Seeking declaratory and injunctive relief, the International Association of Independent Tanker Owners (INTERTANKO), a trade association of tanker operators, brought suit in 1996 against Washington State and local enforcement officials who enforced Washington's Best Achievable Protection (BAP) Regulations. INTERTANKO challenged the constitutionality of the BAP Regulations by asserting that federal regulations and maritime law preempted its provisions: "Article VI of the Constitution provides that the laws of the United States shall be the supreme law of the land;... State laws notwithstanding." RITERTANKO founded its preemption theory upon: (1) conflict preemption, whereby a State law is invalid if it stands as an obstacle to the accomplishment of the full objectives of Congress; (2) field preemption, whereby federal regulation of oil tankers dominates the entire subject; (3) express preemption, whereby the BAP Regulations are expressly forbidden by federal statutes some of which authorize the Coast Guard rather than States to act in this field; and (4) that the BAP Regulations violate the Commerce Clause. In the spring of 2000, the Supreme Court handed down its ruling in United States v. Locke. Regarding a state's ability to regulate oil tanker traffic by utilizing provisions of the Oil Pollution Act of 1990 (OPA), the Court pronounced a number of holdings. Specifically, the Court examined Washington's BAP tanker regulations and found that some of the regulations are preempted; as to the balance of the regulations, the Court remanded the case so that the validity of the BAP Regulations may be assessed in light of the considerable federal interest at stake. Each of the BAP Regulations will be discussed in this Comment. Washington provides a prime example for other coastal states of the need for aggressive tanker regulation. It encompasses some of the country's most significant waterways and its rocky Pacific coast presents treacherous grounding points for any wayward tanker. Of premier importance to Washington's coastal environment is Puget Sound, a body of water spanning some 2,500 square miles which connects with the Pacific by way of the Strait of Juan de Fuca, a twelve-mile wide channel reaching sixty-five miles into the state's interior. The sound and strait are busily and continuously plied by water traffic that includes small fishing vessels, cargo ships, naval vessels, oil tankers, and barges destined for Washington or Canada. The size and quantity of oil transport vessels have increased dramatically in the last fifty years; oil tankers averaged 16,000 tons of carriage in the 1940s, while numerous tankers exceeded 175,000 tons of carriage in the 1970s. Of all the world's merchant vessels in 1998, tankers numbered 6,739. The profound increase in size and quantity of oil transport vessels has led Washington's environmentalists to seek comprehensive tanker regulation. In addition to examining the Supreme Court's decision regarding Washington's BAP Regulations, this Comment will also review the earlier treatment of the BAP regulations and two other state plans to regulate oil tankers plying their waters, discuss admiralty law, and examine state utilization of OPA to regulate tanker vessels.
Paul H. Avery,
State Oil Spill Prevention Laws And Intertanko: When Is State Law Preempted?,
Ocean & Coastal L.J.
Available at: http://digitalcommons.mainelaw.maine.edu/oclj/vol6/iss1/6