In re: Bluewater Network and Ocean Advocates
| Decision Date | 22 December 2000 |
| Docket Number | No. 99-1502,99-1502 |
| Citation | 234 F.3d 1305 |
| Parties | (D.C. Cir. 2000) In re: Bluewater Network and Ocean Advocates, Petitioners |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Howard M. Crystal argued the cause for petitioners. With him on the briefs was Eric R. Glitzenstein.
Eileen T. McDonough, Attorney, U.S. Department of Justice, argued the cause for respondents. With her on the brief was Lois J. Schiffer, Assistant Attorney General.
Before: Edwards, Chief Judge, Sentelle and Henderson, Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
On March 24, 1989, the Exxon Valdez supertanker struck Bligh Reef in Prince William Sound, dumping nearly eleven million gallons of oil into Alaska's once-pristine coastal ecosystem. Congress responded with the Oil Pollution Act of 1990 ("OPA" or "Act"), Pub. L. No. 101-380, 104 Stat. 484 (1990). The Act not only broadened federal liability for oil spills, it also established substantive tanker design and evaluation requirements to prevent such spills from occurring in the first place. The Oil Pollution Act of 1990 is now more than ten-years old, but the Coast Guard, the enforcing agency, still has failed to promulgate regulations required by the Act. Citing the agency's failures on this score, petitioners Bluewater Network and Ocean Advocates now seek a writ of mandamus to compel the Coast Guard to finally make good on Congress' commitments.
One of the contested statutory provisions--s 4110--requires the Coast Guard, by August 18, 1991, to promulgate regulations establishing minimum compliance standards and use requirements for tank level and pressure monitoring ("TLPM") devices. No such regulations currently exist. Furthermore, the Coast Guard admits that it will not undertake any rule making in the future, citing a temporary 1997 rule making that expired in 1999. The Coast Guard's earlier temporary compliance standards are of no moment. Petitioners' claim here, with which we agree, is that the agency's failure to pursue rule making once the temporary regulations expired was a blatant violation of the statute. The Coast Guard never stated in its 1997 regulation that, after sunset, it would simply abandon standard-setting altogether. Indeed, this does not even appear to be a viable option under the statute. Moreover, the Coast Guard has never even attempted to promulgate equipment use requirements. It cannot now point to an admittedly incomplete, and now-expired, rule to avoid a congressional mandate to establish some sort of regulations.
The second contested provision--s 4116(c)--requires the Coast Guard, by February 18, 1991, to initiate issuance of regulations to define waters, including Prince William Sound and two other named areas, over which single-hulled tankers must be escorted by at least two towing vessels. Citing an earlier rule making in which it promulgated regulations concerning the three named areas, the Coast Guard asserts that petitioners should have brought their mandamus claims regarding regulation of "other waters" in a petition for review of the earlier rule making. However, as with § 4110, petitioners are not challenging the earlier rule making; and the Coast Guard gave interested parties no reason to believe that the earlier regulations covering § 4116(c) would be the final word on the matter. Nonetheless, we do agree with the Coast Guard that § 4116(c) does not create a sufficiently clear duty regarding "other waters" to merit mandamus relief. In particular, it is not at all obvious whether § 4116(c) actually forces the Coast Guard itself to come up with the names of, and instigate rulemaking regarding, possible "other waters." Petitioners are certainly free to petition the agency for rulemaking when and if they alight on candidates for inclusion.
On the record at hand, we grant in part and deny in part petitioners' mandamus request and order the Coast Guard to conduct prompt rulemaking pursuant to § 4110 of the Act.
The OPA consists of nine distinct titles, two of which-Titles I and IV--constitute the bulk of the Act's provisions. Title I "Oil Pollution Compensation and Liability," contains extensive new provisions regarding the liability of parties responsible for an oil spill. See §§ 1001-1020, 104 Stat. at 486-506 (). Included among these provisions is § 1017, which grants this court exclusive jurisdiction to review challenges to "any regulation promulgated under [the] Act." Section 1017 also imposes a 90-day jurisdictional time limit within which challenges to regulations must be brought. See § 1017(a), 104 Stat. at 504 (codified at 33 U.S.C. § 2717(a)). Title IV, "Prevention and Removal," for the most part amends existing statutory provisions, in many cases instructing the Secretary of Transportation, including the Coast Guard, to promulgate regulations for ensuring the prevention of oil spills. See §§ 4101-4306, 104 Stat. at 509-541 (). Two such preventative provisions are at issue in this case.
The first, § 4110, consists of two parts. See § 4110, 104 Stat. at 515 (codified at 46 U.S.C. § 3703 note). Section 4110(a) requires that the Coast Guard, no later than one year after enactment of the OPA, establish regulations setting "minimum standards" for TLPM devices. See § 4110(a), 104
Stat. at 515. Such devices would continually monitor the volume of oil contained in a tanker's hull and alert the crew to recognizable drops in the oil level, thereby signalling a potential leak. Section 4110(b) mandates that the Coast Guard, also no later than one year after enactment of the OPA, issue "regulations establishing ... the use [by oil cargo ships] of ... tank level and pressure monitoring devices, which are referred to in subsection (a) and which meet the standards established by the Secretary under subsection (a)." § 4110(b), 104 Stat. at 515. The Coast Guard has interpreted § 4110(b) to apply only to single, and not double, hulled tankers. See 46 C.F.R. § 32.22T-1(b) (1998). Petitioners do not challenge that interpretation here.
Section 4116(c), the second provision at issue here, requires that, not later than 6 months after enactment of the OPA, "the Secretary shall initiate issuance of regulations ... to define those areas, including Prince William Sound, Alaska, and Rosario Strait and Puget Sound, Washington (including those portions of the Strait of Juan de Fuca east of Port Angeles, Haro Strait, and the Strait of Georgia subject to United States jurisdiction), on which single hulled tankers over 5,000 gross tons transporting oil in bulk shall be escorted by at least two towing vessels." § 4116(c), 104 Stat. at 523 (codified at 46 U.S.C. § 3703 note) (emphasis added). Thus, the Act names three areas specifically for which the Coast Guard must issue regulations.
Petitioners filed the present mandamus petition in December 1999, seeking to compel the Coast Guard to comply with its obligations under both § 4110 and § 4116(c) of the OPA. If the Coast Guard had simply disregarded both of the provisions, deciding instead to delay indefinitely any rulemaking under either section, this would be a straightforward case of unreasonable delay. What makes this case somewhat unusual, albeit not difficult, is the fact that the Coast Guard has episodically engaged in some rulemaking, and promulgated some regulations, pursuant to each of the provisions at issue. In order to put this case in proper perspective, we must first outline the curious history of agency actions purportedly taken pursuant to § 4110 and § 4116.
Approximately three months before the statutorily-imposed deadline, the Coast Guard issued an advanced notice of proposed rulemaking seeking comments and suggestions regarding possible proposed rules for complying with SS 4110(a) and (b). See 56 Fed. Reg. 21,116 (May 7, 1991). The Coast Guard also commissioned a technical feasibility study of existing TLPM devices, released in early 1993, which confirmed that, as of 1993, "existing level detectors [were] not sufficiently sensitive to detect leakage before a large discharge occurr[ed]." Notice of Availability of Technical Feasibility Study, 58 Fed. Reg. 7,292, 7,292 col. 2 (Feb. 5, 1993). The study found that "attainable accuracy is expected to be within 1.0-2.0% of the actual level." Id. col. 3. Concerned that a 1.0 to 2.0 percent error margin, which translates to between 36,075 and 72,150 gallons of oil for a 400,000 ton tanker, would provide "insufficient warning to allow prompt action by the crew," the Coast Guard called for a public hearing to augment comments to the original advanced notice. See Notice of Public Meeting, 59 Fed. Reg. 58,810, 58,811 col. 2 (Nov. 15, 1994).
In its August 1995 notice of proposed rulemaking, the Coast Guard limited its proposed rule to the establishment of standards for TLPM devices pursuant to § 4110(a), leaving questions of installation and use of compliant devices, pursuant to § 4110(b), for another day. See 60 Fed. Reg. 43,427, 43,428-29 (Aug. 21, 1995). The Coast Guard proposed "that a leak detection device must sound an alarm before the contents of the tank decline to a level of 0.5 percent below the level at which the tank was loaded, or at the loss of 1,000 gallons of cargo, whichever is less." Id. at 43,429 col. 3. It chose this exacting standard, despite the technical feasibility study, because "[a] loss of 1,000 or more gallons in virtually all environments poses appreciable risk to the marine environment." Id. The Coast Guard acknowledged that "currently available devices may not meet the proposed standards for meaningful leak detection; however, establishing...
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