NAVIGATING THROUGH US FEDERAL AND STATE - PowerPoint Presentation

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NAVIGATING THROUGH US FEDERAL AND STATE ENVIRONMENTAL LAWS AND REGULATIONS

UNITED STATES MARITIME LAW ASSOCIATIONFALL MEETING BERMUDA 2015

CHARLES B. ANDERSON

SKULD NORTH AMERICASlide2

“The laws of the United States…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."  

U.S. Constitution, Article VI, Clause 2Slide3

“Powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  

U.S. Constitution, Tenth AmendmentSlide4

"Those powers, unless constrained or displaced by the existence of federal authority or by proper federal enactments, are often exercised in concurrence with those of the National Government."

Intertanko v. Locke, 529 U.S. 89, 105, 2000 AMC 913, 923 (2000)Preemption analysis therefore begins with the assumption that the historic police powers of the states are not superseded by a federal law absent a "clear and manifest purpose of Congress." Ray v. Atlantic Richfield Co., 435 U.S. 151, 157 (1978)Slide5

State law is preempted if:

1) Congress has explicitly stated in the statute that state law is preempted (express preemption); 2) Federal law makes clear that Congress has implicitly intended to occupy the field (field preemption); or 3) State law actually conflicts with a federal law (conflict preemption)Compliance with both federal and state regulations is a physical impossibility (impossibility preemption) State law interferes with the methods by which the federal statute was designed to reach its goal (obstacle preemption

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Addresses conflicts between federal common law and federal statutesInvolves an

assessment of the scope of the legislation and whether the scheme established by Congress addressed the problem formerly governed by federal common lawFederal courts may fill gaps in a federal regulatory scheme but may not do so where judicial action would frustrate the federal schemeFederal maritime law enjoys greater latitude: “[a]bsent a relevant statute, the general maritime law, as developed by the judiciary, applies.” East River Steamship v. Delaval, 476 US 858, 1986 AMC 2027 (1986)DISPLACEMENTSlide7

(a) Nothing in this Act or the Act of March 3, 1851 shall --

affect, or be construed or interpreted as preempting, the authority of any State or political subdivision thereof from imposing any additional liability or requirements with respect to-(A) the discharge of oil or other pollution by oil within such State; or(B) any removal activities in connection with such a discharge; oraffect, or be construed or interpreted to affect or modify in any way the obligations or liabilities of any person under the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) or State law, including common law.Oil Pollution Act of 1990, 33 USC §2718(a)Slide8

(c) Additional requirements and liabilities; penalties 

Nothing in this Act *** shall in any way affect, or be construed to affect, the authority of the United States or any State or political subdivision thereof— to impose additional liability or additional requirements; orto impose, or to determine the amount of, any fine or penalty (whether criminal or civil in nature for any violation of law;  relating to the discharge, or substantial threat of a discharge, of oil. Oil Pollution Act of 1990, 33 USC §2718(c) Slide9

(e) Admiralty and maritime law Except as otherwise provided in this Act

, this Act does not affect-admiralty and maritime law; orthe jurisdiction of the district courts of the United States with respect to civil actions under admiralty and maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled. Oil Pollution Act of 1990, 33 U.S.C. §2751(e).  Slide10

“Placement of the savings clauses in Title I of OPA suggests that Congress intended to preserve state laws of a scope similar to the matters contained in Title I of OPA. . . . The evident purpose of the savings clauses is to preserve

state laws which, rather than imposing substantive regulation of a vessel's primary conduct, establish liability rules andfinancial requirements relating to oil spills."  Intertanko v. Locke, 529 U.S. 89, 105, 2000 AMC 913, 923 (2000)Slide11

For Preemption:

"[W]hen a court considers a state-law claim concerning interstate water pollution that is subject to the CWA, the court must apply the law of the State in which the point source is located….[a]pplication of an affected State's law to an out-of-state source would . . . undermine the important goals of efficiency and predictability in the permit system."“After examining the CWA as a whole, its purposes and its history, we are convinced that if affected States were allowed to impose separate discharge standards on a single point source, the inevitable result would be a serious interference with the achievement of the "full purposes and objectives of Congress.”International Paper Co. v. Ouellette, 479 US 481, 487, 494 (1987)POLLUTION DAMAGESlide12

“These provisions [Sections 2718(a) and (c)] evince Congress' intent to preserve the States' police power to govern pollution discharges within their territorial waters. The Court does not read as them giving States the power to govern out-of-state conduct affecting multiple states. In other words, although Congress has expressed its intent to not

preempt state law, this intent does not delegate to the States a power that the Constitution vested in the federal government.” Oil spill by the Oil Rig Deepwater Horizon, 808 F. Supp. 2d 943, 2011 AMC 2220 (E.D. La.)Slide13

“OPA's § 2718(a)(1)(A) explicitly prevents preemption of state law liability for ‘the discharge of oil or other pollution by oil

,”’ a proposition confirmed by the legislative history and judicial decisions. Transocean argues that the saving provisions apply only to state claims for oil discharges within a state's territory, not discharges…occurring in federal waters. [T]he saving clauses expressly authorize state claims for pollution by oil affecting a state regardless of where the discharge occurs *** Transocean's interpretation of the saving provisions… is structurally illogical.By specifying that States can impose additional liability for "other pollution by oil within such State" [§ 2718(a)(1)(A)], the statute contemplates penalization of more than merely discharges occurring within the state's territory. The St. Joe Company v. Transocean Deepwater Drilling, 774 F. Supp.2d 596, 2011 AMC 2624 (D. Del.)

For Non-

Preemption

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(o) Obligation for damages unaffected, local authority not preempted; existing Federal authority not modified or affected

(1) Nothing in this section shall affect or modify in any way the obligations of any owner or operator . . . or offshore facility to any person or agency under any provision of law for damages to any publicly owned or privately owned property resulting from a discharge of any oil or hazardous substance. . . .(2) Nothing in this section shall be construed as preempting any State or political subdivision thereof from imposing any requirement or liability with respect to the discharge of oil or hazardous substance into any waters within such State, or with respect to any removal activities related to such discharge.(3) Nothing in this section shall be construed . . . to affect any State or local law not in conflict with this section.Clean Water Act, 33 U.S.C. § 1321(o)

CIVIL PENALTIESSlide15

The argument is also briefly made that the Parishes' Wildlife Statute claims are preserved by Section 2718(a)(1)(A), which allows any state or political subdivision thereof to impose additional liability or requirements with respect to "the discharge of oil or other pollution by oil within such State. . . ." The Parishes would limit "within such State" to modifying "pollution by oil." This does not wash grammatically; the

geographic limitation applies to both means of pollution. In re Oil Spill by the Oil Rig Deepwater Horizon, 745 F.3d 157, 2014 AMC 2600Slide16

“If a discharge, or a substantial threat of a discharge, of oil or a hazardous substance from a vessel, offshore facility, or onshore facility is of such a size or character as to be a substantial threat to the public health or welfare of the United States . . . the President shall direct all Federal, State, and

private actions to remove the discharge or to mitigate or prevent the threat of the discharge.” 33 U.S.C. § 1321(c)(2)(A) (emphasis added).REMOVAL ACTIONSSlide17

“The President shall consult with the affected trustees . . . on the appropriate removal action to be taken in connection with any discharge of oil. For the purposes of the National Contingency Plan, removal with respect to any discharge shall be considered completed when so determined by the President in consultation with the Governor or Governors of the affected States.

However, this determination shall not preclude additional removal actions under applicable State law. 33 U.S.C. § 2711 REMOVAL ACTIONSSlide18

“The Court finds that the State’s actions in this case – in ordering the removal of the orphaned anchors … - are pre-empted by obstacle pre-emption*** [P]ermitting the State to require any party to acquire a coastal permit for…spill response…would impede the accomplishment and realization of the CWA’s objective of providing a “clear delineation of command and management.”

 BP America v. Chustz, 33 F.Supp.3d 676, 2015 AMC 21 (M.D. La. 2014)Slide19

For Displacement: 

“Nothing in OPA authorizes a responsible party to bring a third-party complaint against a claimant that has chosen…to submit claims to the [National Pollution] Fund after 90 days without payment….[S]uch a third-party complaint would risk “avoid[ing] the strict liability that OPA places on responsible parties to pay cleanup and removal costs.” US v. American Commercial Lines, 759 F.3d 420, 2014 AMC 2400 (5th Cir. 2014)THIRD-PARTY ACTIONSSlide20

“This Court finds that…OPA preempts general maritime law claims that are recoverable under OPA… In light of Congress’ intent to minimize piecemeal lawsuits and the mandatory language of OPA…, it appears that Claimants should pursue claims covered by OPA only against the responsible party… Then, the responsible party can take action to recover from third parties.”

 Gabarick v. Laurin Martime (America) Inc., 623 F. Supp. 741, 2009 AMC 1014 (E.D. La.)THIRD-PARTY ACTIONSSlide21

“[T]here is nothing to indicate that allowing a general maritime remedy against the non-Responsible Parties will somehow frustrate Congress' intent when it enacted OPA.

Thus, claimants' maritime causes of action against a Responsible Party are displaced by OPA, such that all claims against a Responsible Party for damages covered by OPA must comply with OPA's presentment procedure. However, as to the non-Responsible Parties, there is nothing in OPA to indicate that Congress intended such parties to be immune from direct liability to persons who either suffered physical damage to a proprietary interest or qualify for the commercial fishermen exception. Therefore, general maritime law claims that existed before OPA may be brought directly against non-Responsible parties.”Oil spill by the Oil Rig Deepwater Horizon, 808 F. Supp. 2d 943, 2011 AMC 2220 (E.D. La.)For Non-Displacement:Slide22

For Displacement:

“In order to abrogate a common-law principle, the statute must speak directly to the question addressed by the common law.” Exxon Shipping v. Baker, 554 US 471, 2008 AMC 1521 (2008)“[I]n an area covered by the statute, it would be no more appropriate to prescribe a different measure of damage than to prescribe a different statute of limitations, or a different class of beneficiaries... Miles dictates deference to congressional judgment ‘where, at the very least, there is an overlap between statutory and decisional law.’”South Port Marine v. Gulf Oil Limited Partnership, 234F.3d 58, 2001 AMC 609 (1st Cir. 2000)PUNITIVE DAMAGESSlide23

“OPA does not displace general maritime law claims for those Plaintiffs who would have been able to bring such claims prior to OPA’s enactment. These Plaintiffs assert plausible claims for punitive damages against

Responsible and non-Responsible parties.” Oil Spill by the Oil Rig Deepwater Horizon, 808 F. Supp. 2d 943, 2011 AMC 2220 (E.D. La)For Non-Displacement: