Where Washington leads others follow
Posted on | December 15, 2009 | No Comments
During the IMO assembly meeting last month, Secretary-General Mitropoulos made a plea for uniform solutions, arrived at internationally, through a process of collective agreement. In the field of oil pollution legislation – always politically sensitive – this is perhaps wishful thinking. Particularly in the United States. The following is an example.
In April of 2003, an oil barge, Bouchard Barge No. 120, ran on a rock and spilled about 100,000 gallons of heavy oil into Buzzard’s Bay, Massachusetts.
As if to illustrate that oil pollution regulation precedes one spill at a time, to paraphrase Max Planck, Massachusetts enacted regulations providing for escort tugs for double-hulled as well as single-hulled barges. In order to get around a court ruling, invalidating fees by vessel operators, in such cases, Massachusetts provided for a 5-cent-a-barrel delivery fee at its maritime terminals, to pay for the tug boat protection and pilotage. A state law, requiring escort tugs for both single and double-hulled barges, goes beyond the provisions of the U.S. Oil Pollution Act of 1990. That Act specifically allowed for state law to survive and even go beyond, the U.S. requirements.
As in the case of golf, local rules can be important. They can also lead to revealing results.
In this case, we can see that the Obama administration has a very different approach from its predecessor. While oil spills are far from our thoughts in this season of Copenhagen and piracy, it useful to remember that we are only one oil spill away from the next bout of regulation. We are reminded of this by a letter from Homeland Security Secretary Janet Napolitano, addressed to the influential Congressman Barney Frank of Massachusetts stating:
“Although the U.S. Coastguard has concerns about the new legislation, we do not have any present intention to initiate a legal challenge.”
This comes after a memorandum from President Barack Obama, last May, to all departments of the federal government, instructing them to cooperate with state governments in the solution of environmental problems. At that time, the President said that
“Preemption of state law by executive departments and agencies should be undertaken only with full consideration of the legitimate prerogatives of the states, and with a sufficient legal basis for preemption.”
Congressman Frank said, last week,
“I am very grateful to Secretary Napolitano for responding to our concerns, and agreeing not to try to block the Massachusetts state law regarding oil tankers in Buzzard’s Bay. This is a welcome contrast from the policy of the Bush administration. Until the day arrives when double-hulled tankers are required, it is vital that we take the necessary steps to protect our natural resources.”
What it also means, is that, as predicted, the Obama administration is far more friendly to local, i.e. state laws that go beyond the provisions of OPA ’90. This blog has been predicting that some day that there will be another oil spill in U.S waters, and at the very least an attempt to tighten up the 1990 federal oil spill legislation now on the books. Somewhere in Washington, there is probably a CD with a menu of further enhancements, dealing no doubt with additional liability. The Napolitano letter is a straw in the wind, and an example of how efforts to create a uniform international regime are subject to, as golfers would put it, local rules. And remember: what happens in Washington usually echoes in Brussels.
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