LAKE CARRIERS'ASS'N v. Kelley
Decision Date | 16 December 1981 |
Docket Number | Civ. No. 36194. |
Citation | 527 F. Supp. 1114 |
Parties | LAKE CARRIERS' ASSOCIATION, et al., Plaintiffs, v. Frank J. KELLEY, Michigan Attorney General, et al., Defendants. |
Court | U.S. District Court — Western District of Michigan |
Scott H. Elder, Cleveland, Ohio, Prentiss M. Brown, Jr., St. Ignace, Mich., for plaintiffs.
Russell E. Prins, Asst. Atty. Gen., Lands, Lakes & Leases Div., Lansing, Mich., Marlin F. Scholl, Detroit, Mich., for defendants.
Before EDWARDS, Chief Circuit Judge, KEITH, Circuit Judge and PRATT,1 District Judge.
After years of preliminary litigation,2 the complaints of shipowners on the Great Lakes against the efforts of the State of Michigan to prohibit their ships' pollution of its waters by emission of sewage, either raw or treated, is back before this Court. Michigan clearly has, by action of its Legislature and Governor, and more recently, by interpretation of the applicable statute by the Michigan Supreme Court, undertaken to make it unlawful for any shipping to discharge either untreated sewage or treated sewage within its state boundaries. Michigan's boundaries encompass Great Lakes shipping lanes and through Lakes Superior, Michigan, Huron and Erie and through the lakes and rivers interconnecting them — thus potentially applying Michigan's pollution standard to most shipping on the Great Lakes whether interstate or international.
This case presents several important, strongly disputed and difficult questions. First, plaintiffs contend that Michigan acted prematurely in its efforts to take advantage of Congress' delegation of authority to the states to "completely prohibit the discharge from all vessels of any sewage, whether treated or not."
Second, plaintiffs argue that the federal statute authorizing states to prohibit all sewage discharges3 is unconstitutional because it violates the purpose of uniformity which is implicit in the U.S. Constitution's grant of admiralty jurisdiction to the federal courts.4
Third, plaintiffs argue that the statutory delegation of authority just referred to also violates the federal constitution's reservation to the federal government of treaty-making powers in relation to foreign nations—here particularly Canada.
Recognizing as we do that each of plaintiffs' arguments is substantial, we hold (1) that Michigan's actions on this whole record should not be dismissed as premature, (2) that the congressional delegation of authority to the states represents a uniform policy decision by the U.S. Congress which does not offend the Admiralty clause, and (3) that the State and Federal Acts in question do not contravene the treaty-making powers of Congress.
The federal enactments upon which plaintiffs rely are complicated, confusing and arguably contradictory. As a consequence, we search for interpretation which accords with the legislative history, the congressional purposes and the contemporaneous interpretation of the disputed issues by the agencies to which Congress gave responsibility for enforcement or effectuation of the Act.
The Michigan Watercraft Pollution Control Act of 1970, 1970 Mich.Pub.Acts 167 (Mich.Comp.Laws Ann. § 323.331 et seq. (1976)) placed in effect a determination by the state that a prohibition against release of any sewage treated or untreated was essential to "the protection and enhancement of the quality of some or all of the waters within such state." This statute by its terms became effective before any of the various dates contained in the federal legislation — and again by its terms — is still in effect. In addition, on two separate occasions Michigan (through its Governor) petitioned the federal Environmental Protection Agency to place in effect regulations banning release of any sewage into Michigan waters. The first such application filed in early 1975 was denied by the Environmental Protection Agency because it did not contain "substantiating information" that Michigan waters required greater protection than was available generally through the federal enactment.
Michigan thereupon furnished by certification information pertaining to pumpout facilities available for use by shipping within Michigan's waters and renewed its request this time under § 1322(f)(3) of the federal Act. On January 9, 1976, the Administrator of the Environmental Protection Agency granted the certification Michigan had requested reciting as follows:
41 Fed.Reg. 2274 (Jan. 15, 1976).
A major part of our procedural problem concerns what Congress meant in the following three enactments: (1) Congress adopted a section entitled "Federal Standards of Performance":
Section 312(b)(1) of the Federal Water Pollution Control Act Amendments of 1972, Pub.L.No.92-500, 86 Stat. 871 (Oct. 18, 1972), codified at 33 U.S.C. § 1322(b)(1) (1976).
(2) Congress then provided for federal preemption of state laws in § 1322(f)(1) as follows:
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