UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
) AMERICAN WATERWAYS OPERATORS, ) INTERNATIONAL ASSOCIATION OF ) INDEPENDENT TANKER OWNERS, CHAMBER OF SHIPPING OF AMERICA, ) INTERNATIONAL CHAMBER OF ) SHIPPING, and INTERNATIONAL GROUP ) OF P&I CLUBS, ) ) Plaintiffs, ) Civil Action No. 10-10584 DPW ) v. )
DEVAL PATRICK, in his capacity as ) Governor of Massachusetts; and LAURIE ) BURT, in her capacity as Commissioner of the ) Massachusetts Department of Environmental ) Protection, ) ) Defendants. )
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT
George J. Skelly (No. 546797) C. Jonathan Benner (pro hac vice) NIXON PEABODY LLP Jeffrey Orenstein (pro hac vice) 100 Summer Street REED SMITH LLP Boston, MA 02110 1301 K Street, N.W., Suite 1100 Telephone: 617-345-1000 Washington, DC 20005-3373 Facsimile: 866-294-7517 Telephone: 202-414-9200 [email protected] Facsimile: 202-414-9299 [email protected] [email protected]
TABLE OF CONTENTS
Page
INTRODUCTION...... 1
BACKGROUND ...... 3
I. Massachusetts Initiatives to Regulate Tank Vessels...... 3
II. The 2009 Act...... 5
ARGUMENT...... 6
I. Standard for Summary Judgment ...... 6
A. Rule 56(c) ...... 6
B. There Are No Material Facts in Dispute...... 7
II. Controlling Preemption Principles...... 8
A. General Preemption Principles...... 8
B. Ray-Locke Framework of PWSA Preemption...... 9
III. Federal Law Preempts the 2009 Act ...... 11
A. The 2009 Act’s Indirect Regulation of Preempted Subject Matters Violates the Supremacy Clause...... 11
B. The 2009 Act’s State Pilot Provisions Are Preempted ...... 16
1. 46 U.S.C. § 8501(d) Expressly Preempts the Commonwealth’s State Pilot Rules ...... 16
2. The Commonwealth’s State Pilot Rule is Preempted by Coast Guard Regulations...... 20
C. The 2009 Act’s Notification Provisions Are Preempted...... 22
D. The 2009 Act’s Tug Escort Provisions Are Preempted...... 26
CONCLUSION ...... 30
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TABLE OF AUTHORITIES
Cases
520 S. Mich. Ave. Assocs., Ltd. v. Shannon, 549 F.3d 1119 (7th Cir. 2008) ...... 12
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)...... 6
Anderson v. Pac. Coast S.S. Co., 225 U.S. 187 (1912)...... 17
California Fed. Sav. & Loan Ass’n. v. Guerra, 479 U.S. 272 (1987)...... 8
City of New York v. FCC, 486 U.S. 57 (1988)...... 8
Central Valley Chrysler-Plymouth v. Calf. Air Resources Bd., No. CV-F-02-5017, 2002 WL 34499459 (E.D. Cal. June 11, 2002)...... 14
Charleston & Western Carolina Ry. Co. v. Varnville Furniture Co., 237 U.S. 597 (1915)...... 25
City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624 (1973)...... 9
Crowley Marine Serv., Inc. v. Maritrans, Inc., 530 F.3d 1169 (9th Cir. 2008) ...... 28
Dakota, Minn. & E. R.R. Corp. v. S. Dakota, 236 F. Supp.2d 989 (D.S.D. 2002) ...... 12
Davis v. Barge “TMT” Jacksonville, 484 F. Supp. 52 (M.D. Fla. 1979)...... 17
Fidelity Fed. Sav. & Loan Ass’n v. De La Cuesta, 458 U.S. 141 (1982)...... 9
Gade v. Nat’l Solid Wastes Mgmt. Ass’n., 505 U.S. 88 (1992)...... 9
Grafton & Upton R.R. Co. v. Town of Milford, 337 F. Supp. 2d 233 (D. Mass. 2004)...... 12
Hillsborough Cty Fla. V. Automated Med. Labs., 471 U.S. 707 (1985)...... 8
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Hines v. Davidowitz, 312 U.S. 52 (1941)...... 9
Jackson v. Marine Exploration Co., Inc., 583 F.2d 1336 (5th Cir. 1978) ...... 17, 18
Law v. National Collegiate Athletic Ass'n, 134 F.3d 1438 (10th Cir. 1998) ...... 16
Louisiana Pub. Serv. Comm'n v. FCC, 476 U.S. 355 (1986)...... 8
Nebraska v. Wyoming, 507 U.S. 584 (1993)...... 6
New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 668 U.S. 645 (1995)...... 12
Osprey Ship Management, Inc. v. Foster, No. 1:05CV390, 2008 WL 4371376 (S.D. Miss. Sept. 18, 2008)...... 19
Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190 (1983)...... 9
Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978)...... passim
Seaboard Tug & Barge, Inc. v. Rederi AB/Disa, 213 F.2d 772 (1st Cr. 1954)...... 28
State of Kansas ex rel. Todd v. United States, 995 F.2d 1505 (10th Cir. 1993) ...... 12
Transcontinental Gas Pipe Line Corp. v. State Oil & Gas Bd., 474 U.S. 409 (1986)...... 12
United States v. Massachusetts, 440 F. Supp. 2d 24 (D. Mass 2006)...... passim
United States v. Massachusetts, 724 F. Supp. 2d 170 (D. Mass 2010)...... passim
United States v. Massachusetts, 493 F.3d 1 (1st Cir. 2007)...... passim
United States v. R. I. Insurers’ Insolvency Fund, 80 F.3d 616 (1st Cir. 1996)...... 7
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United States v. Locke, 529 U.S. 89 (2000)...... passim
Federal Constitution & Statutes
U.S. CONST. ART. VI § 1, cl. 2 ...... 8
33 U.S.C. § 1223(a) ...... 9
33 U.S.C. §§ 1121-1236 ...... 1
33 U.S.C. § 2701, et seq...... 15
46 U.S.C. § 3703(a) ...... 9
46 U.S.C. §§ 3701-3719 ...... 1
46 U.S.C. § 8501(d) ...... passim
46 U.S.C. § 8501(e) ...... 17
46 U.S.C. § 8502(a) ...... passim
Pub. Law 105-383 § 311(b)(1)(a) ...... 26
Pub. Law 92-340, 86 Stat. 424...... 1
Pub. Law 95-474, 92 Stat. 1471...... 1
Act of August 7, 1789, ch. 9, 1 Stat. at L. 53 (1789)...... 17
Federal Rules and Regulations
33 C.F.R. § 161.15(a)...... 2, 23
33 C.F.R. § 165.100(d) et seq ...... passim
46 C.F.R. § 15.812(a)...... 21
59 Fed. Reg. 36,316-21 (July 15, 1994) ...... 18, 19, 21
72 Fed. Reg. 50,052-59 (August 30, 2007)...... passim
FED. R. CIV. P. 56(c) ...... 6
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State Statutes & Regulations
Mass. Gen. Laws ch. 21L, § 2...... 15
Mass. Gen. Laws ch. 21L, § 4 et seq ...... passim
Mass. Gen. Laws ch. 21M, § 9 et seq ...... passim
2004 Mass. Acts ch. 251...... 1, 3
2004 Mass. Acts ch. 457...... 3
2008 Mass. Acts ch. 268...... 1
2009 Mass. Acts ch. 101...... 1
2010 Mass. Acts ch. 359...... 1
314 CMR 19.00, et seq ...... passim
Other Authorities
John Harper et al., Costs Associated with the Cleanup of Marine Oil Spills, International Oil Spill Conference, http://www.iosc.org/papers/00410.pdf...... 15
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INTRODUCTION
On September 24, 2009, the Commonwealth of Massachusetts enacted legislation to
create manning, tug escort and notification rules for tank vessels in Buzzards Bay,1 marking the
second time in five years that the Commonwealth has sought to alter or supplant federal
standards for tank vessels promulgated by the United States Coast Guard. 33 C.F.R. §
165.100(d)(5) (“Special Buzzards Bay regulations”) (implementing the Port and Waterways
Safety Act of 19722 (“PWSA”)). The question raised by the Commonwealth’s actions in this
case, as in prior related litigation,3 is: who determines the appropriate standards for tank vessel
operation in U.S. waters? Is it the U.S. Coast Guard, operating under Congressional mandates to
bring its expertise and national perspective to bear on these subjects, or is it each individual
coastal state or local government? The answer provided in two Supreme Court decisions is that
“the Supremacy Clause dictates that the federal judgment that a vessel is safe to navigate United
States waters prevail over the contrary state judgment.” Ray v. Atlantic Richfield Co., 435 U.S.
151, 165 (1978) (emphasis added), accord United States v. Locke, 529 U.S. 89, 111 (2000).
Accordingly, this Court invalidated the Commonwealth’s prior attempt to modify federal manning and tug escort standards in Buzzards Bay, stating that “the law of preemption . . . 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
1 2004 Mass. Acts ch. 251, as amended by: 2008 Mass. Acts ch. 268; 2009 Mass. Acts ch. 101; and 2010 Mass. Acts ch. 359, codified at Mass. Gen. Laws. ch. 21L, § 4(f) and ch. 21M, § 9 (the “2009 Act”) (Attachment B).
2 Pub. L. No. 92-340, 86 Stat. 424, as amended by the Port and Tanker Safety Act of 1978, Pub. L. No. 95-474, 92 Stat. 1471, (together, the “PWSA”) (codified at 33 U.S.C. §§ 1121-1236 and 46 U.S.C. §§ 3701-3719).
3 United States v. Massachusetts, 724 F.Supp.2d 170 (D. Mass. 2010) (Woodlock, J). References below to “the Court’s” decision in this case include the two Reports and Recommendations incorporated therein.
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Guard.” United States v. Massachusetts, 724 F.Supp.2d 170, 175 (D. Mass. 2010) (Woodlock,
J).4
In the current action, five industry organizations whose members are affected by
Massachusetts law complain that the Commonwealth has endeavored yet again to supplant federal standards by creating a regulatory scheme for Buzzards Bay in which tank vessels are compelled, through the threat of triple fines in the event of an oil spill, (1) to take state pilots, despite federal statutes and regulations that expressly preempt such manning rules (46 U.S.C. §
8501(d); 33 C.F.R. 165.100; 72 Fed. Reg. 50.052-59)); and (2) to provide 24-hour notice to state authorities before entering Buzzards Bay, despite the obvious conflict with federal notification procedures tank vessels must observe as part of the Vessel Movement Reporting System
(“VMRS”) established by the Coast Guard as a uniform national system “to monitor and track vessel movements.” 33 C.F.R. § 161.15(a); 33 C.F.R. § 165.100(d)(5)(iv)(A)(1). The 2009 Act also requires double-hull tank vessels to have a tug escort shadow their movements despite Coast
Guard regulations that expressly exempt double-hull tank vessels from tug escorts. 33 C.F.R. §
165.100(d)(5)(ii); 72 Fed. Reg. 50,056-57. See Summary of the 2009 Act (Attachment A).
A patchwork of conflicting rules produced by divergent state actions frustrates rather than
advances the important aims of marine safety and environmental protection. These goals are
best served, as Congress intended, by “a single decisionmaker, rather than a different one in each
State”—“someone with an overview of all the possible ramifications of the regulation of oil
4 Although the 2009 Act makes explicit reference only to Buzzards Bay, MassDEP regulations implementing the Act purport to target any “Area of Special Interest” designated “by the Secretary of the Office of Environmental Affairs . . . including, but not limited to Buzzards Bay, Vineyard Sound, and Mount Hope Bay.” 314 CMR 19.02. Nothing in this Memorandum’s frequent references to Buzzards Bay should be construed to mean that Plaintiffs challenge the validity of the 2009 Act only with regard to Buzzards Bay. With this Motion for Summary Judgment, Plaintiffs seek the invalidation and permanent injunction of the 2009 Act wherever the Commonwealth may seek to apply and enforce it.
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tankers . . . .” Ray, 435 U.S. at 177. As a matter of constitutional law, the Supreme Court has
made plain that “[t]he issue is not adequate regulation but political responsibility; and it is, in
large measure, for Congress and the Coast Guard to confront whether their regulatory scheme,
which demands a high degree of uniformity, is adequate.” Locke, 529 U.S. at 117. Federal
regulations that provide the optimal safeguards for our marine environment are a shared goal of
industry and all levels of government. “States as well as environmental groups and local port
authorities will participate in the process” of influencing the development of these regulations.
Id. But, as this Court correctly observed, the United States, acting though the U.S. Coast Guard,
not the individual states, has the “last word.” United States v. Massachusetts, 724 F.Supp.2d
170, 175 (D. Mass. 2010) (Woodlock, J).
BACKGROUND
I. Massachusetts Initiatives to Regulate Tank Vessels
The 2009 Act is best understood as a reaction to the decisions of this Court invalidating
and enjoining the Commonwealth’s previous attempt to regulate in federally preempted areas of
tank vessel design and operation. In 2004, the Massachusetts General Court enacted the
Massachusetts Oil Spill Pollution Act (“MOSPA”). 2004 Mass. Acts ch. 251, as amended by
2004 Mass. Acts ch. 457 § 1. That statute sought, among other things, to prohibit the use of
single-hull vessels in Massachusetts waters; to require employment of a Massachusetts-licensed
pilot; and to establish state standards for tank vessel manning, tug escorts, drug and alcohol
testing, and tugboat design, construction, crew training, and equipment. Id. This Court,
applying the Supreme Court’s precedents in Locke and Ray, held that these provisions were
preempted by the PWSA and the Coast Guard’s implementing regulations. United States v.
Massachusetts, 440 F. Supp. 2d 24 (D. Mass. 2006) (Tauro, J). The Commonwealth appealed
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that decision, but only with regard to three of the seven invalidated MOSPA provisions (the manning, tug escort, and financial assurance provisions), leaving the balance of the permanent injunction in effect. On appeal, the First Circuit remanded the case to this Court for further development of the parties’ arguments and/or the record as to the three provisions appealed.
United States v. Massachusetts, 493 F.3d 1, 19 (1st Cir. 2007).
Soon after the First Circuit remanded the case, “[t]wo significant developments . . . altered the landscape of [the] litigation,” as this Court explained. United States v. Massachusetts,
724 F.Supp.2d 170, 176 (D. Mass. 2010): “First, the parties . . . resolved their differences as to one of the three provisions which were the subject of the appeal” (the financial assurance provision) and “[s]econd, . . . the Coast Guard promulgated revised regulations governing tank vessels and tug/barge combinations transiting Buzzards Bay.” Id. (citing 72 Fed. Reg. 50,052
(“revised RNA”)). The Coast Guard’s revised RNA altered the issues on remand “because the
Final Rule: (1) expressly states that it preempts the MOSPA provisions at issue; and (2) establishes revised tug escort and manning provisions only with respect to Buzzards Bay (the
First Circuit having had before it only a more general Northeast Region regulation that remains in effect).” Id. This Court preliminarily enjoined the remaining manning and tug escort provisions under challenge, finding that the revised RNA “expressly preempts the MOSPA provisions at issue” and furthermore, “that MOSPA is conflict preempted.” United States v.
Massachusetts, 724 F.Supp.2d 170, 183-84 (D. Mass. 2010). On the same grounds, this Court permanently enjoined MOSPA’s manning and tug escort provisions on March 31, 2010. Id. It is against this backdrop that the 2009 Act was enacted on September 24, 2009.
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II. The 2009 Act
With all of the challenged provisions of MOSPA enjoined, permanently or preliminarily,
Massachusetts legislators realized that any state regulation imposing manning and tug escort
requirements on tank vessels in Massachusetts waters would not survive constitutional scrutiny.
See Mot. Dismiss, Dkt. #12, at 3. The Commonwealth, therefore, devised the 2009 Act as an
attempt to accomplish much of what MOSPA sought to accomplish “by alternative means.” Id.
Namely, it created a regulatory scheme for tank vessels where compliance would be ostensibly
optional, but coerced through the threat of an enormous augmented penalty in the event of an oil
spill. The Act provides:
Whoever owns or operates a tank vessel carrying 6,000 or more barrels of oil within Buzzards bay, from which oil is spilled into Buzzards bay, and who: (i) failed to provide notice in accordance with subsection (a) of section 9 of chapter 21M; (ii) failed to request a state pilot in accordance with subsection (b) of said section 9 of said chapter 21 M; or (iii) violates any provision of this chapter shall be assessed triple the fines provided in this section.
Mass. Gen. Laws ch. 21L, § 4(f) (emphasis added).
The only way to avoid the risk of triple fines is to comply with the “notice” and “state
pilot” rules in “section 9 of chapter 21M” as follows: First, a vessel “owner or operator” must
“provide 24-hour [prior] notice to the department, in a manner to be determined by the
department, of the owner or operator’s intent to enter or operate such vessel in Buzzard’s bay.”
Mass. Gen. Laws ch. 21M, § 9(a). This entails extensive communications with state authorities that overlap with the on-going notification dialogue vessels must maintain with federal authorities. Cf. 33 C.F.R. § 165.100(d)(5)(iv); 314 CMR 19.04. If the vessel is exempt from the
federal tug escort standards for Buzzards Bay by virtue of its double-hull design, the 2009 Act
requires “[t]he commissioner” to “dispatch a state-provided tugboat escort” and the “owner or
operator” must “request[] that a state pilot be dispatched to a towing vessel for the purposes of
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guiding such tank vessel into or within Buzzard’s bay.” Mass. Gen. Laws 21M, § 9 (b) and (d).
In addition, the Massachusetts Department of Environmental Protection (“MassDEP”) has
enacted various other requirements and procedures as part of its implementing regulations. See
314 CMR 19.00.
As discussed below, there is no constitutional distinction between tank vessel regulations
that effect compliance through the threat of a fine, and regulations that effect compliance through
the threat of a triple fine in the event of an oil spill. See Section III.A. In both cases, economic
pressure is applied by the state to induce deviation from federal standards and to ensure that the
Commonwealth’s notions of politically acceptable standards supplant carefully considered standards fashioned by the national government following study and administrative process.
ARGUMENT
I. Standard for Summary Judgment
A. Rule 56(c)
Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, courts should grant summary judgment if the record shows “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c); Nebraska v.
Wyoming, 507 U.S. 584, 590 (1993). “By its terms, this standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment: the requirement is that there is no genuine
issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986)
(emphasis added). Consequently, “[o]nly disputes over the facts that might affect the outcome of
the suit under the governing law will properly preclude the entry of summary judgment.” Id. at
248. In this action, the only matters in dispute are questions of law.
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B. There Are No Material Facts in Dispute
The question of federal preemption before this Court is a pure question of law. See
United States v. Rhode Island Insurers’ Insolvency Fund, 80 F.3d 616, 619 (1st Cir. 1996) (“[A] federal preemption ruling presents a pure question of law subject to plenary review.”). Material to the disposition of this case is the undisputed fact that the United States and the
Commonwealth of Massachusetts have promulgated disparate regulations on the subjects of manning and tug escorts for tank vessels in Buzzards Bay. The question of whether the
Commonwealth’s regulations must yield under the Supremacy Clause requires no factual development, only analysis of certain provisions in the U.S. Code, Code of Federal Regulations,
Federal Register, Massachusetts General Laws and Code of Massachusetts Regulations. While this case certainly raises fundamental legal disputes between the parties regarding the proper application of preemption principles to the relevant statutes and regulations, no material factual disputes have arisen to the best of Plaintiffs’ knowledge. As such, this Court indicated during a
September 2, 2010 hearing on Defendants’ Motion to Dismiss that little or no discovery should be necessary in this case and that disposition on summary judgment might be appropriate.
To the extent that some factual context would aid the Court in the disposition of this case, two members of Plaintiff organizations have submitted affidavits. Mot. Summ. J. Ex. A-B.
These testimonials largely serve as exemplars of what is self-evident, or easily inferred, from the text of the laws under challenge and their implementing regulations—that Plaintiffs’ members are subject to the 2009 Act, and that the practical effect of the Act’s triple fines provisions is to compel compliance with the Commonwealth’s notice and state pilot standards. Id. There are, therefore, no questions for which a fact-finder is required. Summary judgment is appropriate.
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II. Controlling Preemption Principles
A. General Preemption Principles
Under the Supremacy Clause of the U.S. Constitution,5 federal statutes preempt state law to the extent that Congress intended to displace state action. California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 280 (1987). Similarly, “[t]he statutorily authorized regulations of [a federal] agency will pre-empt any state or local law that conflicts with such regulations or frustrates the purposes thereof.” City of New York v. FCC, 486 U.S. 57, 64 (1988). See also,
Hillsborough County Fla. v. Automated Med. Labs., Inc., 471 U.S. 707, 713 (1985) (“We have held repeatedly that state laws can be pre-empted by federal regulations as well as by federal statutes.”). Regardless of whether the potential source of preemption is a federal statute or regulation, the sole guide in determining whether a state law is preempted is congressional intent.
California Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 280 (1987); Louisiana Pub. Serv.
Comm'n v. FCC, 476 U.S. 355, 369 (1986) (“The critical question in any pre-emption analysis is always whether Congress intended that federal regulation supersede state law”).
The intent of Congress to displace or accommodate state action varies from statute to statute; thus, “each [preemption] case turns on the peculiarities and special features of the federal regulatory scheme in question.” City of Burbank v. Lockheed Air Terminal Inc., 411 U.S. 624,
638 (1973). The intent of Congress may be expressed in various ways. In some instances,
Congress, or a federal agency acting under congressionally delegated authority, may make its intent to displace state law known in express terms (“express preemption”) and states are, accordingly, barred from adopting and enforcing regulations contrary to this stated intent. Pac.
5 U.S. CONST. ART. VI § 1, cl. 2 (“the Laws of the United States … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding”).
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Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190 (1983).
When federal authorities have not conveyed in express terms their intent to preempt state action,
preemption may be implied “where the scheme of federal regulation is ‘so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it’” (“field preemption”). Gade v. Nat’l Solid Wastes Mgmt. Ass’n., 505 U.S. 88, 98 (1992) (quoting
Fidelity Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982)). Preemption may also be implicit where (1) compliance with both state and federal law would be impossible, or (2) where state action “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (“conflict preemption”). Hines v. Davidowitz, 312 U.S.
52, 67 (1941).
B. Ray-Locke Framework of PWSA Preemption
In the field of tank vessel regulation, Congress has enacted several statutes that expressly reserve certain subjects for federal authorities to regulate exclusively. See, e.g., 46 U.S.C. §
8501(d). With the PWSA, Congress preempted state law implicitly. Ray v. Atlantic Richfield
Co., 435 U.S. 151 (1978); United States v. Locke, 529 U.S. 89 (2000). As the Supreme Court held in both Ray and Locke, congressional intent to displace state action under the PWSA is clearly implicit in two respects: (1) state regulations that fall within the subjects of PWSA Title
II (the “design, construction, alteration, repair, maintenance, operation, equipping, personnel qualification, and manning of vessels . . .” 46 U.S.C. § 3703(a)) are ousted under field preemption principles because Congress mandated federal regulation of these fields; and (2) state regulations governing subjects addressed by Coast Guard rules promulgated under PWSA Title I
(i.e., regulations for controlling vessel traffic and protecting the marine environment pursuant to
33 U.S.C. § 1223(a)) are preempted under conflict preemption principles because Congress authorized, but did not require, Coast Guard regulations of these subjects. Ray, 435 U.S. at 165;
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Locke, 529 U.S. at 111. Accordingly, states may regulate a Title I subject matter where the
Coast Guard has not exercised its discretionary authority on the same subject, but when the Coast
Guard adopts rules governing a particular Title I subject (or determines no such requirements
should be adopted at all), state rules on the same subject are preempted. Id. This framework, the
Court explained, derives from a desire on the part of Congress that there be a “single
decisionmaker” with “an overview of all possible ramifications of the regulation of oil tankers to
promulgate [tank vessel regulations] . . . after balancing all the competing interests.” Ray, 435
U.S. at 177.
Applying the Ray-Locke framework, this Court recently ruled that the Commonwealth’s
attempt in 2004 to impose state manning and tug escort requirements on tank vessels in Buzzards
Bay (as part of MOSPA), was preempted by Coast Guard regulations on two grounds. First, the
Court held that the Coast Guard’s revised RNA, consistent with congressional intent, “expressly
preempt[ed] the MOSPA provisions at issue.” United States v. Massachusetts, 724 F.Supp.2d
170, 183 (D. Mass. 2010). See also 72 Fed. Reg. 50,057 (“any other non-Coast Guard schemes
relating to vessel . . . manning, and tug escort requirements in Buzzards Bay are preempted.”).
“Plainly,” the Court observed, “Congress has bestowed broad authority, including the authority
to preempt state law, upon the Coast Guard.” 724 F.Supp.2d at 183.
Second, the court held that the challenged MOSPA provisions were “conflict-preempted
because they st[ood] as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.” Id. at 184. Specifically, the Commonwealth’s enactment of manning
and tug escort standards that diverged from federal standards frustrated the “objective of the
Congress in enacting the PWSA” as a means of establishing a single decisionmaker to “consider
and balance a number of statutory factors” and “establish the proper (as opposed to merely the
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minimum) level of regulation under Title I of the PWSA.” Id. “Allowing the Commonwealth to override the Coast Guard’s judgment in such an instance poses an obstacle to the accomplishments of Congress’ purposes in enacting the statute.” Id. at 186. The grounds articulated by this Court for invalidating the Commonwealth’s 2004 attempt “to override the
Coast Guard’s judgment” apply with equal force to the 2009 Act.
III. Federal Law Preempts the 2009 Act
The 2009 Act’s attempt to regulate tank vessel manning, tug escorts and notification runs inextricably afoul of federal statutes that commit these subjects to the sole discretion of federal authorities, as well as Coast Guard regulations intended to preempt all “non-Coast Guard schemes.” 72 Fed. Reg. 50,057. Sections III.B–D of this memorandum address the operative federal laws and how they preempt the 2009 Act’s pilot, notification and tug escort provisions.
First, however, Section III.A explains why, under the Supremacy Clause, the Commonwealth cannot use an indirect enforcement mechanism (i.e, triple fines in the event of an oil spill) to regulate subject matters that it is preempted from regulating directly.
A. The 2009 Act’s Indirect Regulation of Preempted Subject Matters Violates the Supremacy Clause
The 2009 Act cannot escape federal preemption on the basis that compliance with its manning and notice provisions is “optional.” Despite the absence of language in the Act that makes compliance strictly mandatory, the threat of triple fines exacts the same—if not greater— economic pressure on vessel operators to comply with state standards as would a mandatory fine.6 As the Supreme Court and First Circuit have acknowledged, state regulations that are not
6 The 2009 Act’s triple fines have the potential to reach an astronomical $1,500,000.00 – 6,000,000.00 for each day the MassDEP determines the “violation occurs or continues.” See Mass. Gen. Laws ch. 21L, § 4.
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mandatory are still preempted where they “act to exert pressure on operators in preempted
areas.” United States v. Massachusetts, 493 F.3d 1, 23 (1st Cir. 2007) (discussing Ray, 435 U.S.
at 163-64) (emphasis added). There can be no question that the potentially ruinous triple fines
authorized under the 2009 Act “place[] strong pressure on the industry to change its primary
conduct” contrary to federal law. Id. at 24. See Mot. Summ. J. Ex. A-B.
“What a state cannot do directly, it also cannot do indirectly.” 520 S. Mich. Ave. Assocs.,
Ltd. v. Shannon, 549 F.3d 1119, 1129 (7th Cir. 2008). Courts have applied this principle in
numerous contexts, including preemption. See, e.g., Transcontinental Gas Pipe Line Corp. v.
State Oil & Gas Bd., 474 U.S. 409, 431 (1986) (explaining that, under the Natural Gas Policy
Act of 1978, the federal regulatory scheme leaves no room either for direct state regulation of the
prices of interstate wholesales of natural gas, or for state regulations that indirectly achieve the same result); New York State Conf. of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 668,
514 U.S. 645 (1995) (stating that “indirect economic pressures of a state law could force a party
to adopt a scheme that would be preempted.”); State of Kansas ex rel. Todd v. United States, 995
F.2d 1505, 1510 (10th Cir. 1993) (finding Kansas regulation of FCIC reinsured policies a
preempted “back door” means of doing what it “cannot do directly”—regulate FCIC direct
insurance policies).
Even when states exercise their traditional state powers, this Court has acknowledged
that, under the Supremacy Clause, states cannot use their legitimate authority for the illegitimate
end of regulating preempted subjects indirectly. Grafton & Upton R.R. Co. v. Town of Milford,
337 F. Supp. 2d 233, 238 (D. Mass. 2004) (“a state ‘cannot regulate indirectly through the use of
its eminent domain power what it cannot regulate directly.’”) (quoting Dakota, Minn. & E. R.R.
Corp. v. S. Dakota, 236 F. Supp.2d 989, 1007 (D.S.D. 2002).
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In the PWSA context, the Supreme Court addressed the issue of indirect regulation in
Ray v. Atlantic Richfield Co., 435 U.S. 151, 165 (1978). One of the questions presented in Ray was whether the state of Washington was attempting impermissibly to regulate the field of vessel design—a field reserved exclusively for federal authorities by Congress in PWSA Title II. Id. at
163-64. Those challenging the Washington statute claimed the state was using its lawful authority to enact a tug escort requirement (a power exercised in the absence of federal regulation) to achieve compliance with state vessel design standards by waiving the escort requirement for vessels that satisfied the state design standards. Id. at 173. The Court stated that if “the overall effect of [the tug escort exemption were] to coerce tanker owners into outfitting their vessels with the specified design requirements . . . we might agree that the provision constituted an invalid interference with the Federal Government's attempt to achieve international agreement on the regulation of tanker design.” Id. at 179. The Court concluded, however, that the very low cost of complying with Washington’s tug escort rule was not nearly enough to coerce shipowners into undertaking the far greater expense of either refitting or replacing their vessels to qualify for the escort exemption. Id. The state statute, therefore, did not constitute an indirect regulation of tank vessel design because it did not exert pressure on vessel owners to adopt divergent state standards.
The First Circuit confronted a similar question of indirect regulation in United States v.
Massachusetts, 493 F.3d 1 (1st Cir. 2007). Much like Ray, one of the questions before the Court was whether the Commonwealth was attempting indirectly to regulate in the preempted field of vessel design by using its authority to regulate in other areas. Specifically, the Commonwealth created a one billion dollar financial assurance requirement for tank vessels which could be reduced for vessels that met certain design standards. This Court had enjoined the
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Commonwealth’s scheme as effectively regulating vessel design, stating that “the
Commonwealth's one billion dollar financial assurance requirement imposes such an onerous
financial obligation on a tank vessel owner that it in effect forces compliance with the statutory
exception criteria.” United States v. Massachusetts, 440 F.Supp.2d 24, 46 (D. Mass. 2006)
(Tauro, J). The First Circuit, however, found that while this Court had correctly focused on
whether the financial assurance requirement “places strong pressure on the industry to change its
primary conduct,” there was nothing in the record to support the conclusion that “the practical
effect of the $ 1 billion [financial assurance] rule was to force vessels to seek reductions pursuant
to the exemption scheme.” 493 F.3d at 23. Nevertheless, the Court made clear that, under Ray,
the dispositive question is whether “the state’s requirements act to exert pressure on operators in
preempted areas.” Id. See also Central Valley Chrysler-Plymouth v. Calf. Air Resources Bd.,
No. CV-F-02-5017, 2002 WL 34499459 (E.D. Cal. June 11, 2002) (applying Ray to reject the
argument that state regulation in the preempted field of fuel economy standards is permissible
where “compliance with the contested provisions is optional” but economic factors compel
compliance).
In the case of the 2009 Act, there can be little doubt that the triple fines imposed by the
Commonwealth exert substantial pressure on operators to change their primary conduct in
preempted areas. The fines that can be “triple[d]” under the Act are set forth in sections 4(a)-(c)
as a schedule of penalties that increase with the level of fault and damage associated with a given
“environmental violation.” Mass. Gen. Laws 21L, § 4. For example, if the Commonwealth
determines that an organization that owns a vessel acted recklessly in connection with an oil spill
in Buzzards Bay, and a person is seriously injured in the process, it “shall be subject to a civil penalty” of $500,000.00 per day for a first violation, or $2,000,000.00 per day for a second
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offense. Id. at § 4(a) and (d). However, the vessel owner “shall be assessed triple the fines” if it
has not complied with the Commonwealth’s notice and pilotage standards, even if the vessel had
satisfied the corresponding federal standards. Id. at § 4(f). In such cases, the fines could range
between $1,500,000.00 and $6,000,000.00 for each day the “violation occurs or continues”
according to MassDEP. Id. at § 4(d). Even if the duration of the violation is limited to an
efficient ten-day cleanup period,7 fines could total $15,000,000.00 - $60,000,000.00.8
Fines of this magnitude pose an enormous risk for shipowners—especially for the individuals and smaller owner/operators subject to the 2009 Act. As a result, the Act succeeds in its intended purpose: It compels vessels to depart from federal standards in favor of the
Commonwealth’s policies to avoid triple fines in the event of a casualty, even though the state
rules are expressly preempted and clearly deviate from federal judgments on the appropriate
standards for manning, notification and tug escorts. Mot. Summ. J. Ex. A-B. The 2009 Act is thus markedly different from the vessel design exceptions to the tug escort provision in Ray and the financial assurance provision in United States v. Massachusetts. The mere waiver of a tug escort requirement, or the reduction of an industry-standard financial assurance requirement, is not a sufficient inducement to spend enormous sums to replace or refit vessels to conform to design requirements. The threat of enormous daily fines in the event of an oil spill, however, quite clearly is sufficient to compel compliance with the Commonwealth’s 24-hour notice and
7 After the Nord Pacific spilled 15,350 barrels of oil in Corpus Christi Harbor in 1988, the ten-day cleanup effort was considered quite “short” and attributed to “a highly efficient cleanup operation.” John Harper et al., Costs Associated with the Cleanup of Marine Oil Spills, International Oil Spill Conference, http://www.iosc.org/papers/ 00410.pdf.
8 The magnitude of such fines must be understood as potentially cumulative with the severe criminal penalties the Commonwealth can impose for the same violation (see Mass. Gen. Laws ch. 21L, § 2), as well as federal liability under the Oil Pollution Act of 1990. 33 U.S.C. § 2701, et seq.
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pilotage rules.9 The 2009 Act, therefore, is not simply a voluntary set of safety procedures; it is
an aggressive endeavor to induce compliance with state standards that deviate from, and are
expressly preempted by, federal law. It is an attempt to circumvent operation of the Supremacy
Clause and the rulings of this court, and should be invalidated as such. In areas as important and extensively occupied by the federal government as tank vessel safety, and marine environmental protection, nullification of the authority of the United States and the judgment of its agencies
would severely compromise the very goals the Commonwealth purports to champion.
B. The 2009 Act’s State Pilot Provisions Are Preempted
The Commonwealth’s attempt to impose state-licensed pilots on coastwise vessels in the
2009 Act—much like the 2004 attempt invalidated by this Court in 2006—blatantly contravenes federal law. Most notably, the state pilot provisions at Mass. Gen. Laws ch. 21L, § 4(f) and ch.
21M, § 9(b) are preempted by 46 U.S.C. §§ 8501(d) and 8502(a) that require vessels enrolled in
the coastwise trade to be under the control of a federal pilot and prohibit state pilotage of such
vessels. Moreover, the Commonwealth’s state pilot provisions are preempted by Coast Guard
regulations—both expressly and by virtue of a conflict—that establish the operative pilot
standard for tank vessels in Buzzards Bay.
1. 46 U.S.C. § 8501(d) Expressly Preempts the Commonwealth’s State Pilot Rules
Since the early days of the Republic, Congress has legislated extensively in the field of
vessel manning—especially the subject of pilotage—to guard against casualties by establishing
standards for pilots, and by making the distribution of state and federal jurisdiction over pilotage
9 Moreover, unlike positive incentives and inducements (like the exemptions from lawfully enacted state rules in Ray and United States v. Massachusetts, the civil fines in the 2009 Act are punitive and, therefore, per se coercive. Law v. National Collegiate Athletic Ass'n, 134 F.3d 1438, 1443 (10th Cir. 1998) (“A civil fine is by definition either compensatory or coercive. The Supreme Court has made this plain.”).
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perfectly clear. See Anderson v. Pac. Coast S.S. Co., 225 U.S. 187, 196 (1912); Jackson v.
Marine Exploration Co., Inc., 583 F.2d 1336, 1340 -1341 (5th Cir. 1978). Indeed, the antecedents of today’s pilotage scheme reach back to the first Congress. Act of August 7, 1789, ch. 9, 1 Stat. at L. 53 (1789). Under this scheme, the federal government allows the states generally to retain authority over the pilotage of “registered” vessels (i.e., vessels engaged in the foreign trade), while federal authorities have exclusive authority over the pilotage of “enrolled” vessels (i.e., vessels engaged in domestic “coastwise” trade and fishing). Jackson v. Marine
Exploration Co., Inc., 583 F.2d 1336, 1340 -1341 (5th Cir. 1978); Davis v. Barge “TMT”
Jacksonville, 484 F. Supp. 52 (M.D. Fla. 1979). As currently drafted, federal law dictates that enrolled tank vessels “shall be under the direction and control of a pilot licensed under [federal laws],” 46 U.S.C. § 8502(a), and that “[a] state may not adopt a regulation that requires a coastwise vessel to take a pilot licensed or authorized by the laws of a State if the vessel is [an enrolled vessel].” 46 U.S.C. § 8501(d) (emphasis added). “Any regulation or provision violating this section is void.” § 8501(e).
The Commonwealth’s attempt to impose state pilots on enrolled vessels in Buzzards Bay violates a venerable, expressly preemptive, statutory scheme adopted by Congress. Under the
Commonwealth’s 2009 Act, tank vessels of a certain size, whether they are enrolled or registered, are subject to “triple the fines” in the event of an oil spill if they fail to request a
Massachusetts licensed pilot. Mass. Gen. Laws ch. 21L, § 4(f) and ch. 21M, § 9(b). The
Commonwealth’s pilot provisions for Buzzards Bay were designed to evade preemption under
46 U.S.C. § 8501(d) on the theory that they do not really constitute a “regulation that requires a
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coastwise vessel to take a pilot licensed” by Massachusetts—that the state pilot is voluntary.10
Such a theory fails on at least three grounds.
First, the federal courts, including the U.S. Supreme Court, have consistently interpreted the federal pilotage statutes to mean that “[t]he federal government has assumed exclusive authority over the regulation of pilots on Enrolled vessels.” Jackson, 583 F.2d at 1341; Ray,
435 U.S. at 159 (“The Court has long held that these two statutes read together give the Federal
Government exclusive authority to regulate pilots on enrolled vessels and that they preclude a
State from imposing its own pilotage requirements upon them.”); id. (“States may not regulate the pilots of enrolled vessels”) (emphasis added). It would defy reason to suggest that Congress gave federal authorities exclusive power over enrolled vessel pilotage, but only the power to enact simple mandates, leaving the states free to enact more complex rules that achieve the same or similar ends.
Second, for the reasons discussed in Section III.A, the Commonwealth cannot use the artifice of indirect regulation to circumvent federal laws that, in this case, (1) delineate state and federal jurisdiction over pilotage; and (2) establish operative pilotage rules and standards. There is simply no constitutional distinction between direct regulation of tank vessels, noncompliance with which would trigger a fine, and indirect regulation, noncompliance with which would trigger a triple fine in the event of an oil spill; in both cases, economic pressure is applied by the state to shoulder aside federal standards.
10 This provision of the 2009 Act was devised in response to this Court’s invalidation under the Supremacy Clause of Mass. Gen. Laws c. 103, §§ 21 & 28, requiring enrolled tank vessels to “take on and employ” a Massachusetts- licensed pilot when traveling through certain Massachusetts waters. United States v. Massachusetts, 440 F.Supp.2d 24, 35 (D.Mass. 2006) (Tauro, J). The Commonwealth did not appeal from this ruling, apparently conceding its validity. Reply Brief, United States v. Massachusetts, No. 06-2361, at 1 (1st Cir. Mar. 30, 2007).
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Third, even if the state’s scheme were truly voluntary, any program that puts a congressionally mandated federal pilot in the position of vying with a state pilot for control of a tank vessel under way is incompatible with federal law which requires enrolled tank vessels to be
“under the direction and control of a pilot licensed under [federal laws].” 46 U.S.C. § 8502(a)
(emphasis added). The 2009 Act’s implementing regulations make clear that the purpose of the state pilot provision is to have a “State Pilot to guide such vessel into or within Buzzards Bay.”
314 CMR 19.01. There is, perhaps, no scenario that better illustrates the danger of neglecting the supremacy of federal law in this context than the image of two pilots—one state, one federal— competing for control of a tanker carrying oil through Buzzards Bay. It is well-understood that
“as a vessel enters a port, the tolerances for error grow smaller,” making it critical that the vessel’s master and crew work in perfect concert with “the compulsory pilot giving orders.”
Osprey Ship Management, Inc. v. Foster, No. 1:05CV390, 2008 WL 4371376, *14 (S.D. Miss.
Sept. 18, 2008) aff’d, 387 Fed.Appx. 425 (5th Cir. 2010). While the master of the vessel is ultimately in command, the pilot’s temporary control, as well as the advice he provides, must be both sound and unwavering. Id. It would be an intolerable circumstance, therefore, for a tank vessel to be subject to conflicting directions and debate from multiple pilots at moments when consistent, reliable guidance is most urgently needed.11 This is the circumstance the
Commonwealth seeks to impose, perhaps unwittingly, on vessels in Massachusetts waters. The
2009 Act’s state pilot provision must be invalidated and its enforcement enjoined.
11 While this point is relevant as context for the express preemption language in 46 U.S.C. § 8501(d), it also forms an independent basis of preemption. Namely, the Commonwealth’s state pilot provision is conflict-preempted by 46 U.S.C. § 8502(a), which requires coastwise tank vessels to “be under the direction and control of a pilot licensed under [federal law].” It is impossible to comply with both this federal directive and the Massachusetts rule which cedes some—if not all—direction and control to a state pilot. Even if this were not a conflict of the “impossibility” variety, the state law, at a minimum, frustrates the purpose of the federal law.
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2. The Commonwealth’s State Pilot Rule is Preempted by Coast Guard Regulations
The state pilot provisions of the 2009 Act are also preempted by U.S. Coast Guard
regulations that establish exclusive pilot standards for tank vessels traversing Buzzards Bay. 33
C.F.R. § 165.100(d)(5)(iii); 72 Fed Reg. 50,056-57. “The Supreme Court has twice decided that
Congress granted the Coast Guard the authority under Title I to establish the proper (as opposed
to merely the minimum) level of regulation” for vessel traffic subjects like pilotage. United
States v. Massachusetts, 724 F.Supp.2d 170, 184 (D. Mass. 2010) (citing Ray, 435 U.S. at 178;
Locke, 529 U.S. at 109-110). Therefore, when the Coast Guard enacts exclusive pilotage standards under Title I, states are barred from imposing divergent regulations.
In this case, the 2009 Act’s state pilot rule is preempted by the Coast Guard manning standards for tank vessels in Buzzards Bay. Those rules state, in relevant part, the following:
Each single hull tank barge transiting Buzzards Bay and carrying 5,000 or more barrels of oil or other hazardous material must be under the direction and control of a pilot, who is not a member of the crew, operating under a valid, appropriately endorsed Federal first class pilot’s license issued by the Coast Guard (“federally licensed pilot”). Pilots are required to embark, direct, and control from the primary tug during transits of Buzzards Bay.
33 C.F.R. § 165.100(d)(5)(ii) (emphasis added).
This rule embodies several determinations about the appropriate pilot standards for tank vessels in Buzzards Bay. First, the Coast Guard considered and rejected suggestions “that state- licensed pilots be required in addition to or in place of federally licensed pilots.” 72 Fed. Reg.
50,054. Regulations to this effect would be so “contrary to the generally applicable
Congressional scheme for state-federal pilotage of vessels” (i.e., 46 U.S.C. §§ 8501 and 8502)
that the Coast Guard determined, even if such rules were appropriate, “it is without authority to”
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enact them. Id. Second, the Coast Guard deliberately exempted double-hull vessels from these
requirements, noting that “a federally licensed pilot,” in addition to “[m]andatory participation in
a Vessel Movement Reporting System . . . constitutes a redundant vessel accident and pollution
prevention system that will provide a sufficient measure of safety for tank vessels transiting
Buzzards Bay.” Id. at 50,055.12 As the Coast Guard stated explicitly, the “affirmative decisions
. . . to require a federally licensed pilot in addition to the normal crew aboard a tug towing a single hull tank barge through Buzzard’s Bay, but not to require any other modifications to the
applicable manning requirements . . . represent a considered determination of the appropriate
level of regulation to ensure navigation safety and environmental protection.” Id. at 50,057
(emphasis added). “As such, the Coast Guard has determined that any other non-Coast Guard
schemes relating to vessel . . . manning . . . are preempted.” Id.
The state pilot provisions of the 2009 Oil Spill Act constitute precisely the kind of “non-
Coast Guard scheme[] relating to vessel . . . manning” that the Coast Guard expressly preempted.
They are invalid under the Supremacy Clause, therefore, by virtue of their existence. In addition,
the Commonwealth’s state pilot rules are preempted on the basis that they conflict with Coast
Guard regulations. The state rules seek to modify federal manning standards by using the threat
of triple fines to compel “tank vessel[s] carrying 6,000 or more barrels of oil” that are
“unaccompanied by a tugboat escort” to “request a state pilot.” Mass. Gen. Laws ch. 21L, § 4(f)
and ch. 21M, § 9(b). This rule conflicts with the Coast Guard’s judgment that the imposition of
12 Under this system, double-hull tank vessels are subject to the general, federal rule for pilotage that “coastwise seagoing tank barges” “must be under the direction and control of an individual qualified to serve as pilot” under Coast Guard regulations. 46 C.F.R. § 15.812(a); 46 U.S.C. § 8502(a). The “Special Buzzards Bay regulations” supplement this rule for “single hull tank barge[s] transiting Buzzards Bay” and bar “any other modifications to the applicable manning requirements.” 33 C.F.R. § 165.100(d)(5)(iii); 72 Fed. Reg. 50,057.
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“state-licensed pilots . . . in addition to, or in place of, federally licensed pilots” is neither
appropriate, nor consistent with congressional intent. 72 Fed. Reg. 50,054.
The state rule also conflicts with federal judgments about the appropriate manning
standards for double-hull vessels. Because federal law exempts double-hull tank barges from
escort requirements in Buzzards Bay, the Commonwealth’s pilot rule targeting “unaccompanied”
vessels is specifically designed to fill what it perceives to be a “gap” in the federal standard with
regard to double-hull vessels. States are strictly prohibited from modifying federal standards in
this way. “The Supremacy Clause dictates that the federal judgment that a vessel is safe to
navigate United States waters prevail over a contrary state judgment.” Ray, 435 U.S. at 165. See also United States v. Massachusetts, 724 F.Supp.2d. 170, 185 (“Allowing the Commonwealth to override the Coast Guard’s judgment in such an instance poses an obstacle to the accomplishments of Congress’ purposes in enacting the [PWSA].”). The Commonwealth’s state pilot regulations, therefore, must yield to federal law.
C. The 2009 Act’s Notification Provisions Are Preempted
The comprehensive federal notification scheme for tank vessels traversing Buzzards Bay preempts the 2009 Act’s divergent rules. As with any state vessel traffic rule, the “pertinent inquiry” in determining whether the state rule is valid under the Supremacy Clause is “whether the [Coast Guard] has addressed and acted upon the [same] question.” Ray, 435 U.S. at 174.
Because “federal authorities have indeed dealt with the issue of [notification] and have
determined whether and in what circumstances” notice is required, the state rule is conflict-
preempted and “may not be enforced.” Id. at 175. Furthermore, the Coast Guard has expressly
preempted the Commonwealth’s notification rule.
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Under the PWSA, as amended, the Coast Guard is authorized to “construct, operate, maintain, improve or expand [Vessel Traffic Services (“VTS”)] in any port or place under the jurisdiction of the United States.” 59 Fed. Reg. 36316 (July 15, 1994). The PWSA “requires certain designated vessels which operate in a VTS area to utilize and comply with the VTS.” Id.
And in 1994, the Coast Guard made participation in all Vessel Traffic Services mandatory. In doing so, it stated unequivocally:
VTS operating procedures are a matter for which regulations should be developed on the national level, to avoid unreasonably burdensome variances and confusion in applicability and operating requirements. These regulations which provide uniform VTS operating requirements are intended to preempt States from adopting similar requirements.
59 Fed. Reg. 36316, 36321 (July 15, 1994).
As part of the federal VTS, the U.S. Coast Guard and the U.S. Army Corps of Engineers developed a Vessel Movement Reporting System (“VMRS”), especially for Buzzards Bay, that is “used to monitor and track vessel movements . . . by requiring that vessels provide information under established procedures” to a federal “Vessel Traffic Center.” 33 C.F.R. § 161.15(a). The
VMRS requires “[e]nhanced communications” with federal authorities whereby “[e]ach vessel engaged in towing a tank barge must communicate . . . and issue security calls . . . upon approach to” various points, including “Buzzards Bay Entrance Light” and “Buzzards Bay Midchannel
Lighted Buoy.” 33 C.F.R. § 165.100(d)(2). Tank vessels in Buzzards Bay must also
“communicate on the designated vessel bridge-to-bridge radiotelephone frequency” any
“intended navigation movements” to be made “[b]efore meeting, crossing, or over-taking any other VMRS user in the area.” Id. at § 165.100(d)(5)(iv)(A)(5). Most significantly, as part of this ongoing dialogue with the Vessel Traffic Center, Coast Guard regulations specify that a
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“VMRS Buzzards Bay user must . . . [n]ot enter or get underway in the area without first
notifying the VMRS Center.” 33 C.F.R. § 165.100(d)(5)(iv)(A)(1).
Despite the existence of federal notification rules “intended to preempt States from
adopting similar requirements,” 59 Fed. Reg. 36321, the Commonwealth has sought to create its
own separate notification rules for Buzzards Bay. The 2009 Act provides that “triple the fines”
will be imposed in the event of an oil spill for a “tank vessel carrying 6,000 or more barrels of oil
within Buzzards Bay” that fails to “provide 24-hour notice . . . in a manner to be determined by
[MassDEP], of the owner or operator’s intent to enter or operate such vessel in Buzzards Bay.”
Mass. Gen. Laws ch. 21L, § 4(f) and ch. 21M, § 9(a). As currently implemented by MassDEP, vessel operators must communicate a series of information, including:
(a) name and number of the caller, if telephone notice is provided; (b) name, address, and telephone number of the owner or operator of the Tank Vessel; (c) name of the Tank Vessel, type of Tank Vessel, type of oil, quantity of oil (reported in barrels), hull construction (single, double, or other); (d) current location of the Tank Vessel; (e) port of departure and destination of the Tank Vessel; (f) estimated time of the Tank Vessel’s entrance into the Buzzards Bay; and (g) whether the Tank Vessel is otherwise required by law to, and will engage a Tugboat Escort to transit Buzzards Bay.
314 CMR 19.04. In the future, the MassDEP Administrator may require more extensive
communications between vessel operators and state officials, as authorized under the 2009 Act.
The 2009 Act thus deviates from what federal authorities deemed “the appropriate level
of regulation” in at least two ways: First, it pressures vessel owners to provide notice on an often
impractical 24 hours basis, as opposed to the more flexible federal notification standard. The 24-
hour time constraint may have the effect of discouraging vessels from changing their course to
one that traverses Buzzards Bay, even when prudent seamanship would otherwise so indicate,
and despite weather conditions or other safety considerations, unless they can make the
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necessary judgment to alter their itinerary 24 hours in advance. Second, it authorizes MassDEP to adopt implementing regulations calling for communications with a state agency that overlap
with the extensive dialogue VMRS users must conduct with federal authorities.
For the same reasons set forth in sections III.A, the Commonwealth cannot defend its
notification rules on the theory that they are “voluntary.” Nor can the Commonwealth justify them on the ground that they are comparable to existing federal requirements. As the Court held in Locke, it is not “a sufficient answer to a claim of pre-emption to say that state rules supplement, or even mirror, federal requirements.” Locke, 529 U.S. at 115. “On this point,” the
Court said, “Justice Holmes’ later observation is relevant: “[W]hen Congress has taken the particular subject matter in hand coincidence is as ineffective as opposition, and a state law is not
to be declared a help because it attempts to go farther than Congress has seen fit to go.” Id.
(quoting Charleston & Western Carolina Ry. Co. v. Varnville Furniture Co., 237 U.S. 597, 604
(1915)).13
The Coast Guard made the affirmative decision that vessels transiting Buzzards Bay
should be “monitor[ed] . . . via the Vessel Movement Reporting System,” establishing one dialogue with one federal authority “to avoid unreasonably burdensome variances and confusion in applicability and operating requirements.” 59 Fed. Reg. 36,321; 72 Fed. Reg. 50,055-57.
Consequently, the 2009 Act’s 24-hour notice rule is (1) expressly preempted because the Coast
Guard has stated its regulations are “intended to preempt States from adopting similar requirements”; and (2) conflict-preempted because “federal authorities have indeed dealt with
13 The Locke Court confronted a similar 24-hour notification rule and signaled to the lower court that, on remand, there were “substantial arguments” that this and other “regulations are preempted as well.” 529 U.S.at 116.
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the issue of [notification] and have determined whether and in what circumstances” notice is required. 59 Fed. Reg. 36,321; Ray, U.S. at 175.
D. The 2009 Act’s Tug Escort Provisions Are Preempted
The U.S. Coast Guard has established a tug escort standard for tank vessels traversing
Buzzards Bay that preempts the Commonwealth’s divergent escort rules in the 2009 Act. “The relevant inquiry under [PWSA] Title I with respect to the State’s power to impose a tug escort rule is . . . whether the [Coast Guard] has either promulgated [its] own tug requirement . . . or has decided that no such requirement should be imposed at all.” Ray, 435 U.S. at 172 accord, Locke,
529 U.S. at 109; United States v. Massachusetts, 493 F.3d 1, 19 (1st Cir. 2007); 724 F.Supp.2d at
182.14 There is no dispute in this case that the Coast Guard has promulgated its own tug escort standard for Buzzards Bay. The state rule is thus conflict-preempted. Moreover, the Coast
Guard has stated expressly that its rules “represent a considered determination of the appropriate level of regulation to ensure navigation safety and environmental protection” and, “[a]s such, any other non-Coast Guard schemes relating to . . . tug escort requirements in Buzzards Bay are preempted.” 72 Fed. Reg. 50,056-57. The Commonwealth’s compulsory tug escort requirements constitute a “non-Coast Guard scheme” and are, therefore, also expressly preempted.
Under Coast Guard regulations, “each single hull tank barge transiting Buzzards Bay and carrying 5,000 or more barrels of oil or other hazardous material must, in addition to its primary
14 As Defendants acknowledge, this Court “conclud[ed] that the Coast Guard has authority to engage in express preemption under Title I,” and that, with regard to “state escorts,” “the Coast Guard through its 2007 Final Regulation for Buzzards Bay ha[s] done so.” Dkt# 12, at 17. In addition, the Coast Guard Authorization Act, as this Court has acknowledged, “specifically orders the Coast Guard to ‘promulgate regulations for towing vessels and barge safety for the waters of the Northeast.’” 724 F.Supp.2d at 183 (quoting Pub. Law 105-383 § 311(b)(1)(a) (January 27, 1998)).
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tug, be accompanied by an escort tug of sufficient capability to promptly push or tow the tank barge away from danger of grounding or collision . . . .” 33 C.F.R. § 165.100(d)(5)(ii) (emphasis added). The 2009 Act seeks to modify this standard by requiring state authorities to “dispatch a state-provided tugboat escort to every tank vessel carrying 6,000 or more barrels of oil while entering or operating in Buzzards Bay which is otherwise unaccompanied by a tugboat escort.”
Mass. Gen. Laws ch. 21M, § 9(d) (emphasis added). Like the state pilot provisions of the 2009
Act, this rule seeks to supplant federal standards that consciously, deliberately, and expressly exempt double-hull vessels from tug escort requirements. 72 Fed. Reg. 50,056-57 (discussing the Coast Guard’s “affirmative decisions . . . to require an escort tug in addition to the primary tug, for all single hull tank barges transiting Buzzards Bay, but not for other vessels.” (emphasis added)). As such, the Commonwealth’s 2009 tug escort rule is conflict preempted, not only because there is a federal rule governing the same subject, but also because it contravenes the
Coast Guard’s judgment on the appropriate level of regulation for double-hull vessels. 724
F.Supp.2d at 178 (quoting Ray, 435 U.S. at 178) (finding the 2004 tug escort rule conflict preempted because “the decision of the Coast Guard not to exercise its authority to require tug escorts for double-hull tank barges . . . has the ‘character of a ruling that no such regulation is appropriate or approved pursuant to the policy of the statute.”).
In its prior Motion to Dismiss, the Commonwealth claimed that its compulsory tug escort is not really “mandatory” or a “requirement” because it is financed by the state. Dkt# 12, at 18.
There is, however, no legal basis for the suggestion that a statutory requirement must be financially costly to be a “requirement.” Nobody would say, for example, that a state statute mandating immunizations created no “requirement” simply because the inoculations were state- funded. In this case, the Act provides: “The commissioner shall dispatch a state-provided
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tugboat escort to every tank vessel . . . otherwise unaccompanied.” Mass Gen. Laws ch. 21M, §
9(d). Vessels do not have the option of declining the tug escort. They “shall” be dispatched and
vessels must accept the imposition of having a vessel shadow their movements. Indeed,
MassDEP has made clear that regulations implementing the 2009 Act “require certain vessels to
engage the services of a Tugboat Escort” and that tank vessels have an “obligation” under the
“Tug Escort Requirement.” 314 CMR 19.01(2) and 19.03(1) (emphasis added).
Moreover, while the Commonwealth’s tug escort is “state-provided,” the imposition of a tug escort is not without its costs and impacts on tank vessel operations. First, under the state scheme, the MassDEP Commissioner is required to “[p]osition each State-provided Tugboat
Escort to maintain a maximum distance of ¼ (one fourth) of a nautical mile from the assigned
Target Vessel.” 314 CMR 19.06(2)(b) (emphasis added). Operating tankers in such close proximity to other vessels—especially vessels that shadow the tanker’s movements—increases the risk of a casualty. See, e.g., Crowley Marine Serv., Inc. v. Maritrans, Inc., 530 F.3d 1169
(9th Cir. 2008) (involving the collision of an oil tanker with one of its two escort tugs while operating in close proximity in Puget Sound); Seaboard Tug & Barge, Inc. v. Rederi AB/Disa,
213 F.2d 772, 775 (1st Cir. 1954) (acknowledging that “the proximity of [two] vessels and the slow speed and lack of maneuverability of the tug-barge unit” increases risk). Second, the
Commonwealth’s tug escort requirement entails extensive communications between tank vessel operators and tug operators and pilots that distract from normal vessel operations and thus augment both risk and cost. 314 CMR 19.03(4) (requiring a detailed “Pre-escort Conference”
“[p]rior to commencing an escort transit”).
In addition, when a tank vessel operator does not request a state pilot to board its vessel, the Act authorizes the Commissioner to dispatch one aboard a “state-provided tugboat escort”
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from where the pilot is directed to “monitor” the tank vessel and send unsolicited
communications to the “tank vessel operator” on “navigational issues.” Mass. Gen. Laws ch.
21M, § 9(c). The Act directs the state pilot, or the “operator of a state-provided tugboat escort,”
to police and critique the tank vessel, calling for a “report” on “all near and actual navigational
incidents” including whether vessels adhere to the NOAA recommended route—a route Coast
Guard regulations recommend, but deliberately do not require because, in many instances,
“prudent seamanship (and the Rules of the Road) may dictate departure from any given vessel
route.” 72 Fed. Reg. 50,055-57. In fact, the Coast Guard expressly preempted any scheme that
departs from its judgment “[n]ot to institute mandatory ship routes, but to monitor use of the
existing recommended routes via the [VMRS].” Id.15
The Commonwealth’s 2009 Act obliges vessel masters to navigate massive tank vessels
in close proximity to other vessels, regardless of their best judgment or wishes, and requires
them to conduct conferences and maintain close communications with state pilots and tug
operators. There is simply no merit to the argument that the 2009 Act’s tug escort rules do not
“impose any regulatory requirements” on tank vessel operators. Dkt #12, at 13. More to the point, regardless of the extent to which the 2009 Act obliges vessel operators to alter their operational behavior, the Act is clearly the kind of “non-Coast Guard scheme[] relating to . . . tug escort requirements in Buzzards Bay” that the United States expressly preempted. 72 Fed. Reg.
50,057. Like the 2009 Act’s state pilot and notification rules, therefore, the Commonwealth’s
15 The Coast Guard made clear that it “wishes to avoid creating any situation in which a mariner may feel constrained to follow a set route when conditions may warrant an alternate approach.” 72 Fed. Reg. 50,055 (emphasis added). To the extent that the 2009 Act seeks to pressure vessels to adhere to the recommended route, it is preempted by the Coast Guard routing rule for Buzzards Bay.
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tug escort rules are invalid under the Supremacy Clause and their enforcement should be enjoined.
CONCLUSION
For the foregoing reasons, the Court should grant the Plaintiffs’ Motion for Summary
Judgment and issue a Permanent Injunction to enjoin Mass. Gen. Laws ch. 21L, § 4(f) and ch.
21M, § 9.
DATED this 28th day of January, 2011.
Respectfully Submitted,
/s/ C. Jonathan Benner C. Jonathan Benner (pro hac vice) Jeffrey Orenstein (pro hac vice) REED SMITH LLP 1301 K Street, N.W., Suite 1100 Washington, DC 20005-3373 Telephone: 202-414-9200 Facsimile: 202-414-9299 [email protected] [email protected]
George J. Skelly (No. 546797) NIXON PEABODY LLP 100 Summer Street Boston, MA 02110 Telephone: 617-345-1000 Facsimile: 866-294-7517 [email protected]
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CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on January 28,
2011.
Respectfully submitted,
/s/ Jeffrey Orenstein Jeffrey Orenstein (pro hac vice) REED SMITH LLP 1301 K Street, N.W., Suite 1100 Washington, DC 20005-3373 Telephone: 202-414-9200 Facsimile: 202-414-9299 [email protected]