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7 ELR 20071 | Environmental Law Reporter | copyright © 1977 | All rights reserved Atlantic Richfield Company v. EvansNo. C75-648M (D. Wash. September 23, 1976)A three-judge district court declares the State of Washington's Tanker Law, which regulates oil tanker navigation in Puget Sound, to be preempted by the federal Ports and Waterways Safety Act (PWSA). The court initially declines to hold that the Eleventh Amendment confers sovereign immunity on the state in this instance. The PWSA establishes a comprehensive federal scheme for regulating the operations and design specifications of tankers that foreclose balkanized regulatory authority over these matters. Similarly, the state law's requirement of tugboat escorts is preempted by the Coast Guard's authority to require tugboat escorts in Puget Sound in the event of hazardous conditions. Also, the state statute's prohibition of tanker navigation of Puget Sound without a local pilot conflicts with the PWSA. The state incorrectly argues that its law is part of a congressional-encouraged coastal zone management plan, because such plans are authorized by statutes which, unlike the PWSA, encourage a scheme of cooperative federalism. Finally, Commerce Department approval of the state's coastal plan has no bearing on the PWSA's preemptive effect. For moving papers in this case, see ELR 65297. Counsel for Plaintiff David E. Wagoner Counsel for Defendant Counsel for Intervenors Eldon V. C. Greenberg Goodwin, C.J., McGovern & East, JJ. Per curiam: Atlantic Richfield Company (Arco) and Seatrain Lines, Inc., sued named officials of the State of Washington to enjoin enforcement of a 1975 Washington law regulating oil tankers operating in the Puget Sound. Jurisdiction is conferred by 28 U.S.C. §§ 1331 and 1337, and this three-judge court was convened in accordance with 28 U.S.C. §§ 2281, 2284.1 At the outset, the State of Washington challenges our jurisdiction, asserting sovereign immunity under the Eleventh Amendment. Aware of the rule in Ex parte Young, 209 U.S. 123 (1908), the State invites us to "overrule" it, or at least to restrict the scope of cases falling within the Young "exception" to the Eleventh Amendment. The invitation is attractively and persuasively argued, but we decline it. The Supreme Court, if it chooses to do so,2 will have ample opportunity to reconsider Young. The challenged statutes are found in Chapter 125, Laws of Washington, 1975, 1st Extra Sess., codified at R.C.W. §§ 88.16.170 et seq. (The Tanker Law). The Tanker Law regulates oil tankers operating in Puget Sound.3 Section 2 of the Tanker Law requires any tanker in excess of 50,000 deadweight tons (dwt) to employ a locally licensed pilot. Section 3(1) absolutely prohibits "supertankers," that is, those larger than 125,000 dwt. And § 3(2) prescribes some minimum design specifications (shaft horsepower, twin screws, double bottoms, and twin radars) for tankers between 40,000 and 125,000 dwt. A proviso in § 3(2) waives these design specifications for tankers accompanied by an appropriate complement of tugboats. Arco and Seatrain contend that the state's restrictions are preempted by federal regulation in the field, are violative of the commerce clause, and invade the foreign affairs powers of the United States. We are persuaded that federal law has preempted the field. Title I of the Ports and Waterways Safety Act of 1972 (the PWSA), 33 U.S.C. §§ 1221 et seq., establishes a comprehensive federal scheme for regulating the operations, traffic routes, pilotage, and safety design specifications of tankers. Under the PWSA, the Coast Guard can create traffic-control systems for Puget Sound, and it has done so. 33 C.F.R. pt. 161, subpt. B. The PWSA gives the Coast Guard authority to restrict and even exclude tankers from Puget Sound under adverse or hazardous conditions. 33 U.S.C. § 1221(3)(iv). Title II of the PWSA amended the Tank Vessel Act of 1936, 46 U.S.C. § 391a. It empowered the Coast Guard to regulate design, construction, and maintenance of tankers operating in United States waters. See proposed regulations, 41 Fed. Reg. 15859 (Apr. 15, 1976). The purpose of the original Tank Vessel Act, and of Title II of PWSA, was to establish a uniform set of regulations governing the types of ships permitted within the coastal waters of the United States and the conditions under which they would be permitted to operate. Balkanization of regulatory authority over this most interstate, even international, of transportation systems is foreclosed by the national policy embodied in the PWSA. The PWSA has preempted § 3(2) of Washington's Tanker Law. Washington asserts that the minimum design specifications required by § 3(2) of the Tanker Law were not preempted, because they can be avoided if the tanker has a tugboat escort. Congress has given the Coast Guard authority to require tugboat escorts in Puget [7 ELR 20072] Sound under hazardous conditions. 33 U.S.C. § 1221(3)(iv). And the Coast Guard has considered doing this. Department of Transportation, Coast Guard, Final Environmental Impact Statement [on the] Regulations for Tank Vessels Engaged in the Carriage of Oil in Domestic Trade 71 (Aug. 15, 1975). We believe that the tugboat-escort provision of the Tanker Law has also been preempted by the federal law. Arco and Seatrain also argue that § 2 of Washington's Tanker Law (requiring a local pilot on all tankers larger than 50,000 dwt) has been preempted. Insofar as the Tanker Law prohibits a tanker "enrolled in the coastwise trade" from navigating Puget Sound unless it has a local pilot, the statute is void; it conflicts with clear federal law on that subject. 46 U.S.C. §§ 215, 364 (1970). Recognizing the difficulty of its position, the State of Washington argues that its Tanker Law is part of a comprehensive coastal management plan, and that it should be upheld on that ground. "Cooperative federalism" has been the congressional policy for designing a United States environmental policy. The Congress funded and encouraged the coastal states to design comprehensive and forward-looking coastal management plans. 16 U.S.C. §§ 1451 et seq. Congress has invoked "cooperative federalism" — or at least some state involvement — in virtually all of its water-related regulatory programs: The Federal Water Pollution Control Act, 33 U.S.C. §§ 1151 et seq.; the Clean Air Act, 42 U.S.C. § 1857; the Estuarine Act of 1968, 16 U.S.C. §§ 1221 et seq.; and the Deepwater Ports Act of 1974, 33 U.S.C. §§ 1501 et seq. Congress has used "cooperative federalism" in forming environmental regulations. But the State of Washington fails to note that in those statutes Congress explicitly invited state participation in various phases of the formation of the regulatory scheme. The PWSA, on the other hand, does not invite such state participation; it does not share regulatory authority over oil tankers with the states. Supporting its position, Washington cites Askew v. American Waterways Operators, Inc., 411 U.S. 325 [3 ELR 20362] (1973), and Huron Portland Cement v. City of Detroit, 362 U.S. 440 (1960). The Askew case upheld Florida's law imposing strict liability in tort on oil spillers. The Court held that the state regulatory scheme did not conflict with federal regulation of oil tankers. But that Florida statute did not attempt to regulate the design of the tanker or tanker operations, which were already federally regulated. The Askew case involved the Federal Water Quality Control Act, not the PWSA, and the holding of the Court was in part reflective of the congressional policy of "cooperative federalism" in the Federal Water Quality Control Act. In the Huron Portland Cement case, a city's smoke-control ordinance was applied against a vessel engaged in interstate commerce. The Court observed that the environmental purpose of Detroit's ordinance was not preempted by federal safety inspection regulations. There was "no overlap between the scope of the federal ship inspection laws and that of the municipal ordinance," 362 U.S. at 446. Since the PWSA introduced environmental considerations into the federal tanker regulations,4 the State of Washington cannot say that there is "no overlap" between the state and federal laws. Finally, the State of Washington asserts that the Commerce Department's approval of its coastal management plan (to which the Tanker Law is related) somehow waives federal preemption of the area. The Secretary of Commerce can approve a state's coastal management plan (thereby making it eligible for federal funding) only if "the views of Federal agencies principally affected by such program have been adequately considered." 16 U.S.C. § 1456(b) (1970). The Secretary may or may not have "considered" the views of the Coast Guard. The Secretary may or may not have noticed the preemptive effect of the PWSA on Washington's Tanker Law. That is not before us. We cannot read the Secretary's approval of a coastal management plan, to which the Tanker Law is only collaterally related, as foreclosing our inquiry into the federal preemption of oil tanker regulations. Finally, the state and the other states filing amici briefs have argued with some conviction that a state's officials, responsible to its voters, are better able to protect the state's shoreline environment than is the Commandant of the Coast Guard, headquartered on the other side of the continent. This argument presents legislative, rather than judicial, policy considerations. Because the Washington Tanker Law conflicts with federal law preempting the same subject matter, the state law is void. The plaintiffs have asserted a number of other grounds for declaring the statute void. It is unnecessary to reach these other points. It is likewise unnecessary to grant an injunction. It is presumed that the responsible officials of the State of Washington will not undertake to enforce the statute pending such further appeals as may be taken. The clerk will enter judgment. Neither party shall have costs. This matter came before the undersigned, one of the three judges empanelled to hear and determine the above-entitled cause, in accordance with Title 28 U.S.C. §§ 2281 and 2284 and in furtherance of the unanimous opinion of the said three judges which has now been filed herein. It is hereby ordered, adjudged and decreed that Chapter 125, Laws of Washington, 1975, 1st Extra Session, codified at R.C.W. §§ 88.16.170 et seq. (The Tanker Law) be and the same is hereby declared null and void and of no force and effect. It is further Ordered that the application of the plaintiff for an order enjoining the responsible officials of the State of Washington from enforcing the said statute pending any appeal of this matter be and the same is hereby denied; and it is further Ordered that no party to the cause shall recover costs. 1. The Three-Judge Court Act was modified by 90 Stat. 1119 (1976). Section 7 of that modification specifically denied any retroactive application of the change. Since this case was heard before the change, our jurisdiction is determined by the former law. 2. See 28 U.S.C. § 1253 (1970). 3. By "Puget Sound" we mean those waters east of a line extending from Discovery Island Light south to New Dungeness Light. R.C.W. § 88.16.190. 4. One of the primary reasons for the passage of the Ports and Waterways Safety Act was concern over the environment. The introductory clause of Title I states that the purpose is "to protect the navigable waters and the resources therein from environmental harm resulting from vessel or structure damage." 33 U.S.C. § 1221. 7 ELR 20071 | Environmental Law Reporter | copyright © 1977 | All rights reserved |