493 F.3d 1 (1st Cir. 2007), 06-2361, United States v. Massachusetts

Docket Nº:06-2361, 06-2362.
Citation:493 F.3d 1
Party Name:UNITED STATES; American Waterways Operators; International Association of Independent Tanker Owners; BIMCO; Chamber of Shipping of America, Plaintiffs, Appellees, v. Commonwealth of MASSACHUSETTS; Massachusetts Department of Environmental Protection; Deval Patrick, in his capacity as Governor of Massachusetts; Arleen O'Donnell, in her capacity as A
Case Date:June 21, 2007
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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493 F.3d 1 (1st Cir. 2007)

UNITED STATES; American Waterways Operators; International Association of Independent Tanker Owners; BIMCO; Chamber of Shipping of America, Plaintiffs, Appellees,

v.

Commonwealth of MASSACHUSETTS; Massachusetts Department of Environmental Protection; Deval Patrick, in his capacity as Governor of Massachusetts; Arleen O'Donnell, in her capacity as Acting Commissioner of the Massachusetts Department of Environmental Protection, [*] Defendants, Appellants,

Coalition for Buzzards Bay, Defendant.

United States; American Waterways Operators; International Association of Independent Tanker Owners; BIMCO; Chamber of Shipping of America, Plaintiffs, Appellees,

v.

Commonwealth of Massachusetts; Massachusetts Department Of Environmental Protection; Deval Patrick, in his capacity as Governor of Massachusetts; Arleen O'Donnell, in her capacity as Acting Commissioner of the Massachusetts Department of Environmental Protection, Defendants,

Coalition for Buzzards Bay, Defendant, Appellant.

Nos. 06-2361, 06-2362.

United States Court of Appeals, First Circuit.

June 21, 2007

Heard May 8, 2007.

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[Copyrighted Material Omitted]

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Pierce O. Cray, Assistant Attorney General of the Commonwealth of Massachusetts, with whom Thomas F. Reilly, Attorney General of the Commonwealth of Massachusetts, was on brief, for appellants in No. 06-2361.

Philip M. Ferester, Assistant Attorney General of the State of Washington, Rob McKenna, Attorney General of the State of Washington, Talis J. Colberg, Attorney General of the State of Alaska, Bill Lockyer, Attorney General of the State of California, G. Steven Rowe, Attorney General of the State of Maine, Hardy Myers, Attorney General of the State of Oregon, Patrick Lynch, Attorney General of the State of Rhode Island, and Roberto J. Sánchez-Ramos, Secretary of Justice of the Commonwealth of Puerto Rico, on brief for the States of Washington, Alaska, California, Maine, Oregon, and Rhode Island, and the Commonwealth of Puerto Rico, amici curiae in support of the Commonwealth of Massachusetts.

Jonathan M. Ettinger, with whom Elisabeth M. DeLisle and Foley Hoag LLP were on brief, for appellant in No. 06-2362.

Philip N. Beauregard and Jane Medeiros Friedman on brief for the Towns of Bourne, Fairhaven, Falmouth, Gosnold, Marion, and Westport, and the City of New Bedford, amici curiae in support of the Commonwealth of Massachusetts and the Coalition for Buzzards Bay.

Susan M. Reid on brief for the Conservation Law Foundation, amicus curiae in support of appellants.

Mark B. Stern, Attorney, Civil Division Appellate Staff, with whom Alisa B. Klein, Attorney, Civil Division Appellate Staff, Peter D. Keisler, Assistant Attorney General, Michael J. Sullivan, United States Attorney, and Jonathan F. Cohn, Deputy Assistant Attorney General, were on brief, for appellee United States.

C. Jonathan Benner, with whom Jeffrey Orenstein and Troutman Sanders LLP were on brief, for appellees American Waterways Operators, International Association of Independent Tanker Owners, BIMCO, and Chamber of Shipping of America.

Before LYNCH, Circuit Judge, CYR, Senior Circuit Judge, and HOWARD, Circuit Judge.

LYNCH, Circuit Judge.

The states and the federal government have ongoing conflicts about the adequacy of federal laws protecting against maritime oil spills. Several states, including Massachusetts, have passed laws to protect particularly sensitive waterways. The framework for analyzing such conflicts derives from the several preemption analyses set forth in United States v. Locke, 529 U.S. 89, 120 S.Ct. 1135, 146 L.Ed.2d 69 (2000), and Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978). In short, depending on the nature of state and federal regulations, either field preemption, conflict preemption, or overlap analysis is used to determine whether state law impermissibly infringes on federal authority.

After a catastrophic oil spill in Buzzards Bay in 2003, the Commonwealth of Massachusetts enacted the Massachusetts Oil

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Spill Prevention Act (MOSPA). See 2004 Mass. Acts 920 (codified as amended primarily at Mass. Gen. Laws ch. 21, §§ 42, 50B-50E, and ch. 21M). MOSPA imposes requirements designed to reduce the risk of oil spills, and to ensure that adequate resources are available to remedy such spills.

The United States sued Massachusetts on January 18, 2005, seeking to enjoin the enforcement of several MOSPA provisions. The United States alleged that these provisions were preempted by the Ports and Waterways Safety Act of 1972, Pub L. No. 92-340, 86 Stat. 424, as amended by the Port and Tanker Safety Act of 1978, Pub.L. No. 95-474, 92 Stat. 1471 (collectively, the "PWSA"), and by regulations promulgated thereunder by the Coast Guard. 1 This allegation included a claim that MOSPA's financial assurance requirement, which requires certain vessels to post a bond to ensure their ability to respond financially to an oil spill, see Mass. Gen. Laws ch. 21, § 50C, was preempted by Title II of the PWSA, notwithstanding relevant savings clauses in the Oil Pollution Act of 1990 ("OPA"), Pub.L. No. 101-380, 104 Stat. 484, 505-06 (codified at 33 U.S.C. § 2718). The United States did not assert violations of any treaties or claim that federal foreign affairs powers were at issue. 2

The Commonwealth disputed each claim of preemption. It argued that Congress had given the states leeway to regulate particularly sensitive local waterways, at least in the absence of an actual conflict with a federal statute or regulation. In the state's view, there was no such conflict.

The district court, acting on the United States' motion for judgment on the pleadings, and thus without taking evidence, entered judgment for plaintiffs and permanently enjoined all of the challenged provisions. 3 United States v. Massachusetts, 440 F.Supp.2d 24, 48 (D.Mass.2006).

The Commonwealth's appeal challenges the injunction only insofar as it blocked three of MOSPA's provisions: an enhanced manning requirement for tank barges and tow vessels in Buzzards Bay, see Mass. Gen. Laws ch. 21M, § 4; a tug escort requirement for special interest waters, see id. § 6; and a requirement that certain vessels obtain a certificate of financial assurance, the amount of which can vary, see id. ch. 21, § 50C.

We vacate the entry of judgment and the permanent injunction for the United States, and we remand for further proceedings consistent with this opinion. As

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we explain, the district court did not adhere to the analytical structure the Supreme Court has required to resolve federal-state conflicts in this area. The district court acted prematurely.

I. FACTUAL BACKGROUND

Buzzards Bay is one of five recognized Estuaries of National Significance. See 69 Fed.Reg. 62,427, 62,428 (Oct. 26, 2004); see also 33 U.S.C. § 1330 (establishing a national estuary program). Massachusetts has designated the Bay as part of an "Ocean Sanctuary." Mass. Gen. Laws ch. 132A, § 13(c).

Buzzards Bay is characterized by unusually dangerous ledges, reefs, and currents. Most of the Bay is less than 50 feet deep, and the Bay is less than 8 miles wide. See B. Howes et al., Ecology of Buzzards Bay : An Estuarine Profile 7, 23-24 (U.S. Dep't of the Interior, Biological Report No. 33, 1996), available at http://cuadra.cr.usgs.gov/Techrpt/96-33.pdf. The Bay's Cape Cod Canal has unusually strong tidal currents, and it "represents a significant navigational challenge." Id. at 98.

Significant volumes of oil are transported through the Bay and Canal each year. In 2002, about 80% of the trips were made in single-hull barges. 71 Fed.Reg. 15,649, 15,650 (Mar. 29, 2006). In the state's view, the waters of Buzzards Bay are subject to a disproportionate and unnecessary risk of an oil spill. A Coast Guard-sponsored report has concluded that "the risk for oil or hazardous material discharge in Buzzards Bay is relatively high." Id.

There have already been several damaging spills in the Bay. In 1969, roughly 175,000 gallons of No. 2 fuel oil spilled into the Bay after the barge Florida ran aground. Id. In 1974, a sizable amount of oil spilled from the Bouchard No. 65, inflicting significant damage on local marine life. Howes et al., supra, at 102-03. In 1977, there was yet another Bouchard spill, this one releasing 81,000 gallons of fuel oil into the water. 71 Fed.Reg. at 15,650. In 1986, the tank barge ST-85 was grounded in the Bay, spilling 119,000 gallons of gasoline. 4 Id. In 1999, there was another grounding, this one involving a vessel carrying 4.7 million gallons of No. 6 fuel oil. Id.

Most recently, in April 2003 the barge Bouchard-120 released an estimated 98,000 gallons of heavy fuel oil into the Bay, killing hundreds of birds, closing thousands of acres of shellfish beds, affecting over 90 miles of coastline, and generating significant clean-up costs. 5 Massachusetts responded by enacting MOSPA on August 4, 2004. 2004 Mass. Acts at 933.

II. DESCRIPTION OF FEDERAL LAW

A. Background

Federal regulation of maritime commerce has existed since the founding of the

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country. See Act of Sept. 1, 1789, ch. 11, § 1, 1 Stat. 55. Federal regulation specifically geared toward the transport of dangerous cargoes started with the Tank Vessel Act of 1936, Pub.L. No. 74-765, 49 Stat. 1889. See K. Brooks, California Oil Spill Laws in the Wake of United States v. Locke, 12 U.S.F. Mar. L.J. 227, 230 (1999-2000). Regulatory involvement increased after 1967, the year of a massive oil spill involving a supertanker off the coast of England. Indeed, Congress has since enacted more stringent legislation for oil tankers and more comprehensive remedies...

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