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Preemption of Environmental Law: Is the U.S. Supreme Court Heading the Wrong Direction?

July 2000

Citation: ELR 10579

Author: Paul S. Weiland

On January 1, 1970, President Nixon signed the National Environmental Policy Act (NEPA) into law.1 The enactment of NEPA was the result of a confluence of numerous factors, and two among these were the Torrey Canyon oil spill of March 18, 1967, and the Santa Barbara oil well blowout of January 30, 1969.2 Twenty years later, on August 18, 1990, President Bush signed the Oil Pollution Act (OPA)3 into law. Like the enactment of NEPA, the enactment of the OPA was the result of a confluence of numerous factors, and one among these was the Exxon Valdez oil spill of March 24, 1989.4

Because of the sheer magnitude of damage they are able to inflict upon the natural environment, oil spills have catalyzed governments to enact multinational treaties, national laws, and state laws. Recently, in United States v. Locke,5 the U.S. Supreme Court held that national laws pertaining to maritime tanker transports created a regulatory scheme that preempted oil spill prevention regulations promulgated by Washington State.6 The opinion, written by Justice Kennedy for a unanimous Court, has ramifications that extend beyond oil spill prevention into many areas of environmental law and policy. Read narrowly, United States v. Locke signals the willingness of the Court to preempt state and local efforts to protect the environment in the absence of clear congressional intent to preempt. Read broadly, it signals the willingness of the Court to engage in its own policy analysis to determine whether preemption is applicable.

Paul S. Weiland is an associate at Goodwin, Procter & Hoar LLP. He received his J.D. from Harvard Law School; his Ph.D. in Public Policy from Indiana University, Bloomington; and his B.A. in International Relations and Political Science from the University of Southern California. He would like to thank Jared Black for his advice concerning Washington State law and Daniel Farber, Gerald Frug, Richard Lazarus, John Turner, and Marcy Weiland for comments on earlier drafts of this Dialogue. The opinions expressed in this Dialogue are those of the author and not necessarily those of any organization with which the author is affiliated.

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