159 F.3d 1220 (9th Cir. 1998), 97-35010, International Ass'n of Independent Tanker Owners v. Locke

Docket Nº:97-35010.
Citation:159 F.3d 1220
Party Name:98 Daily Journal D.A.R. 11,949 The INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS (INTERTANKO), Plaintiff-Appellant, and United States of America, Intervenor-Appellant, v. Gary LOCKE, Governor of the State of Washington; Christine O. Gregoire, Attorney General of the State of Washington; Barbara J. Herman, Administrator of the State of Wash
Case Date:November 24, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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159 F.3d 1220 (9th Cir. 1998)

98 Daily Journal D.A.R. 11,949

The INTERNATIONAL ASSOCIATION OF INDEPENDENT TANKER OWNERS

(INTERTANKO), Plaintiff-Appellant,

and

United States of America, Intervenor-Appellant,

v.

Gary LOCKE, Governor of the State of Washington; Christine

O. Gregoire, Attorney General of the State of Washington;

Barbara J. Herman, Administrator of the State of Washington

Office of Marine Safety; David MacEachern, Prosecutor of

Whatcom County; K. Carl Long, Prosecutor of Skagit County;

James H. Krider, Prosecutor of Snohomish County; Norman

Maleng, Prosecutor of King County, Defendants-Appellees,

and

Natural Resources Defense Council; Washington Environmental

Council; Ocean Advocates, Intervenors-Appellees.

No. 97-35010.

United States Court of Appeals, Ninth Circuit

November 24, 1998

Before: BROWNING and O'SCANNLAIN, Circuit Judges, and MARQUEZ, [*] District Judge.

Prior report: 148 F.3d 1053

ORDER

The panel has unanimously voted to deny the petitions for rehearing. Judge Browning and Judge O'Scannlain have voted to reject the suggestions for rehearing en banc, and Judge Marquez so recommends.

The full court was advised of the suggestions for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused judges in favor of en banc consideration. Fed. R.App. P. 35.

The petitions for rehearing are DENIED and the suggestions for rehearing en banc are REJECTED.

GRABER, Circuit Judge, dissenting:

I respectfully dissent from the court's decision not to rehear this case en banc.

This is the first published appellate decision interpreting the preemptive effect of the Oil Pollution Act of 1990 (OPA 90). The preemptive effect of OPA 90 is an issue of exceptional importance to the coastal states within the Ninth Circuit. See Fed. R.App. P. 35(a)(2) (providing that en banc consideration is appropriate "when the proceeding involves a question of exceptional importance"). 1

Additionally, although I do not suggest that the Washington regulations necessarily

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are invalid, the opinion's analysis is incorrect in two exceptionally important respects: (1) The opinion places too much weight on two clauses in Title I of OPA 90 that limit OPA 90's preemptive effect. (2) Portions of the opinion that discuss the Coast Guard regulations are inconsistent with Ninth Circuit and Supreme Court precedent. Those issues warrant en banc consideration even if the opinion's ultimate result proves to be correct, a question as to which I express no view.

APPLICATION OF OPA 90'S PREEMPTION CLAUSES

Congress enacted OPA 90 in response to the Exxon Valdez oil spill. OPA 90 combined numerous bills into one comprehensive Act with nine titles. Title IV contains measures designed, in part, to prevent oil spills, while Title I regulates liability and compensation for oil spills. Congress placed the two pertinent preemption provisions in Title I. Those provisions state:

Nothing in this Act or the Act of March 3, 1851 shall--

(1) affect, or be construed or interpreted as preempting, the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to--

(A) the discharge of oil or other pollution by oil within such State; or

(B) any removal activities in connection with such a discharge; or

(2) affect, or be construed or interpreted to affect or modify in any way the obligations or liabilities of any person under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or State law, including common law.

Section 1018(a) of OPA 90 (codified at 33 U.S.C. § 2718(a)).

Nothing in this Act, the Act of March 3, 1851 (46 U.S.C. 183 et seq.), or section 9509 of the Internal Revenue Code of 1986 (26 U.S.C. 9509), shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof--

(1) to impose additional liability or additional requirements; or

(2) to impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature) for any violation of law;

relating to the discharge, or substantial threat of a discharge, of oil.

Section 1018(c) of OPA 90 (codified at 33 U.S.C. § 2718(c)).

The opinion reasons that the "plain language" of those preemption clauses indicates that Congress intended for them to apply to the oil spill prevention measures in Title IV. See The International Assoc. of Indep. Tanker Owners (Intertanko) v. Locke, 148 F.3d 1053, 1060 (9th Cir.1998) ("By its plain language, § 1018 applies not only to Title I but to the other eight Titles of OPA 90 as well."). See also Sloan v. West, 140 F.3d 1255, 1261 (9th Cir.1998) ("If the intent of Congress is clear from the face of the statutory language, we must give effect to the unambiguously expressed Congressional intent."). The opinion bases its "plain language" holding on Congress' use of the term "this Act" in discussing the reach of the clauses. Intertanko, 148 F.3d at 1060. That reasoning is incomplete.

The term "this Act" does plainly indicate Congress' intention to embrace all of OPA 90. However, examining the term "this Act" does not end the analysis. Grammatically, because of its placement in the sentences that comprise the preemption clauses, the term says only that "[n]othing in this Act" shall affect certain things--but we still must consider the meaning of those certain things

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that "[n]othing in this Act" is allowed to affect. At their broadest, the preemption clauses provide that "[n]othing in this Act ... shall in any way affect ... the authority of ... any State ... to impose additional liability or additional requirements ... relating to the discharge, or substantial threat of a discharge, of oil." § 1018(c).

That phrase, read as a whole, is ambiguous, because it plausibly can be understood in two ways. One plausible way to read the phrase is that any state regulation designed to prevent an oil spill is a "requirement[ ] ... relating to the discharge, or substantial threat of a discharge, of oil," because in the broadest sense a preventive measure "relates" to the thing being prevented. Another plausible way to read the phrase, however, is to embrace only state regulations that impose "requirements" pertaining specifically "to the discharge, or substantial threat of a discharge, of oil" once it has occurred. That is, if a discharge is being prevented, there never comes into being a "discharge, or substantial threat of a discharge, of oil." Under the latter, narrower reading, a preventive measure does not relate to an oil "discharge, or substantial threat of a discharge," because its very purpose is to avert an oil discharge, or substantial threat of discharge, and the specified condition of the sentence is never met.

In summary, Congress could have intended to allow any state regulation that might prevent an oil spill, or Congress could have intended a more limited reach. The opinion acknowledges the ambiguity in this provision, which it resolves by analyzing the objectives of Congress. See Intertanko, 148 F.3d at 1060 n. 6 ("Like the phrase 'relating to' employed in § 1018(c), the phrase 'with respect to' used in § 1018(a) is clearly expansive. However, we decline to read § 1018's language according to its terms ... since, as many a curbstone philosopher has observed, everything is related to everything else. Rather, in determining whether state oil-spill prevention laws 'respect' or 'relate to' the 'discharge of oil,' we must look to the objectives of OPA 90. Because one of the explicit objectives of OPA 90 is oil-spill prevention, § 1018 prevents anything in OPA 90 from preempting state laws in this field.") (citations and internal quotation marks omitted).

Contextual clues suggest, however, that Title I's preemption clauses do...

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