726 F.2d 483 (9th Cir. 1984), 81-3700, Chevron United States, Inc. v. Hammond

Docket Nº:81-3700.
Citation:726 F.2d 483
Party Name:Envtl. CHEVRON U.S.A., INC., et al., Plaintiffs-Appellees, and Intercontinental Bultank Corporation, et al., Intervening Plaintiffs-Appellees, v. Jay S. HAMMOND, Governor of the State of Alaska, et al., Defendants-Appellants, and Cordova District Fisheries Union, et al., Intervening Defendants-Appellants.
Case Date:February 03, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 483

726 F.2d 483 (9th Cir. 1984)


CHEVRON U.S.A., INC., et al., Plaintiffs-Appellees,


Intercontinental Bultank Corporation, et al., Intervening



Jay S. HAMMOND, Governor of the State of Alaska, et al.,



Cordova District Fisheries Union, et al., Intervening


No. 81-3700.

United States Court of Appeals, Ninth Circuit

February 3, 1984

Argued and Submitted Aug. 18, 1982.

Page 484

Charles P. Diamond, Richard E. Sherwood, Ira M. Feinberg, Franklin A. Gevurtz, O'Melveny & Myers, Los Angeles, Cal., Michael Robbins, Hartig, Rhodes, Norman, Mahoney & Edwards, John A. Treptow, Atkimson, Conway, Young, Bell & Gagnon, Anchorage, Alaska, Raymond J. Burke, Jr., Burke & Parsons, New York City, for appellees.

J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., Michael R. Spaan, U.S. Atty., Anchorage, Alaska, Philip A. Berns, Paul

Page 485

Gary Sterling, San Francisco, Cal., LCDR Hal W. Henderson, Washington, D.C., for amicus curiae U.S. in support of the appellees.

Wilson L. Condon, Atty. Gen., Douglas K. Mertz, Asst. Atty. Gen., Juneau, Alaska, for defendants-appellants.

Robert E. Mintz, Anchorage, Alaska, for intervening defendants-appellants.

Appeal from the United States District Court for the District of Alaska.

Before PREGERSON, ALARCON, and NELSON, Circuit Judges.

PREGERSON, Circuit Judge:

Alaska Statute Sec. 46.03.750(e) (1976) 1 prohibits oil tankers from discharging ballast into the territorial waters of Alaska if that ballast has been stored in the vessel's oil cargo tanks. On appellees' motion for partial summary judgment, the district court invalidated this Alaska statute. The court ruled that the statute is preempted by Coast Guard regulations promulgated under Title II of the Ports and Waterways Safety Act of 1972, as amended by the Ports and Tanker Safety Act of 1978 (PWSA/PTSA), 46 U.S.C. Sec. 391a (Supp. V 1981). We reverse.


Unloaded oil tankers must take on seawater for ballast to ensure proper submergence and vessel stability. Upon arrival in port, the tankers must then discharge this ballast--i.e., "deballast"--before loading their cargo tanks with oil. Ballast held in empty oil tanks will contain oil residue. Both the state and federal governments have been concerned about the danger to the marine environment caused by regular pumping of large quantities of oil-polluted ballast into the ocean.

During the past three decades, the federal government has sought to minimize environmental harm from oil tankers through a series of increasingly stringent statutes and international conventions. These measures cover many aspects of tanker safety, design, and traffic control. They also encompass measures designed to prevent accidental oil spills and authorize the Coast Guard to regulate deballasting. Pursuant to this authority, Coast Guard regulations prohibit deballasting from oil cargo tanks within fifty miles of shore. 33 C.F.R. Secs. 157.29, 157.37(a)(1) (1982). An exception is made, however, for the carefully monitored discharge of so-called "clean" ballast. 33 C.F.R. Sec. 157.43(a). "Clean" ballast is that which "if discharged from a vessel that is stationary into clean, calm water on a clear day would not produce visible traces of oil on the surface of the water or on adjoining shore lines ...." 33 C.F.R. Sec. 157.03(e)(1).

This deballasting prohibition and exception promulgated by the Coast Guard were first conceived by an international body in 1969, as part of amendments made that year to the 1954 International Convention for the Prevention of Pollution of the Sea by Oil. 2 Two subsequent major international agreements also considered tanker pollution problems, including those caused by deballasting. They are the 1973 International Convention for the Prevention of Pollution from Ships (MARPOL) and the

Page 486

Protocol of the 1978 International Conference on Tanker Safety and Pollution Prevention (the MARPOL Protocol). See 33 U.S.C. Secs. 1901-1911 (Supp. V 1981) (the enabling legislation to the MARPOL Protocol). The PWSA/PTSA and attendant Coast Guard regulations--including the deballasting standard at issue in this case--are based in large part upon MARPOL and the MARPOL Protocol. Although MARPOL, the MARPOL Protocol, and the PWSA/PTSA made significant advances in a number of other areas of pollution control, no changes were made to the "clean" deballasting exception originally adopted by the 1969 convention. 3

The PWSA/PTSA and the international conventions also addressed environmental problems posed by deballasting by requiring increasingly stricter design features and operational equipment on tankers. For example, new tankers of a certain size are required to have separate tanks to be used for ballast only and to have crude oil washing systems to clean the cargo tanks. 46 U.S.C. Sec. 391a(7); 33 C.F.R. Secs. 157.09(2), 157.35. In some respects, the PWSA/PTSA and Coast Guard regulations are even more stringent than international standards. For example, the PWSA/PTSA imposes design requirements on ships smaller than those covered by the MARPOL Protocol. 46 U.S.C. Sec. 391a(7)(A). The Coast Guard, however, has never adopted a more restrictive definition of "clean ballast" and continues to enforce the same standards originally introduced by an international convention in 1969.

Meanwhile, the Alaska legislature has determined that even the small amount of oil contained in ballast meeting the federal definition of "clean" causes harm to the Alaskan marine environment. Thus, Alaska Stat. Sec. 46.03.750(e) provides that absolutely no ballast water that has been held in oil cargo tanks may be discharged into the waters of the state. Absent an emergency, all tankers must use on-shore facilities to process ballast water containing oil.


In addressing the issue of federal preemption presented by this case, we divide our discussion into two major inquiries. 4 In the absence of express preemption language, we first address the threshold question whether Congress in passing the PWSA/PTSA implicitly intended to occupy the field of regulating pollution from oil tankers within a state's territorial waters. In determining congressional intent, relevant subjects include the Supreme Court's decision in Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978); comprehensiveness of federal regulations; consideration of state police power; congressional intent that there be collaborative federal/state efforts to protect the marine environment; need for uniform regulation; history of regulation of the subject matter; and available legislative history. After addressing the threshold question, we conclude that Congress in passing the PWSA/PTSA did not intend to occupy the field of regulating pollution from oil tankers within a state's territorial waters. Having concluded that Congress did not intend to foreclose all state legislation in this field, we then address the second major question whether the Alaska statute is nonetheless void because it actually conflicts with the PWSA/PTSA and implementing Coast Guard regulations. On this critical issue, after considering the need to find actual conflict, the importance of reconciling the statutory schemes, and the objectives of the federal and state legislation, we conclude that no such conflict exists.

Page 487

I. In Passing the PWSA/PTSA, Did Congress Implicitly Intend to Occupy the Field of Regulating Oil Tanker Pollution Within a State's Territorial Waters?

The PWSA/PTSA contains no explicit expression of congressional intent to preempt state law regulating oil tanker pollution within a state's territorial waters. Therefore, we must apply principles of preemption analysis to the challenged state statutory provision to determine implicit legislative intent. In this task, we are assisted by the fact that ours is not the first case to examine the preemptive effect of the PWSA/PTSA on state law. In Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978), the Supreme Court examined the effect of the PWSA on a number of Washington statutes, including provisions requiring certain design safety features for tankers operating in Puget Sound. The Court held that these "design requirements, standing alone, are invalid in light of the PWSA and its regulatory implementation." 435 U.S. at 160-61, 98 S.Ct. at 996. After examining the PWSA's comprehensive scheme for regulating tankers, the Court found that Congress had entirely occupied the field as to tanker design requirements:

This statutory pattern shows that Congress, insofar as design characteristics are concerned, has entrusted to the Secretary the duty of determining which oil tankers are sufficiently safe to be allowed to proceed in the navigable waters of the United States. This indicates to us that Congress intended uniform national standards for design and construction of tankers that would foreclose the imposition of different or more stringent state requirements.

435 U.S. at 163, 98 S.Ct. at 997 (emphasis added).

The Court's finding of preemption is specifically limited to the regulation of vessel "design characteristics" and thus does not control the outcome of the present case involving ocean pollutant discharges. 5 As a matter of fact, the court specifically explained that tankers must meet "otherwise valid state or federal rules or regulations that do not constitute design or construction specifications." 435 U.S. at 168-69, 98 S.Ct. at 999-1000. Even though Ray does not control the outcome of the present case, in addressing the preemption issue, we nonetheless are guided by the analytical approach followed in Ray. This approach recognizes the significance of the subject matter regulated. As we stressed in Morseburg v. Balyon, 621 F.2d 972 (9th Cir.1980),...

To continue reading