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In re Bluewater Network & Ocean Advocates

ELR Citation: 31 ELR 20359
Nos. 99-1502, 234 F.3d 1305/(D.C. Cir., 12/22/2000)

The court grants environmental groups' petition for mandamus compelling the U.S. Coast Guard to promulgate regulations that establish minimum compliance standards and use requirements for tank level and pressure monitoring (TLPM) devices on oil tankers. Oil Pollution Act (OPA) §4110 required the Coast Guard to promulgate the regulations by August 18, 1991. In March 1997, the Coast Guard adopted a temporary rule, effective for two years, that established standards for TLPM devices but left open questions of installation and use of compliant devices. The rule expired two years later and the Coast Guard gave notice of completed action, stating that no further action was necessary because current technology could not create a device that met reasonable standards.

The court first holds that it has exclusive jurisdiction over the case pursuant to OPA §1017. According to OPA §1017, review of any regulation under the OPA may be had in the D.C. Circuit Court of Appeals. The U.S. Supreme Court's holding in United States v. Locke, 120 S. Ct. 1135, 30 ELR 20438 (2000), which limited OPA §1018's preemption provision to Title I of the OPA, does not limit OPA §1017 to Title I of the OPA. Locke did not limit OPA §1018 to Title I, but limited it to the type of actions described in Title I. Thus, Locke gives the court no reason to part from the natural interpretation of §1017. The court next holds that the groups' current challenge is not an untimely petition for review of the Coast Guard's completed 1997 temporary rulemaking. The groups are not challenging anything that the Coast Guard did in 1997. Nor do they challenge the Coast Guard's 1997 decision not to take certain actions or implement permanent regulations at that time. Rather the groups challenge what the Coast Guard has since failed to do, having never established permanent §4010(a) regulations and now disregarding §4110(b)'s use and installation requirements. What is at issue in this case is the absence of regulations under §4110. The OPA compels the Coast Guard to establish both compliance standards and use requirements. There are no such standards or requirements in existence, and the agency has no present intention to promulgate any. Thus, the issues that the groups raise are timely.

The court next holds that the petition for mandamus is granted because the Coast Guard failed to act in the face of a statutorily proscribed mandate. The OPA indisputably commands the Coast Guard to establish some sort of compliance standards and use requirements by August 1991. There are no such standards or requirements, and the Coast Guard has disavowed any further action. The Coast Guard cannot avoid these commands by pointing to too-stringent compliance standards that have expired. The Coast Guard does not dispute that some sort of minimum standards are possible. Thus, all factors favor granting mandamus: a nine-year delay is unreasonable given a one-year time line and the Coast Guard's admission that it will do no more; the delayed regulations implicate important environmental concerns; and the Coast Guard has shown that expedited rulemaking here will interfere with other higher priority activities. Thus, the court directs the Coast Guard to undertake prompt §4110 rulemaking.

Counsel for Petitioners
Howard M. Crystal
Meyer & Glitzenstein
1601 Connecticut Ave. NW, Ste. 450, Washington DC 20009
(202) 588-5206

Counsel for Respondents
Eileen T. McDonough
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Sentelle and Henderson, JJ.