 1994,

for instance, RCAC participated in a two part Prince William

Sound Disabled Tanker Towing Study, along with

representatives of the Prince William Sound Tanker Association,

Alyeska, the Alaska Department of Environmental Conservation

and the United States Coast Guard. This study evaluated existing

equipment, personnel and procedures for emergency towing of

oil tankers in Prince William Sound. The study included the

use of computer simulations to assess the capability of existing

escort vessels and to examine alternatives that could enhance

escort and rescue towing capabilities in a “worst case failure

scenario.” More recently, RCAC participated in a 1996 study,

along with representatives of the Prince William Sound oil

shippers, the Alaska Department of Environmental

Conservation, and the Coast Guard, to assess the risks associated

with oil transportation in Prince William Sound. The Prince

William Sound Risk Assessment Project, with a total price tag

of over $2,000,000, identified and evaluated the risks under

current and proposed risk reduction measures, and developed

statistical models by which the efficacy of future risk reduction

measures can be evaluated.'°

(Cont'd)

facility, a production facility or a tank vessel or barge within the

State unless the person has an oil discharge prevention and

contingency plan that has been approved by the Department of

Environmental Conservation and the person is in compliance with

the plan. The plans must set out in detail the actions that will be

taken in the event of a spill, the equipment that will be used, and

where that equipment will be located. Contingency plans are also

required under federal law. See 33 U.S.C. § 1321(j) and 33 C.F.R.

§ 155.1010.

10. In addition to these major studies involving tanker

operations, RCAC has also conducted a number of other scientific

(Cont'd)

6

RCAC does not appear here simply to bear first person

witness to the horrors of a catastrophic spill such as the Exxon

Valdez spill of March 24, 1989. Those horrors have been

adequately catalogued elsewhere.'' RCAC is here because it

(Cont'd)

studies, both on its own and in conjunction with other organizations,

on a wide variety of topics relating to oil spill response and prevention.

For example, RCAC has studied the environmental impacts of Alyeska’s

ballast water treatment facility as well as the impact of oil vapors

released into the atmosphere during tanker loading; it has conducted

studies of the incidence and trajectory of icebergs in the tanker lanes in

and out of Prince William Sound; it annually samples the sediments of

Prince William Sound for the presence of hydrocarbons; it has sponsored

symposiums dealing with prevention of, and response to, fire hazards

on tankers in transit through Prince William Sound and at the Valdez

terminal loading berths; it is currently involved in research, in

conjunction with the Smithsonian Environmental Research Center, to

determine whether aquatic nuisance species (non-indigenous species)

are arriving in Prince William Sound via tanker ballast water in order

to avoid the type of problems that have occurred in the Great Lakes

and San Francisco Bay; and it has prepared planning materials for local

communities to deal with the social upheavals that a catastrophic oil

spill inevitably brings.

11. The enormous environmental, economic and social impacts

of the Exxon Valdez spill have been documented in a host of

publications. See, for example, Stanley D. Rice, et al., editors,

Proceedings of the Exxon Valdez Oil Spill Symposium, held at

Anchorage, Alaska, February 2-5, 1993 (American Fisheries Society,

Bethesda, Maryland 1996); Richard Townsend and Burr Heneman, The

Exxon Valdez Oil Spill: A Management Analysis (Center for Marine

Conservation 1989); Ernest Piper, The Exxon Valdez Oil Spill, Final

Report, State of Alaska Response (Alaska Department of Environmental

Conservation 1993); Economic, Social, and Psychological Impact

Assessment of the Exxon Valdez Oil Spill, Prepared for Oiled Mayors

Subcommittee, Alaska Conference of Mayors (Impact Assessment, Inc.,

November 15, 1990). P

(Cont'd)

7

believes the Court’s decision in this case will have a major

impact on the degree to which similar spills can be prevented

in the future. The case calls into question the authority of

State governments, including the State of Alaska, to adopt

local rules governing certain aspects of oil tanker operations

within their jurisdictions. Petitioner Intertanko argues that

States may not adopt rules that affect tanker operations in

any manner whatsoever if there is a federal statute or

regulation that deals with the same subject matter. The

sweeping concept of federal preemption that Intertanko urges

this Court to adopt would invalidate nearly all types of State

regulation of local tanker operations, regardless of whether

the State rules are identical to the federal standards, whether

the State rules deal with matters that are primarily of local

concern, and whether State rules that impose additional

requirements are compatible with the federal standards. The

Respondents argue that there is no conflict here between State

and federal authority and that applicable federal law must

be read as authorizing the exercise of State police power to

insure the safety of the coastal environment.

(Cont'd)

Even after ten years, Prince William Sound has yet to recover

fully from the Exxon Valdez oil spill. In a March 1999 publication, the

Exxon Valdez Oil Spill Trustee Council reported that of the various

injured resources, only bald eagles and river otters had fully recovered.

Other species, including black oystercatchers, clams, Pacific herring,

mussels, marbled murrelets, pink salmon, sockeye salmon, and sea otters

were still “recovering.” Listed as “not recovering” were killer whales,

harbor seals, harlequin ducks, pigeon guillemots, and cormorants. Also

listed as not fully recovered were recreation and tourism uses in Prince

William Sound, Alaska Native subsistence resources, commercial

fishing, and passive uses. Exxon Valdez Oil Spill Restoration Plan,

Update on Injured Resources and Services, at 3 (Exxon Valdez Oil

Spill Trustee Council, March 1999).

Because of its unique position as a citizens’ monitoring

organization, RCAC brings to this discussion the outlook of

the residents of Alaska who have seen first hand the

consequences of a major oil spill. RCAC believes that the

United States Congress, in enacting OPA 90, shared RCAC’s

concern that it was not enough to have only the federal

government regulating oil tanker operations. Congress

intended that State governments, with specific local

knowledge of coastal marine environments, were to play a

significant and substantive role in the exercise of their police

power in order to supplement federal regulation of tanker

operations. So long as the State rules are not in actual conflict

with federal requirements, there is no reason for States to be

precluded from adopting and enforcing those rules.

SUMMARY OF ARGUMENT

Preemption of State authority to adopt regulations

relating to the operation of tankers in State waters depends

on Congressional intent. Section 1018 of OPA 90 specifically

disclaims any intent to preempt the power of States to impose

additional requirements “with respect to” or “relating to”

the discharge of oil. This disclaimer should be construed

broadly so as to allow State regulation of oil tanker operations

for several reasons. First, a broad construction of the

disclaimer is consistent with the impetus that gave rise to

OPA 90 in the first place — the inadequacy of federal

regulatory efforts in Prince William Sound that contributed

in part to the Exxon Valdez oil spill. Additional participation

by States and citizen groups like RCAC was encouraged,

not prohibited by OPA 90. Second, the line that Petitioner

Intertanko seeks to draw between valid State authority to

regulate the efforts of oil tankers to clean up after a spill and

invalid State authority to regulate tanker operations to

9

prevent spills is illusory. Since Section 1018 of OPA 90

clearly allows States to adopt regulations affecting the

operations of tankers in the area of spill response, that Section

by implication must also allow State regulation of integrally

related oil tanker operations for the purpose of preventing

spills, so long as the State regulations are not in actual

conflict with analogous federal laws. Finally, Congressional

intent should not be implied here to preempt State regulation,

because total preemption will disrupt a successful partnership

between the United States Coast Guard and State authorities

that has developed since the Exxon Valdez oil spill and that

has led to safer transportation of oil throughout the coastal

waters of the United States.

ARGUMENT

I.

SECTION 1018 OF OPA 90 SPECIFICALLY ALLOWS

STATES TO ADOPT OPERATING STANDARDS FOR

TANKERS IN STATE WATERS THAT EXCEED

FEDERAL STANDARDS.

A. Introduction

All parties in this case recognize that the federal

government has the authority to preempt State regulation of

particular matters by expressly forbidding State action.

Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).

Preemption may also occur when the Congress acts to so

occupy a field with federal legislation “as to make reasonable

the inference that Congress left no room for the States to

supplement it.” Fidelity Federal Savings & Loan Association

v. De la Cuerta, 458 U.S. 141, 153 (1982) (quoting Rice v.

10

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

preemption can occur when “compliance with both state and

federal law is impossible or when the state law ‘stands as an

obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.’ ” California v. ARC

American Corp., 490 U.S. 93, 100-01 (1989) (quoting Hines v.

Davidowitz, 312 U.S. 52, 67 (1941)).

All of these preemption principles ultimately depend on

the intent of Congress. The parties and amici curiae here have

focused on Congressional intent and have attempted to

demonstrate its existence or lack of it from a variety of sources.

A basic element in all of those discussions is just how this Court

should interpret OPA 90, and specifically, Section 1018 of that

Act, which provides:

(a) PRESERVATION OF STATE AUTHORITIES . . . 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. . .

(c) ADDITIONAL REQUIREMENTS AND LIABILITIES;

Penacties. Nothing in this Act, or the Act of March

3, 1851... 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 (whether criminal or civil in

nature) for any violation of law;

relating to the discharge or substantial threat of a

discharge, of oil.

Intertanko argues that both the placement of this disclaimer

in Title | of OPA 90 and certain legislative history surrounding

the passage of OPA 90 suggest that Congress intended a narrow

reading of this disclaimer — one that pertains only to State

response to an actual spili, and to liability and damages for an

actual or threatened spill. The Ninth Circuit Court of Appeals

looked at the clear language of the provision and adopted a

much broader interpretation, one that allows States to adopt oil

spill prevention regulations pertaining to the operation of vessels

in State waters that exceed federal requirements. '”

The basic principles of federal preemption were discussed

at length in the decision below and will be adequately presented

by the parties to this case. RCAC can add little to that general

discussion. RCAC, as the citizens’ monitoring organization

mandated by Section 5002 of OPA 90, can, however, provide

some specific insights into that Act that have relevance to the

interpretive issue before the Court. The first pertains to the

atmosphere that surrounded the passage of OPA 90; the second

relates to the internal consistency of the Act. Both bear on the

interpretation of OPA 90 and specifically on the scope of the

disclaimer ir Section 1018 of the Act, which all parties recognize

play a key role in determining Congressional intent in this case.

12. The International Association of Independent Tanker

Owners (Intertanko) v. Locke, 148 F.3d 1053 (9th Cir. 1998).

12

B. Section 1018 Must Be Interpreted in Light of the

Impetus for the Enactment of OPA 90 as a Whole.

OPA 90 had its genesis in the most catastrophic oil spill

in the nation’s history — one that devastated the pristine

marine environment of Prince William Sound, a major

fishing ground and tourism destination. The spill was caused

not only by errors and omissions by the Exxon Valdez master

and crew, but also from a nearly complete failure by federal

authorities, principally the Coast Guard, to fulfill existing

statutory responsibilities. For instance, the National

Transportation Safety Board’s inquiry into the Exxon Valdez

spill concluded that:

The Coast Guard was not maintaining an effective

VTS [Vessel Traffic System] in Prince William

Sound at the time of the EXXON VALDEZ

grounding.

The board went on to note:

... [T]he VTC [Vessel Traffic Control)

watchstander had ample time to call the vessel to

ascertain the intentions of the navigation watch.

Any inquiry from the VTC regarding the vessel’s

intentions probably would have alerted the third

mate to turn earlier or to use more rudder. A

subsequent follow-up inquiry from the VTC

would surely have alerted him to the fact that his

vessel could be standing into danger and that a

sharp right turn back toward the traffic lanes was

needed. Any action by the third mate to turn

13

earlier or to use more rudder could have been

sufficient to steer the vessel clear of Bligh Reef."

The Regional Citizens’ Advisory Councils were

established by Congress for the specific purpose of

combatting what “many people” thought was “complacency”

on the part of the government and industry in monitoring

tanker activities.'* The councils established in OPA 90 are

charged with duties specifically related to crude oil tanker

operations. For example, the councils’ functions include

recommending “site specific regulations intended to

minimize the impact of . . . crude oil tankers’ operations,”

suggesting “modifications of crude oil tanker operations and

maintenance in Prince William Sound and Cook Inlet

intended to minimize the risk and mitigate the impact of oil

spills,” and suggesting modifications to “oil spill prevention

and contingency plans ... for crude oil tankers in Prince

William Sound and Cook Inlet intended to prevent and

respond to an oil spill.”'* These duties were obviously not

imposed on the citizens’ councils established in OPA 90 as

a reflection of Congress’s satisfaction with the job that

federal agencies had previously done in monitoring and

controlling tanker operations in Prince William Sound. They

were imposed because federal regulation, in and by itself,

had failed in its most basic purpose — to prevent a spill.

Congress sought not to protect federal authority in OPA 90

13. Marine Accident Report, Grounding of the U.S. Tankship

Exxon Valdez on Bligh Reef. Prince William Sound near Valdez,

Alaska, March 24, 1989, National Transportation Safety Board,

PB90-916405, NTSB/Mar-90/09, at page 153.

14. OPA 90, § 5002(a)(2)(B).

15. OPA 90, § 5002(d)(6)(F).

14

so much as to insure that there were other bodies in addition

to federal regulatory agencies that would play some role in

this crucial area. It is consistent with that Congressional

intent that States, which have particular local concerns, play

a major role as well.'®

It is an established principle of legislative interpretation

that in ascertaining the intent of Congress, this Court will

look to all the circumstances that surround the passage of an

act.'’? Had OPA 90 been enacted to insure the exclusivity of

federal regulation — to insulate it from other voices because

the effectiveness of federal regulation had been or would be

jeopardized by additional State’s regulation — Intertanko’s

argument for a narrow construction of Section 1018 might

16. Additional evidence of Congressional intent to involve local

authorities is found in Section 5002(e) of OPA 90, which establishes

an Oil Terminal Facilities and Oil Tanker Operations Association,

composed of one member designed by oil tanker operators, one by

the terminal facility, one by the federal government, and one by the

State of Alaska. The purpose of the Association is “to provide a

forum” to “discuss and make recommendations governing all

permits, plans, and site specific regulations governing the activities

and actions of the terminal facilities ... and cf crude oil tankers

calling at those facilities.” An Association for Prince William Sound

has never been formed, as it is not required when a voluntary

alternative citizens’ advisory council has been certified under Section

§002(0). But the structure of the Association is, again, clear evidence

of Congressional intent to include the State of Alaska in oil tanker

regulation.

17. “Where the mind labors to discover the design of the

legislature, it seizes everything from which aid can be derived.”

United States v. Fisher, 2 Cranch (U.S.) 358, 386 (1804); and

see Watt v. Alaska, 451 U.S. 259, 270 (1987), where this Court in

interpreting ambiguous legislation discussed the political “impetus”

for the proposal before the Congress.

15

make some sense. In fact, the disclaimer was adopted under

circumstances that demonstrated that exclusive federal

regulation had proven ineffective. The terms of the disclaimer

should be interpreted in that light — to allow those other

voices with more urgent and particularized local concerns

to be heard, not stifled.

C. A Narrow Construction of Section 1018 Conflicts with

States’ Conceded Authority to Regulate Oil Spill

Response Activities by Oil Tankers.

Section 1018 of OPA 90 specifically authorizes States

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

the discharge of oil.” Intertanko concedes, as does the United

States Coast Guard, that this section of law specifically

authorizes the States to adopt measures dealing with the

response to an oil spill."* In Intertanko’s view, while States

may not in any way impose restrictions on tankers that might

prevent a spill in State waters, they may impose planning

requirements on tankers that will insure that the tankers have

the capacity to clean up any oil they spill. Intertanko

apparently recognizes that this Court views that kind of

authority as part of the traditional power of States to adopt

18. In its Brief on the Merits, Intertanko cites a Coast Guard

legal opinion that is “consistent with the positions of Intertanko and

the United States.” The opinion, as described by Intertanko, “asserts

that the States . . . may regulate ... response.” Intertanko Brief on

the Merits at 36 n.26. The Petitioners’ position on this point is also

consistent with a prior decision of this Court that upheld States’

authority to require tankers to maintain containment equipment “in

the absence of any fatal conflict between the [State and federal]

statutory schemes.” Askew v. American Waterway's Operators,

411 U.S. 325, 337 (1973).

16

local pollution control measures.'* Intertanko nonetheless

argues that any effort by States to regulate the “primary

conduct” of the vessel, as opposed to peripheral issues such

as penalties and liabilities, is barred. As Intertanko sees it,

Congress has never authorized “a joint or concurrent role

for states and local governments in matters relating to

standards and requirements affecting the on-board primary

conduct of tank vessels or their crews.””° The problem here

is that what Intertanko sees as a clear line of demarcation

between valid State requirements imposed on tankers to clean

up a spill and invalid State requirements on tankers to prevent

the spill in the first place simply does not exist. In both cases,

the State requirements will affect tanker personnel and

operations, yet Intertanko argues preemption in one area and

concedes State authority in the other — a distinction that

makes no sense. Since Congress clearly intended for States

to have authority to require tanker operators to respond to a

spill, it necessarily follows that Congress never intended to

preempt State efforts to reach the operations and on-board

conduct of tankers with regard to oil spill prevention.

19. See, e.g., Cooley v. Board of Wardens of the Port of

Philadelphia, 53 U.S. (12 How.) 299 (1851) (local pilotage

requirement upheld); Kelly v. Washington, 302 U.S. | (1937)

(supplemental state safety regulations relating to motor driven

tugboats upheld); Huron Portland Cement Co. v. City of Detroit,

362 U.S. 440 (1960) (municipal regulation of smoke pollution from

vessels upheld). State regulatory regimes that are identical to federal

ones have also been upheld against challenges that federal law has

preempted State action. California v. Zook, 336 U.S. 725 (1949).

And see, Askew v. American Waterways Operators, Inc., 411 U.S.

325 (1973) (State law requiring tankers to carry certain oil spill

response equipment not preempted).

20. Intertanko Brief on the Merits, at 11.

17

The complete interrelationship between prevention and

response can be quickly seen by a brief review of the kinds

of regulations concerning responses that have been adopted

by the State of Alaska. Like the fede:.al government, the State

has adopted statutes and regulations requiring every owner

and operator of an oil tanker within the State to have and to

comply with an approved oil discharge contingency plan.?!

Some of the Alaska requirements relate to oil spill

prevention, but some are confined to response, which the

United States and Intertanko concede are not preempted by

federal law. Many of the response requirements involve some

kind of “on board” conduct on the part of the tanker crew.

For example, the State of Alaska requires tankers to have

access to sufficient lightering equipment and personnel to

transfer all oil remaining in damaged cargo tanks and in

undamaged tanks if there is a risk of discharge from those

tanks.” This transfer will inevitably require the assistance

of the tanker’s c.ew to accomplish. The same would be true

of a State regulation requiring that a vessel discharging oil

in State waters must immediately contain the discharge by

containment boom or other effective means.” The tanker’s

crew would be required to deploy the boom, and the State’s

containment requirement regulation would be meaningless

21. See AS 46.04.030(c) and Alaska Administrative Code

sections 18 AAC 75.400 through 18 AAC 75.495. See 33 U.S.C.

§ 1321G) and 33 C.F.R. § 155.1010 for federal contingency plan

requirements for tankers.

22. See 18 AAC 75.445(d)(6).

23. 18 AAC 75.445(d)(4), for example, requires tanker owners

and operators to demonstrate that “sufficient oil discharge response

equipment, personnel, and other resources are maintained and

available for the specific purposes of preventing discharged oil from

entering an environmentally sensitive area . . .”

18

if the State could not also require the tanker to carry and

maintain the containment gear. If Intertanko’s theory is

correct, it will mean that States will have the impossible task

of sorting out which response regulations affect tanker

operations and “on-board” crew conduct and which do not.

The difficulty of differentiating between the two will lead

either to extensive state and federal litigation, or worse, to

paralysis on the part of the States to adopt and enforce

entirely valid response requirements, for fear of trespassing

on what Petitioners claim is the exclusive territory of federal

regulation.

All of this conflict and confusion disappears if Section

1018 of OPA 90 receives a broad and literal interpretation,

instead of the narrow one proposed by Intertanko. Traditional

State activities in the oil spill recovery and response arena

will continue, free of the risk of being nullified by a new

and overly broad theory of federal preemption. States have

always been free to protect their marine environments and

OPA 90 confirms that authority — both for oil spill

prevention measures and for spill response requirements.

Equally important, the lack of any clear line between State

regulation of tanker operations for spill response purposes,

as opposed to prevention, strongly suggests that Congress

intended the disclaimer provisions of Section 1018 of OPA

90 to apply to both spheres of State regulation.

19

COMPLETE FEDERAL PREEMPTION OF TANKER

REGULATIONS MAY JEOPARDIZE EXISTING

COOPERATIVE RELATIONSHIPS BETWEEN STATES

AND THE FEDERAL GOVERNMENT THAT HAVE

BEEN SUCCESSFUL IN REDUCING THE RISK OF OIL

TANKER SPILLS IN PRINCE WILLIAM SOUND.

The Coast Guard in recent years has recognized the State

of Alaska as a valuable partner in cooperative efforts to

prevent oil spills. Since the Exxon Valdez spill, the State of

Alaska has been fortunate in achieving a high level of

cooperation and consultation with local Coast Guard officials

having jurisdiction and authority over tanker operations in

Prince William Sound. This cooperation has resulted in

tanker operation rules for Prince William Sound that have

reflected local knowledge and concerns and that have

significantly reduced the risks of tanker spills in the Sound.

By way of example, Alyeska, as operator of the terminal,

recently revised its Vessel Escort and Response Plan for

Prince William Sound (“PWS VERP”). The plan, approved

by the Coast Guard, was the result of a collaborative effort

among the Coast Guard, RCAC, the Alaska Department of

Environmental Conservation, tanker owners and operators,

and Alyeska’s Ship Escort Response Vessel System

(“SERVS”). Included in this comprehensive port specific

plan for tanker operations in Prince William Sound are

detailed procedures for the use of escort vessels, speed

restrictions for both ballasted and oil laden tankers at various

locations in the Sound, closure rules for high winds and high

seas, Communications requirements, requirements for

20

pre-escort conferences, and navigation guidelines in the

presence of ice.”*

It is not unwarranted to assume that the Coast Guard’s

willingness to involve State officials in its regulatory efforts

(such as the development and approval of the Prince William

Sound VERP) is in large part a result of the Coast Guard’s

recognition that the State of Alaska exercises concurrent

authority over a number of areas covered in the PWS VERP.

A ruling from this Court that the State of Alaska is wholly

without that authority might well undermine the Coast Guard’s

continued willingness to accept the active involvement of the

State in its own regulatory efforts. History is replete with

instances where those with power and responsibility have

refused to share that authority unless compelled to do so.

If cooperation breaks down, however, it bodes ill for the future,

for on the horizon are other significant problems that clearly

would benefit from the cooperative efforts that have existed

since the enactment of OPA 90. One of the paramount future

concerns in the area of tanker operations, for instance, relates

to the imminent advent of double hulled tankers in the Prince

William Sound tanker fleet.** Current federal law and regulation

24. The plan also requires, among other things, that “deck officers

and crew must be familiar with the component parts of the towing

package and the method of deployment.” The plan goes on to require

tankers to carry the “Prince William Sound Towing Package,” which

is identical to the towing package defined in Alaska regulations for use

by vessels berthed at the Valdez terminal. See 18 AAC 990(96). The

manual goes on to provide that “[e]quivalent towing gear may be

substituted with the concurrence of the Alaska Department of

Environmental Conservation and SERVS.” PWS VERP (reprinted

September 1998) at 7-3.

25. 46 U.S.C. § 3703a(c)(4), adopted in OPA 90 provides, “Except

as provided in subsection (b) of this section ... a vessel that has a

single hull may not operate after January 1, 2010.”

21

require a minimum of two escort vessels for single hulled

tankers.” At present there is no federal law requiring escort

vessels for double hulled tankers. While double hulled

tankers will provide added protection from oil spills, these

tankers are not totally invulnerable to having both hulls

pierced, particularly in a powered grounding or collision.

The Prince William Sound Risk Assessment Project,

mentioned above, concluded that, “The single most effective

risk reduction measure to date has been the current escort

system which effectively reduces potential oil outflows due

to groundings.””’ Based on past collaborative efforts, RCAC

has every reason to believe that if the Coast Guard addresses

the issue of escort vessels for double hulled tankers in Prince

William Sound, it will listen to RCAC’s and the State of

Alaska’s concerns and mutually acceptable and wholly

consistent State and federal rules will be developed. The

Coast Guard will do so, in part at least, because the State of

Alaska has the authority to address the issue on its own,

should the Coast Guard fail to act. Certainly, vessel escort

requirements, based on particular local port hazards, would

be no more an intrusion into federal regulation of vessel

operations, and would be no more an obstacle to national

uniformity, than are clearly valid State pilotage requirements,

which have previously been upheld by this Court.”*

Intertanko’s position would lead to States being barred

entirely from this area of regulation and potentially to a

breakdown of federal-state cooperation in this area.

26. OPA 90, § 4116; 33 C.F.R. §§ 168.01(a) and 168.40.

27. Prince William Sound Risk Assessment, Final Report,

December 15, 1996, Executive Summary at 3.

28. Cooley, supra and see Ray v. Atlantic Richfield Co.,

435 U.S. 151 (1978).

22

CONCLUSION

RCAC respectfully requests the Court to uphold the right

of the State of Washington and other coastal states to adopt

and enforce non-discriminatory regulations relating to both

oil spill prevention and response capabilities of oil tankers,

so long as the regulations are not in actual conflict with

federal law.

Respectfully submitted,

AvruM M. Gross

Susan A. BurKe*

Attorneys for Amicus Curiae

Prince William Sound Regional

Citizens’ Advisory Council

424 North Franklin Street

Juneau, Alaska 99801

(907) 586-2777

* Counsel of Record