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

ELR Citation: 29 ELR 20281
Nos. 97-35010, 159 F.3d 1220/(9th Cir., 11/24/1998) Petition for reh'g denied

A judge dissents from the Ninth Circuit's decision not to rehear a case addressing the Oil Pollution Act's (OPA's) preemptive effect on Washington State's oil spill prevention regulations. The initial Ninth Circuit opinion held that the OPA did not preempt the majority of the state's oil spill regulations. The dissenting judge first argues that the original opinion placed too much weight on two preemption clauses in Title 1 of the OPA. The original opinion relied on the plain language of the preemption clause in Title I of the OPA and found that the phrase "this Act" demonstrated Congress' intent to apply the preemption clauses to the oil spill prevention measures in Title IV. Contextual clues, however, suggest that the Title I preemption clauses do not apply to the Title IV prevention provisions. Congress placed the preemption clauses in a title that addresses only liability and compensation for oil spills that actually occur. That placement suggests that Congress intended for the clauses to apply only to the provisions in that title. Moreover, a separate section in Title IV contains its own preemption clause, and sections in other titles of the OPA also include preemption provisions. There would have been little or no need for additional preemption clauses if the preemption clauses in Title I were comprehensive. Furthermore the legislative history of the OPA makes clear that Congress intended for the preemption clauses to apply only to the OPA's oil spill liability and compensation provisions.

The dissenting judge next argues that portions of the original opinion that refuse to give preemptive effect to various U.S. Coast Guard regulations are inconsistent with Ninth Circuit and U.S. Supreme Court precedent. The OPA did not deny the Coast Guard power to enact its oil spill regulations. Rather, Congress required the Coast Guard to implement a wide range of oil spill prevention rules when it passed the OPA. Because the Coast Guard acted within its authority when it enacted the regulations, those regulations can have preemptive effect, even though Congress did not expressly authorize the Coast Guard to preempt state law. And the OPA preemption clauses that allow for some state involvement do not alter that analysis.

[Prior decisions in this litigation are published at 27 ELR 20676 and 28 ELR 21397.]

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

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

Before Browning, O'Scannlain, Marquez,* and Graber, JJ.