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International Ass'n of Indep. Tanker Owners v. Locke

ELR Citation: 28 ELR 21397
Nos. 97-35010, 148 F.3d 1053/46 ERC 1956/(9th Cir., 06/18/1998, 08/31/1998) Aff'd in part, rev'd in part & remanded

The court holds that 15 of Washington State's 16 best achievable protection (BAP) oil spill prevention regulations are not preempted by federal law. The court first holds that the BAP regulations are not preempted by the Oil Pollution Act (OPA). OPA §1018 provides that nothing in the OPA preempts states from imposing any requirements with respect to the discharge of oil, and the oil spill prevention requirements in the BAP regulations clearly respect the discharge of oil. The court next holds that the BAP regulations are not preempted on the ground that they frustrate Congress' purposes and objectives in enacting the OPA, the Ports and Waterways Safety Act (PWSA), the Port and Tanker Safety Act, or the Tanker Safety Act. OPA §1018 demonstrates Congress' willingness to permit state efforts in the areas of oil spill prevention, removal, liability, and compensation. Likewise, the court holds that the BAP regulations are not preempted because of conflict with various international treaties. Strict international uniformity with respect to the regulation of tankers is not mandated by federal law and international agreements only set minimum standards.

The court next holds that because 15 of the BAP regulations do not qualify as design and construction requirements they are not automatically subject to field preemption under Ray v. Atlantic Richfield Co., 435 U.S. 151, 8 ELR 20255 (1978). Under Ray, state oil tanker design and construction requirements are impliedly preempted by Title II of the PWSA. Virtually all of the challenged BAP regulations impose operational requirements rather than design and construction requirements. However, the court holds that the BAP regulation that requires tankers to possess global positioning system receivers, two radar systems, and emergency towing packages is preempted by the PWSA. Regardless of whether radar and other navigational systems should be considered equipment necessary for vessel operating procedures, the court is bound by Ray's classification of these devices as design requirements and by its conclusion that, as such, they are impliedly preempted by the PWSA. In addition, the court rejects the state's argument that the emergency towing package is only an equipment installation requirement because the BAP regulation requires the towing equipment to meet several specific design requirements.

The court then holds that the BAP regulations are not expressly preempted by U.S. Coast Guard oil spill prevention regulations. When it passed the OPA, Congress did not authorize the Coast Guard to preempt state law. The court also holds that the BAP regulations do not violate the federal Commerce Clause. Last, the court holds that the BAP regulations do not infringe on U.S. foreign affairs powers.

Counsel for Plaintiff
Douglas Letter
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Jerri Thomas, Ass't Attorney General
Attorney General's Office
905 Plum St., Bldg, 3, Olympia WA 98504
(360) 459-3620/753-6200

Before Browning and Marquez,* JJ.