Constitutional Law—First Circuit Vacates Preemption Finding Relating to Three Massachusetts Oil Spill Prevention Act Provisions

united states v. locke,30 8. see regulated navigation area; buzzards bay, ma; navigable waterways with the first coast court viewed the issue as a spectrum problem because opa permits states to assign liability while indirectly supp. 2d 24, 28 (d. mass. 2006) (portraying mospa as response to bouchard grounding in bay), vacated, 431 title ii of the ports and waterways safety act as interpreted by ray v. atlantic richfield co. preempts clause gives congress preemptive power over state law). the port tanker safety act (ptsa) modified both the tank vessel act and the 7. see regulated navigation area; buzzards bay, ma; navigable waterways with the first coast circuit considered whether the federal port and waterways safety act (pwsa) doctrines potentially allow state regulation of a traditionally federal sphere.49 40. see id. at 25-26 (stating district court incorrectly enjoined financial assurance provision). pursuant to require the court to draw reasonable inferences in favor of the nonmoving party based solely on the pleadings. guard district, 71 fed. reg. 15,649, 15,651 (mar. 29, 2006) (to be codified at 33 c.f.r. pts. 161, 165) massachusetts challenged the district court's decision as to three of the 2008] case comment 357 case brings out some deficiencies in the analytical framework established under u.s.f. mar. l.j. 227, 230 (2000) (declaring congress began regulating dangerous cargo with tank vessel whether conflict or field preemption applied pursuant to the ray analysis. id. at 111. to that end, locke set up either field or conflict preemption. id. field preemption occurs when congress has so pervasively regulated a the incident impacted an estimated fifty-three miles of shoreline and waterways safety act of 1972 to increase environmental protection.21 forth in ray); ray v. atl. richfield co., 431 u.s. 151, 158-80 (1978) (analyzing preemptive effect of pwsa); 89, 101 (2000) (delineating nature of pwsa). 2. see geier v. am. honda motor co., inc., 529 u.s. 861, 866-74 (2000) (detailing preemption scheme); principles). the court's decision to preempt will pivot on congress's intent. hillsborough co., fla. v. id. at 19. the first circuit remanded for a determination of whether preemption in the form of a legal spill off the coast of england in 1967, congress passed the ports and response in buzzards bay and other harbors and bays of the man_comment_wdff 2/13/2008 10:42:51 am attempting to prevent future incidents like the bouchard's grounding, 241-42. 16. id. at 4, 15-19 (describing mospa section 6). (indicating buzzards bay's status as estuary of national significance since 1985); infra note 10 and of massachusetts near cape cod and is one of five estuaries of national conclusion rather than an explicit statement was sufficient. see id. at 19. bouchard transportation co. barge #120 (bouchard grounding), whose cargo federal rule of civil procedure 12(c).12 title ii did not preempt the � 50c financial assurance clause on the pleadings.40 represented a preliminary defeat for those who valued maritime commercial man_comment_wdff 2/13/2008 10:42:51 am cases). 41. id. at 4-5 (noting district court "acted prematurely"). the court pointed out that the district court 49. see garry, supra note 23, at 241 (addressing ambiguous nature of opa savings clauses). (intertanko) v. locke: do oil and state tanker regulation mix?, 5 ocean & coastal l.j. 117, 120 (2000) balance of power begins with the second clause of article vi of the constitution, which states that federal law preemption controlled title i of pswsa and that field preemption controlled finally, section 50c interests). despite the state's vindication after the initial disappointment at the district court level, the coast 15. 493 f.3d at 4, 13-14 (describing mospa section 4). billion dollar penalty necessarily infringed on title ii because it was not plainly unreasonable. id. at 23-24. court recognized that the overlapping nature of pwsa's titles i and ii presented difficulty for determining john b. garry, intertanko returns fire--it's a direct hit: rhode islands's marine oil transportation policies more careful review of the coast guard's intent.39 http://www.epa.gov/emergencies/content/lawsregs/opaover.htm (last visited feb. 3, 2008) (declaring opa man_comment_wdff 2/13/2008 10:42:51 am http://www.mass.gov/dep/cleanup/sites/bouchard.htm (last visited dec. 15, 2007) [hereinafter bouchard barge 22. see 46 u.s.c. �� 9101-02 (2006) (promulgating requirements for secretary of transportation under the court will conduct a preemption analysis to determine whether an injunction regardless of its alleged inadequacy, has the potential to address any between uniform federal standards and state regulation of local environment); timothy e. mccarthy, casenote, when the state law conflicts with the federal government, or stands as an obstacle to achievement of its intent to preempt state law. id. in the absence of express language, the court may imply intent if it finds 12. see united states v. massachusetts, 440 f. supp. 2d 24, 28 (d. mass. 2006) (describing nature of chamber of shipping of america brought suit arguing to enjoin key mospa preemption maxim stricter state law not always helpful following congressional action). significance.6 provisions.11 compelled some vessels to seek a financial assurance certificate.17 20. see act of june 23, 1936, ch. 729, 49 stat. 1889 (regulating vessel design, construction and 27. see garry, supra note 23, at 251-59, 263-72, 277-79 (discussing state oil laws and reactions to court the first circuit's decision helps illustrate that the locke analytical scheme mospa's language was seven enjoined provisions: sections 4, 6, and 50c.14 in united states v. massachusetts, the first circuit held that the district court overlapping." id. at 161. uncertainty.36 reconcile the seemingly contradictory opa savings clauses with pwsa.35 resulting in increased state regulation of oil spills.34 background for motion before court), vacated, 431 f.3d 1 (1st cir. 2007). cent. pipeline corp. v. state corp. comm'n of kansas, 489 u.s. 493, 509 (1989) (indicating supremacy two key supreme court cases, ray v. atlantic richfield company29 alteration); see also k. allen brooks, california oil spill laws in the wake of united states v. locke, 12 5. id. at 4-5 (vacating, remanding, and criticizing district court's approach). the most recent threat involved the spill); see also brooks, supra note 20, at 231 (describing pwsa in terms of contemporary environmental further measures to prevent spills by passing the oil pollution act (opa).23 garry, supra note 23, at 246-47 (summarizing and explaining ray holding). preempt the state regulation at issue. see id. the court inquired whether the coast guard had expressed intent buzzards bay, ma, 69 fed. reg. 62,427, 62,428 (oct. 26, 2004) (to be codified at 33 c.f.r. pt. 165) the district of massachusetts granted a permanent injunction on all seven 48 (2000) (noting international dimensions of maritime litigation). massachusetts passed mospa, "an act relative to oil spill prevention and hillsborough co., fla. v. automated med. labs., 471 u.s. 707, 712-13 (1985) (summarizing preemption manning inquiry correctly began with title ii but should not have ended there. id. and that both titles include references to "manning." 493 f.3d at 12. the court accordingly held that the environmentalism, congress should strengthen the language of the relevant federalism is "[t]he legal relationship and distribution of power between the (referencing bouchard grounding in 2003); see also massachusetts department of environmental protection, http://www.savebuzzardsbay.org/newsevents/press-releases/09-07-06-pr.htm [hereinafter ag reilly fights variables and blurs lines.52 in the wake of united states v. locke, 34 suffolk u. l. rev. 241, 241 (2001) (commenting exxon valdez led circuit reasoned that a court could not enjoin the appealed provisions without necessarily helpful.26 held that the preemptive analysis in ray controls despite the opa savings provisions that the ninth circuit had in short, the first circuit concluded that a preemption holding would require despite steadily increasing federal regulation in the field of oil spills and tanker areas. given that federal regulations are best suited to balance uniformity and interests and a victory for pro-environmentalists, some uncertainty remains as 2008] case comment 359 enjoin), vacated, 431 f.3d 1 (1st cir. 2007). ray's analysis turned on its conclusion that conflict environmental problems.51 bay's location), vacated, 431 f.3d 1 (1st cir. 2007); navigation and waterways management improvement, 1. see black's law dictionary 644 (8th ed. 2004) (defining federalism). the inquiry into the f.3d 1 (1st cir. 2007). expressed dissatisfaction with federal safety standards and suggested bay vulnerability). after the exxon valdez oil spill of 1989, congress took locke.47 the first of federal regulation.28 21. see united states v. locke, 529 u.s. 89, 101 (2000) (stating pwsa prompted by torrey canyon the overlap analysis almost always applicable.48 act); michael f. vitt, united states v. locke: after a rough passage, intertanko crosses the bar of state title ii.33 11. see united states v. massachusetts, 440 f. supp. 2d 24, 27 & n.4 (d. mass. 2006) (setting up application). although the first circuit recognized that the overlap analysis will not always apply when a state man_comment_wdff 2/13/2008 10:42:51 am feds] (discussing attorney general's appeal of district court's judgment). massachusetts challenged the first determined that title ii did not unambiguously cover the � 4 manning two groups with distinct interests underlie the litigation: one that favors � 50c(d), the massachusetts department of environmental protection may lower the amount of the bond if 13. united states v. massachusetts, 440 f. supp. 2d 24, 48 (d. mass. 2006) (granting plaintiff's motion to pablo javier man 493 f.3d at 13. the court 38. see id. at 13 (noting record required further development regarding manning issue). the court in 1978, 14. see 493 f.3d at 4 (stating appeal challenged injunction of three mospa provisions); press release, the difficulty of determining which pwsa title should apply renders the plaintiffs moved for judgment as a matter of law pursuant to manning requirements for tank barges and tow vessels in buzzards bay.15 massachusetts legislature passed mospa after bouchard grounding). pwsa by requiring the secretary of transportation to regulate tank vessels in and litigation between pro-environmental and pro-maritime interests.27 the supreme court's analytical finally, the court held that the bay.8 that courts can easily blur the line between title i and title ii, and that the opa in contrast, conflict preemption presents a situation where compliance with state and federal laws is not 42. see supra notes 31-35 and accompanying text (discussing precedent). 4. id. at 4 (stating issue and parties' arguments thereto). oil spills have historically threatened the bay because of its 44. see garry, supra note 23, at 258 (analyzing stakes between pro-environmental and pro-maritime commonwealth."10 scheme in locke supports cooperative federalism, whereby courts carefully scheme). court in locke revisited the subject of pwsa preemption attempting to federal regulation of dangerous cargo, however, did not begin until 9. see bouchard barge fuel oil spill, supra note 8 (estimating direct oil damage to shoreline); see also framework). 19. see act of sept. 1, 1789, ch. 11, �� 1-37, 1 stat. 55 (regulating vessel licensing and commerce). 35. see united states v. locke, 529 u.s. 89, 103-12 (2000) (setting forth analytical scheme based on ray pwsa). notably, ray recognized but did not expand on the notion that both titles are "somewhat interests); mccarthy, supra note 28, at 1227, 1231 (highlighting strong federal tanker regulation history and the overlap analysis, a new form of preemption analysis, whereby states could regulate local waters as long as in united states v. massachusetts,3 section 4 enhanced the provisions, finding that pwsa preempted the massachusetts statute.13 37. see 493 f.3d at 5 (stating district court should have adhered to more elaborate analytical framework). the united states district court for construction or design.32 the coalition for buzzards bay, ag reilly fights feds to protect buzzards bay (sept. 7, 2006), available at currently stands, however, the statutory scheme is vague at best. courts regulates a particular local waterway, the court failed to illustrate any specific instance when it would not. see id. than ninety miles of shoreline impacted to some extent); infra note 10 and accompanying text (noting 23. see united states v. locke, 529 u.s. 89, 101-02 (2000) (outlining opa effects on pwsa); see also district court's decision regarding sections 4, 6, and 50c of massachusetts general laws chapter 21. see 493 federal goals: united states v. locke, 39 duq. l. rev. 865, 891 (2001) (acknowledging some dichotomy treacherous areas for navigation.7 3. 493 f.3d 1 (1st cir. 2007). 29. 435 u.s. 151 (1978). act). pwsa consists of two titles, whose purposes sometimes overlap. see united states v. locke, 529 u.s. congress passed the tank vessel act of 1936.20 congress's response to growing public concern over valdez incident). court hastily decided the case on the pleadings.42 vessels meet certain criteria. id. at 20. although some of the criteria strike at the core of title ii, the court held states.19 the law of preemption by agency action requires a clear statement from the federal agency of its intention to 31. see united states v. locke, 529 u.s. 89, 103-12 (2000) (supplementing analytical framework set sufficiently ambiguous to justify further analysis.43 bernard h. oxman & patrick o. gudridge, case report, united states v. locke, 94 am. j. int'l l. 745, 747- marine oil transportation regulation that was stricter than the federal standard. see garry, supra note 23, at 33. see ray v. atl. richfield co., 431 u.s. 151, 161-65 (1978) (establishing preemption scheme for 43. see 493 f.3d 1 at 24 (criticizing district court's failure to adhere to complex overlap analytical federal regulations can preempt state regulations expressly or implicitly.25 the district court acted too quickly in enjoining key mospa provisions. as it 36. see infra note 47-48 and accompanying text (indicating unanswered questions in court's analytical 24. see garry, supra note 23, at 242, 277-78 (discussing state regulations in rhode island, california, 46. see garry, supra note 23, at 273 (stating locke indicates shift toward balancing state and federal 525, 531 (1st cir. 2007). have outlined the pwsa's preemptive framework.31 when state and federal laws conflict, (indicating tanker vessel act first attempt at tanker regulation). the purpose of the tank vessel act was to affecting areas traditionally under title ii. id. at 21-22. the first circuit did not hold that the mospa one 30. 529 u.s. 89 (2000). decided before opa, ray held that states could generally pass regulations to opa); u.s. environmental protection agency, oil pollution act overview, the first 25. see supra note 2 and accompanying text (describing preemption analysis). operators international association of independent tank owners, bimco, and that the united states did not meet its burden of showing that � 50c(d) is not within state power. id. at 21. the massachusetts, 493 f.3d 1 (1st cir. 2007) (reporting on buzzards bay's environmental risks). in 1969, for instance, the tank barge florida spilled about 175,000 gallons of oil into the bay. id. similar incidents recurred in 1977, 1986, 1999, and 2003. id. supra notes 39-40 (describing first circuit's broad overlap analysis). act); carney, supra note 20, at 120 (commenting ptsa modified tank vessel act and pwsa). 6. see united states v. massachusetts, 440 f. supp. 2d 24, 27 n.2 (d. mass. 2006) (stating buzzards last word on the preemptive effect of pwsa.45 constitutional law--first circuit vacates preemption finding relating to 34. see garry, supra note 23, at 241 (discussing issues arising from vague opa language). the issue preempted the massachusetts oil spill prevention act (mospa).4 section 6 required a tug escort in special interest waters.16 effective and stating legal repercussions). after the locke's balancing of federal and state interests). hall const. l.j. 1209, 1231 (2000) (recognizing environmental interests cannot trump federal supremacy); 356 suffolk university law review [vol. xli:355 proficiency, training, and casualty reporting--united states v. locke, 120 s.ct. 1135 (2000), 10 seton similarly, the opa savings thus, evidence and therefore vacated and remanded the judgment.18 erred in enjoining the mospa provisions based on the pleadings.37 although the holding see also brooks, supra note 20, at 233-42 (discussing ray and locke as cornerstones of oil spill regulation automated med. labs., 471 u.s. 707, 713 (1985). the first question is whether congress expressly declared regulation to reach the safe harbor of preemption, 25 tul. mar. l.j. 573, 581 (2001) (noting purpose of buzzards bay (the bay), the driving force behind mospa, lies off the coast 17. id. at 4, 20-25 (describing mospa section 50c). 28. see, e.g., elizabeth a. rosso, the supremacy clause requires state law to yield to federal law in 2000, the supreme address the legal analysis when a state rewords its statute to specifically address local peculiarities and no direct national oceanic and atmospheric administration, remedial/injury assessment: buzzards bay/bouchard 120, decisions affecting interests at play). when congress takes a particular action, stricter state regulations are not of the state law is in order.2 360 suffolk university law review [vol. xli:355 coast guard regulation is in place. id. subsequently, the united states, the american waterways concerns); carney, supra note 20, at 120 (noting pwsa's importance in tanker regulation after tank vessel increased environmental protection and one that favors the uniform standards 51. see vitt, supra note 20, at 592 (arguing potential disasters addressable within federal process). and locke holdings). the first circuit noted that both titles are concerned with marine environment protection otherwise affecting state authority for regulating certain activities). states used opa as a blank check to pass nonetheless, the locke analysis has left gaps that continue to be the source of pwsa titles applies to a given provision. the first circuit's decision indicates man_comment_wdff 2/13/2008 10:42:51 am based on ray and locke, the first circuit correctly held that the district the first circuit's decision is consistent with locke, the supreme court's in sum, the first circuit in massachusetts v. united states correctly held that title i and a title ii finding is outcome determinative. see supra notes 31-35 (explaining significance of ray 18. id. at 25 (concluding district court erred in dismissing on pleadings). under title ii). regulations did not affect national regulation. id. at 111-12. various ways.22 with opa was that it included two provisions that allowed states to impose additional liability relating to the by passing opa in 1990, however, congress confused the analysis 14 (noting attorney general stated district court decision "blow to . . . responsible protection of . . . coastline"); http://www.mass.gov/dep/cleanup/laws/spillact.htm (last visited jan. 21, 2008) (noting coast guard regulations f.3d at 4. after the torrey canyon oil 47. see oxman & gudridge, supra note 28, at 749 (describing problems with locke). locke did not promulgate uniform standards and encourage safe tanker navigation. h.r. rep. no. 74-2962, at 2 (1936). the current scheme leaves too many exploitable accompanying text (indicating bouchard grounding impetus for massachusetts legislature passing mospa). provisions, which were therefore subject to a locke overlap analysis.38 viewed as a carte-blanche for state regulation. united states v. locke, 529 u.s. 89, 107 (2000). the locke three massachusetts oil spill prevention act provisions--united states v. national and regional governments . . . ."1 reviewing state oil spill statutes must determine which of two overlapping 358 suffolk university law review [vol. xli:355 further evidence.41 aimed at protecting the environment provided they did not regulate ship federal law, 52. see garry, supra note 23, at 274 (indicating locke holding opened potential pro-environmental door). regarding the � 6 tug escort requirements, the first circuit remanded for a man_comment_wdff 2/13/2008 10:42:51 am buzzard's bay bouchard barge: #6 fuel oil spill shore impacts, massachusetts department of environmental protection, oil spill guidance information, feasible, or where the state law impedes its federal counterpart's objective. spggc, llc v. ayotte, 488 f.3d and opa); oxman & gudridge, supra note 28, at 747 (summarizing holding in locke). significantly, locke field that it has left no room for state involvement. id.; see also spggc, llc v. ayotte, 488 f.3d 525, 530 district court dismissed the action on the pleadings, the first circuit vacated to the future of this litigation.44 savings doctrines allow states to interfere in traditionally federally-regulated washington's oil tanker regulations concerning general navigation watch procedures, english language compare 493 f.3d at 11-12 (holding manning requirements not unambiguously analyzed under title ii field preemption), with vitt, supra note 20, at 593 (arguing locke holding renders manning requirements exclusively 50. see garry, supra note 23, at 274 (indicating locke overlap facilitates pro-environmental interests); 12(c) motion), vacated, 431 f.3d 1 (1st cir. 2007). a 12(c) motion is similar to a 12(b)(6) motion in that both to preempt � 6. id. at 18-19. in 2006, the coast guard had announced that ray and locke preempted mospa. (1st cir. 2007) (citations omitted) (noting state regulation invalid despite no direct conflict with federal law). analyzed whether the � 4 manning requirements were more properly defined in terms of marine environment discharge of oil. id.; see also 33 u.s.c. �� 2718(a)(1),(c) (2006) (limiting act's boundaries in preempting or maine, and washington); cf. ag reilly fights feds, supra note 14 (noting massachusetts attorney general guard district, 71 fed. reg. 15,649, 15,650 (mar. 29, 2006) (to be codified at 33 c.f.r. pts. 161, 165) protection under title i, or in terms of tanker regulation under title ii. id. at 12-13. the distinction between a guard passed regulation that directly conflicted with mospa in 2007. see ag reilly fights feds, supra note safety, several states, including massachusetts, have passed their own more elicited a legislative response in the form of mospa.9 fuel oil spill] (specifying repercussions of 2003 bouchard spill). state oil spill regulations have generated some discussion 32. see ray v. atl. richfield co., 431 u.s. 151, 158-80 (1978) (analyzing legal effects of titles i and ii); 39. see 493 f.3d at 19 (noting remand better course for addressing questions of coast guard's intent). 45. see supra notes 35, 39-40 and accompanying text (discussing first circuit holding in light of locke). despite the correct holding, the 48. see united states v. locke, 529 u.s. 89, 111 (2000) (recognizing difficulty in determining title i or ii and remanded, holding that further analysis was necessary.5 and dismissed the case without taking evidence. id. at 4. is "the supreme law of the land." see u.s. const. art. vi, cl. 2. (setting forth maxim of federalism); nw. is a vague balancing standard that yields undesirable results.50 statutes to preempt state oil laws. stringent regulations.24 federal maritime trade regulation dates back to the founding of the united balance coexisting state and federal interests.46 10. see 493 f.3d at 3-4 (further detailing mospa emergence); united states v. massachusetts, 440 f. tank vessel act); peter j. carney, note, the international association of independent tanker owners ma, http://www.darrp.noaa.gov/northeast/buzzard/injury.html (last visited dec. 15, 2007) (estimating more 26. see charleston & w. carolina ry. co. v. varnville furniture co., 237 u.s. 597, 604 (1915) (stating tank ruptured in april 2003, spilling approximately 98,000 gallons of oil near