The American Waterways Operators Intervenor v. Commonwealth Of Mass., Civil Action No. 05-10112-DPW.

Citation724 F.Supp.2d 170
Decision Date31 March 2010
Docket NumberCivil Action No. 05-10112-DPW.
PartiesUNITED STATES of America, Plaintiff, The American Waterways Operators, et al., Intervenor-Plaintiffs, v. Commonwealth of MASSACHUSETTS, et al., Defendants, Coalition for Buzzards Bay, Intervenor-Defendant.
CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts

724 F.Supp.2d 170

UNITED STATES of America, Plaintiff,
The American Waterways Operators, et al., Intervenor-Plaintiffs,
v.
Commonwealth of MASSACHUSETTS, et al., Defendants,
Coalition for Buzzards Bay, Intervenor-Defendant.

Civil Action No. 05-10112-DPW.

United States District Court,D. Massachusetts.

March 31, 2010.


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COPYRIGHT MATERIAL OMITTED.

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COPYRIGHT MATERIAL OMITTED.

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C. Jonathan Benner, Reed Smith LLP, Sean T. Connaughton, Troutman Sanders LLP, Washington, DC, George J. Skelly, Nixon Peabody LLP, Boston, MA, for Intervenor Plaintiff.

Joshua E. Gardner, United States Department of Justice, Washington, DC, for Plaintiff.

Pierce O. Cray, Seth Schofield, Attorney General's Office, One Ashburton Place Boston, MA, for Defendants.

Jonathan M. Ettinger, Foley Hoag LLP, Boston, MA, Philip N. Beauregard, Beauregard, Burke & Franco, New Bedford, MA, for Intervenor-Defendant.

MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK, District Judge.

This case, arising from a catastrophic oil spill in Buzzards Bay in 2003, concerns whether aspects of the Commonwealth of Massachusetts Oil Spill Prevention Act (“MOSPA”) must give way to the federal Ports and Waterways Safety Act of 1972, as amended (“PWSA”). Throughout the travel of the case, the Commonwealth's fortunes in this litigation-by which the United States seeks to establish that MOSPA is preempted by PWSA-have ebbed and flowed as the matter passed from judicial officer to judicial officer.

Judge Tauro, to whom this case was initially assigned, enjoined the Commonwealth from enforcing certain challenged provisions on preemption grounds. United States v. Massachusetts, 440 F.Supp.2d 24 (Mass.2006). That decision was vacated on appeal by a three judge panel of the First Circuit and remanded for further development of the record. United States v. Massachusetts, 493 F.3d 1 (1st Cir.2007).

Shortly after the Court of Appeals decision, the United States Coast Guard, which has primary federal responsibility for implementing PWSA, issued a Final Rule containing a provision-not before the First Circuit during its review of Judge Tauro's decision-purporting to preempt MOSPA expressly. When Judge Tauro recused himself on remand, the case was reassigned to the late Judge Lindsay, who referred a motion for a renewed injunction against certain MOSPA provisions remaining in dispute to Magistrate Judge Sorokin for a Report and Recommendation. In a thoughtful opinion (# 116) dated June 6, 2008 ( “RR I” ), which I attach to this Memorandum and Order to assure publication in F.Supp.2d, Magistrate Judge Sorokin recommended that a preliminary injunction against enforcement of the disputed provisions of MOSPA enter pending the filing of the administrative record for the final rulemaking. Judge Young, who assumed responsibility for this

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case and other of Judge Lindsay's cases during Judge Lindsay's prolonged illness prior to his death, adopted the Report and Recommendation on August 27, 2008.

After the final administrative record was filed, the parties filed cross motions for summary judgment. In another thoughtful opinion apparently filed duplicatively as (# 154 and # 156) containing his Report and Recommendations dated July 29, 2009 (collectively “RR II” ), which I also attach in the form filed as docket # 154 to this Memorandum and Order to assure publication in F.Supp.2d, Magistrate Judge Sorokin recommended that summary judgment enter for the United States and be denied to the Commonwealth because the Final Rule had effectively preempted the MOSPA provisions at issue. When the parties and intervenors filed objections to RR II (and, through those objections, to the incorporated dimensions of RR I ), 1 Judge Young directed that the case be reassigned. After it was redrawn, the matter came up on the shores of my docket.

Upon review of the parties' extensive underlying motion submissions and their submissions regarding objections to the substance of the two Reports and Recommendations-including a hearing regarding the objections-I find, after an extended drafting effort, that I can at best do little more than paraphrase Magistrate Judge Sorokin's analysis. Accordingly, to avoid the supererogatory, I will simply adopt the attached Reports and Recommendations provided in his opinions of June 6, 2008 and July 29, 2009. I add only a few brief comments.

The decisive change in the tides controlling this litigation-and thereby the fortunes of the Commonwealth's position-was the enactment of the Final Rule by the Coast Guard, leaving no ambiguity regarding the intention to preempt MOSPA. No doubt recognizing that this definitive statement would effectively govern this litigation, the Commonwealth in a Third Amended Complaint chose to take a procedural tack in an effort to forestall being overwhelmed by the position of the United States after adoption of the Final Rule. In particular, the Commonwealth introduced the contention that the rulemaking violated the National Environmental Policy Act (“NEPA”). In surfacing this contention, the Commonwealth was given assistance by the Coast Guard which, in what can only be described as an act of procedural hubris, chose not to prepare an environmental impact statement. The Coast Guard gave no meaningful explanation for choosing not to do so, but rather merely inserted the word “No” in a box next to the checklist question: “Is there a potential for effects on the quality of the environment that are likely to be highly controversial in terms of scientific validity or public opinion?”

The proper way to treat navigation in Buzzard's Bay following the oil spill was highly controversial, both as a specific matter and as a matter of public opinion. Yet, in an exercise of hair splitting to support a dubious objection to RR II, 2 the Coast Guard advances the position that the term “ ‘controversial’ is not synonymous with ‘opposition’ ” and moreover that the

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concerns expressed by various state and federal officials, legislators and constitutional officers were “political.” This supercilious denigration and dismissal of thoughtful environmental concerns expressing opposition to the Coast Guard's controversial action has created an issue in this litigation where none was necessary.

As it happens, the substance of the Coast Guard's actual rulemaking analysis was the functional equivalent of what an environmental impact statement would have generated. The Commonwealth, when pressed at the hearing before me on the objections, could not articulate any material environmental issue left unaddressed in the rulemaking process. The procedural error of not following NEPA formalities was essentially harmless. Under the common sense approach adopted by the First Circuit, when “the failure to make a more formal assessment was harmless error,” the act of “[r]emanding for a differently named assessment [would be] a waste of time.” Save Our Heritage, Inc. v. F.A.A., 269 F.3d 49, 61-62 (1st Cir.2001). Thus, despite the Coast Guard's best efforts dismissively to hand an issue to the Commonwealth, I find no reason to prolong these proceedings while administrative formalities are more punctiliously observed.

In the final analysis, the law of preemption-well charted by the Magistrate Judge in his successive Reports and Recommendations-leaves the last word under Federal law regarding the formulation of regulations to control vessel traffic, to enhance vessel safety and to decrease environmental hazards in Buzzards Bay to the Coast Guard. Congress has explicitly authorized the Coast Guard to do so through its rule making process. Consequently, I hereby ADOPT the June 6, 2008 and the July 29, 2009 Reports and Recommendations, ALLOW the motions of the United States (# 139) and the Intervenor Plaintiffs (# 112 and 131) 3 for summary judgment and DENY the motions for partial summary judgment of the Commonwealth (# 134) and the Intervenor Defendants (# 136). I will accordingly enter judgment for the United States with a permanent injunction.

REPORT AND RECOMMENDATION ON MOTION FOR A PRELIMINARY AND PERMANENT INJUNCTION
SOROKIN, United States Magistrate Judge.

In response to an Order of Reference dated November 27, 2007 (Docket # 97), I

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recommend that the Plaintiff's Motion for a Preliminary and Permanent Injunction (Docket # 91) be ALLOWED in part and DENIED in part, and that the Court enter a Preliminary Injunction.

I. INTRODUCTION AND PROCEDURAL HISTORY

In the wake of an April 27, 2003, oil spill into the waters of Buzzards Bay, the legislature of the Commonwealth of Massachusetts enacted legislation entitled, “An Act Relative to Oil Spill Prevention and Response in Buzzards Bay and Other Harbors and Bays of the Commonwealth” (MOSPA). M.G.L. c. 21M. On January 18, 2005, the United States of America (United States) filed suit, alleging that certain provisions of MOSPA are preempted by federal law and are therefore unconstitutional. 1 Docket # 1. The United States and the Intervenor Plaintiffs (several trade organizations) subsequently moved for judgment on the pleadings. Docket # s 22, 29. On July 24, 2006, this Court allowed that motion, and the Commonwealth was thereby enjoined from enforcing each of the MOSPA provisions which the United States had challenged. Docket # s 74-75; United States v. Massachusetts, 440 F.Supp.2d 24 (D.Mass.2006) (Tauro, J.). The Commonwealth appealed as to only three of the MOSPA provisions enjoined by the District Court's order, and on June 22, 2007, the United States Court of Appeals for the First Circuit vacated that order as to the three provisions which were the subject of the appeal, and remanded the case to the District Court for further development of the record and of the Parties' arguments. Docket # 87; United States v. Massachusetts, 493 F.3d 1 (1st Cir.2007).

Two significant developments have altered the landscape of this litigation since the First Circuit...

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4 cases
  • United States v. Coal. For Buzzards Bay
    • United States
    • U.S. Court of Appeals — First Circuit
    • 17 de maio de 2011
    ...analysis was the functional equivalent of what an environmental impact statement would have generated.” United States v. Massachusetts, 724 F.Supp.2d 170, 174–75 (D.Mass.2010). The court proceeded to overrule the Commonwealth's other objections, found preemption appropriate, entered a decla......
  • United States v. Brissette
    • United States
    • U.S. District Court — District of Massachusetts
    • 19 de março de 2018
    ...2d 24 (D. Mass. 2006) (entering permanent injunction), rev'd, 493 F.3d 1 (1st Cir. 2007) (vacating injunction), on remand, 724 F. Supp. 2d 170 (D. Mass. 2010) (granting summary judgment in favor of government and entering permanent injunction), rev'd sub nom, United States v. Coalition for ......
  • United States v. Brissette
    • United States
    • U.S. District Court — District of Massachusetts
    • 12 de fevereiro de 2020
    ...See, e.g., United States v.Massachusetts, 440 F. Supp. 2d 24 (D. Mass. 2006), rev'd, 493 F.3d 1 (1st Cir. 2007), on remand, 724 F. Supp. 2d 170 (D. Mass. 2010), rev'd sub nom, United States v. Coalition for Buzzards Bay, 644 F.3d 26 (1st Cir. 2011) (involving civil suit brought by the Unite......
  • Lawson v. Fmr Llc.
    • United States
    • U.S. District Court — District of Massachusetts
    • 28 de julho de 2010
    ...answer the complaint and the parties shall within 30 days of this Order exchange the mandatory initial disclosures contemplated by 724 F.Supp.2d 170Federal Rule of Civil Procedure 26(a)(1) and Local Rule 26(2)(A).--------Notes: 1Before issuing this certification, I chose to await a decision......
1 books & journal articles
  • NEPA's Trajectory: Our Waning Environmental Charter From Nixon to Trump?
    • United States
    • Environmental Law Reporter No. 50-5, May 2020
    • 1 de maio de 2020
    ...2020 WL 360493 (D. Mass. Jan. 22, 2020) (noting earlier decision applying concept, in United States v. Massachusetts , 724 F. Supp. 2d 170, 174-75, 40 ELR 20123 (D. Mass. 2010), which the First Circuit in United States v. Coalition for Buzzards Bay , 644 F.3d 26, 38, 41 ELR 20183 (1st Cir. ......

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