October 9, 1974
Page 34659
Mr. MUSKIE. Mr. President, I call up an amendment which I have at the desk, and ask for its immediate consideration.
The PRESIDING OFFICER. The amendment will be stated.
Mr. MUSKIE. I ask unanimous consent that reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. MUSKIE's amendment is as follows
On page 47, strike lines 8 through 12 and insert in lieu thereof the following:
"(k) Preemption – (1) This section shall not be interpreted to preempt the field of liability without regard to fault or to preclude any State from imposing additional requirements or liability for any discharge of oil or natural gas from a deepwater port or a vessel within any safety zone.
"(2) Any person who receives compensation for damages pursuant to this section shall be precluded from recovering compensation for the same damages pursuant to any other State or Federal law. Any person who receives compensation for damages pursuant to any other Federal or State law shall be precluded from receiving compensation for the same damages as provided in this section."
Mr. MUSKIE. I can explain this amendment very simply. It has to do with section 18(k), which, as presently written, provides that all State and Federal liability laws are preempted for cleanup costs and damages resulting from a discharge of oil or natural gas from a deepwater port or from a vessel within a safety zone surrounding a deepwater port.
Both the Committee on Public Works and the Committee on Interior and Insular Affairs oppose this preemption section of the deepwater port legislation. The Interior Committee and the Public Works Committee developed proposals for dealing with it. This amendment is the amendment of the Public Works Committee.
This principle of not preempting States' rights in defining liability for oil spills or setting higher liability limits is contained in the Federal Water Pollution Control Act. Section 311 of that law established liability for cleanup costs for oil spills in navigable waters and in the contiguous zone, but also provided that States and political subdivisions not be precluded from imposing any requirements or liability with respect to the discharge of oil or hazardous substances into any State waters.
The State's right to set more stringent liability laws is a well-established principle.
The Committee on Public Works supports this principle. The committee thinks it is preferable that the principle be clearly stated.
There is this provision of the Federal Water Pollution Control Act Amendments of 1972:
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 substances in any waters within the State.
The same principle is found in the House version of the pending legislation, and it makes a great deal of sense.
One example of the necessity for this, for example, was the California law with respect to auto emission requirements. Because California had an especially acute problem, after long debate on the Clean Air Act, we allowed California an exemption to set more stringent limits than the Federal law.
There are going to be situations in the various States which call for more drastic action than the general Federal law requires, and it is for that purpose that the Public Works Committee, in all of its legislation dealing with the environment, has avoided preempting this right of the States. It is for that reason, Mr. President, that I offer this amendment and commend it to the distinguished floor manager of the bill.
Mr. HOLLINGS. Mr. President, we lean toward agreeing to accepting the amendment. I am checking with my colleagues.
The reason for the difference in this particular bill from the Clean Air Act and other provisions was that we provided for unlimited liability for all damages and, thereby, we did not think the State or anybody else could really increase that liability or require a higher degree of culpability or whatever.
In that light we did not want the State to be misled by it, and we included that preemption section that is found on page 47, section (k).
However, the Senator's argument then would be since it is unlimited liability for all damage, what damage or injury can be done by the inclusion or adoption of his amendment and if there is no misunderstanding. We are just as zealous as he is that it be unlimited and it be for all damage. The reading of the section is:
The Fund shall be liable, without regard to fault, for all cleanup costs and all damages in excess of those actually compensated in the other different sections there.
I ask my colleague on the other side of the aisle, the Senator from Arizona (Mr. FANNIN), how he feels about it.
Mr. FANNIN. Mr. President, the financial responsibility provision in the bill, I think, is adequate.
It is all-encompassing.
In the discussions in the committee it was felt that this was going to the full extent of the need that is involved. So I do not feel that there would be any benefit to adding this amendment. I would think that this is fully covered, and the distinguished Senator from Maine would recognize that.
I think that the item of dual coverage is brought up, and we certainly do not want to confuse the issue. I think that might be the case if this amendment is adopted.
Mr. MUSKIE. If the Senator will yield, what is involved are two questions: What are the standards of liability and, second, what is the amount of recovery?
What I am talking about are the standards of liability. We have an unlimited recovery with respect to the particular damages that are covered. The specific limits of liability for the port and vessel owner, however, are limited. But I do not think, for example, that this legislation encompasses the kind of extensive liability which is found in the oil pollution control legislation that we enacted several years ago which, in effect, is faultless liability and hazardous situations.
The second point I would like to address–
Mr. HOLLINGS. Mr. President, will the Senator yield at that point?
Mr. MUSKIE. If I may make the second point, then I shall yield. If the Senator feels he is in accord with what the amendment does, there is no problem in accepting the amendment and working out whatever problems may exist subsequently in conference.
If the Senator agrees or if he believes that the bill does what this amendment does, then let us accept the language and work out whatever misunderstanding we may have on that score.
Mr. JOHNSTON. Will the Senator yield?
Mr. MUSKIE. Yes.
Mr. HOLLINGS. Let me just clarify that one section because when the Senator talks about faultless liability, that is exactly what is provided for in this bill.
On page 42, line 11, the bill says:
Notwithstanding any other provision of law, except as provided in subsection (g) of this section, the owner and operator of a vessel shall be jointly and severally liable, without regard to fault ...
In other words, it provides for no fault or faultless liability. We did not know how to make it more encompassing than that.
Then it says: "for all damages," so there should not be any misunderstanding.
If we do accept this amendment, we do not want any confusion. I do not mind taking the amendment, if any colleagues are directed to, in the light of trying to clarify any misunderstanding, and we can certainly work it out in conference.
I yield to the Senator from Alaska.
Mr. STEVENS. I respectfully say to my friend, the Senator from Maine, that this is the most comprehensive liability that has ever been imposed by any statute on pollution or any other type of damage as far as recovery is concerned. It includes all costs, it includes all damages without regard to liability. It is a funded liability and, as such, I do not see any reason why it should not be the sole source of recovery for actions resulting from the operations of this type of a port.
I think if we put in the Senator's amendment he is being redundant, and it raises the specter of a double liability for the cost or damages incurred.
Mr. MUSKIE. May I say to the Senator I do not accept that conclusion.
May I also point out that this provision is included in the House bill, so there must have been some reason for it. Let me read it:
This section shall not be interpreted to preempt the field of liability without regard to fault or to preclude any State from imposing any additional requirements.
That is in the House version of the bill. This is the very language of the pending amendment and, for the life of me, I cannot see why, if the Senators are in agreement as to the principle of this standard of liability, this language cannot be accepted.
My staff is of the opinion that it does not have the consequences, as does this one, of the Senator's language.
Mr. HOLLINGS. If the Senator will yield, the difference is that both the Senate and the House bills have faultless liability, but the House bill has an upward limitation, and we have no such limit. They have a cutoff of $100 million. We eliminated that cutoff when we said all damages.
That was the reason why we put in the pre-emption provision so this would be absolutely clear and there would be no confusion.
Mr. JOHNSTON. Mr. President, I hesitate even to question this amendment because I certainly agree with the sentiment behind it. We want to give as much protection to these coastal States as we can.
But I have a few questions that I think will illustrate the difficulty I am having with this, so I would ask the distinguished Senator from Maine this question. Suppose a State such as Louisiana has no laws that impose strict liability on a ship.
Under this language which states that this section shall not be interpreted to preempt the field of liability without regard to fault, is it not possible that that would mean we would have a dual jurisdiction in both State and Federal courts with two different sets of standards of liability?
Mr. MUSKIE. I do not believe so because we have not run into this problem with the Clean Air Act or the Federal Water Pollution Control Act. This language is in those pieces of legislation and the courts have ruled on them and have supported or sustained that language.
Mr. JOHNSTON. Is it precisely this language?
Mr. MUSKIE. Well, here is the language in the Water Pollution Act. Let me read it. I have not read it recently:
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 substances within any water within such State.
It is the same thought, the same thrust. We just feel that States which have special situations requiring special treatment ought to be able to set higher limits of liability for the port and vessel owner in order to protect themselves. We have not found that in 10 years of writing environmental legislation that this is an unreasonable requirement. We have not found the States ready to abuse this privilege. All we are asking is to give them the right.
I have been writing legislation designed to establish national environmental standards. I am not for undermining national standards. But I think we need some flexibility for those States which want to move in with a tougher policy, and we should permit them to do so.
I have not had a chance personally to study the Committee language, and it may be that I can be reassured on it. But, at the moment, on the basis of careful staff analysis, I think that the language I have offered fills this need.
If it does not, I am sure we can modify it.
I apologize for bringing it in at the last moment of consideration of this bill, but I have been tied up elsewhere, and I just got to the floor.
Mr. JOHNSTON. Well, I am strongly endorsing the sentiment that the Senator states. I can see differences not only in the language in the Federal Water Pollution Control Act and in the situation that controls mainly one State with a stationary thing as opposed to ships coming and going into the superport. We have limited liability of $14 million under the Federal Water Pollution Control Act.
Nevertheless, for my own part, and this reflects the Interior Committee, we are willing to accept the amendment provided the Senator will, as I am sure he will, work on the language to it, and we do not derogate it, so that we do not reach this situation that I first described where there may be no liability under State law and a higher under Federal law and a rush to the courthouse, so that we can adequately and fully protect the States; to that end, we will accept the amendment.
Mr. HOLLINGS. Mr. President, I do not think we are afforded that liberty. If we accept the amendment, and it is in the House provision, and now we accept it in the Senate provision, it is locked in.
If the Senator, in the very spirit I was discussing just a few minutes ago in which he has presented it, would receive and accept our assurance we will work it out with him, and if he and his staff and the staff of our several committees can find how to improve both, without confusion, without limitation, but actually add to it, then I think we ought to forego presenting this amendment at this time because if we accept it, the House has got it in, and we accept it here, then it is not subject to conference and we are locked in and cannot negotiate around what we are all trying to do.
Mr. MUSKIE. Let me suggest this. As I understand it, this $100 million is a recovery limit in the House bill, and there is no ceiling on the Senate bill. It seems to me that this difference gives the flexibility to also debate the standards of liability.
Mr. HOLLINGS. Not on the question of the language, we can use the House language.
Mr. MUSKIE. I understand the language is not on all fours. I do not agree with the House, there are differences in the language.
Mr. STEVENS. Would the Senator from Maine accept our complete assurances that if there is any problem at all with regard to what he seeks, we would include it? If we put it in now, we will not have any flexibility.
Mr. MUSKIE. Let me make a suggestion. This is wholly editorial, for the purpose of leaving the issue in conference. This is not to be interpreted as any commitment to this modification.
If we leave out the phrase "without regard to fault" which is in the House language, then the thrust of my purpose is still clear, and, that is we do not want preemption but we have given some bargaining room with respect to the standards of liability.
I am still for the House language, but I think that this may give enough flexibility. With that modification, I would certainly be willing to rely on the good faith of the Senate conferees to work this out, because I think it is a good bill. I do not want to hurt this bill.
Mr. HOLLINGS. Now, by eliminating "without regard to fault," I am reading from page 59 of the House bill, and that is exactly what that did, this section shall not be interpreted to preempt the field of liability, that is exactly the way we would read it; they do not have "without regard to fault."
Mr. MUSKIE. Yes, they do.
Mr. HOLLINGS. To preempt the field of liability without regard to fault, they have on the House side, so this would make the difference. I see. Without regard to fault or to preclude any State from imposing additional requirements.
I think we can accept something to create a difference, to bring about debate, to give us flexibility, and to allow us to go to conference.
Mr. MUSKIE. Mr. President, may I modify my amendment by deleting the phrase "without regard to fault" with the understanding on the part of all that this is for the purpose of directing the issues into conference?
The PRESIDING OFFICER. The Senator from Maine may modify his amendment. It is so modified.
The amendment, as modified, is as follows:
On page 47, strike lines 8 through 12 and insert in lieu thereof the following:
"(k) Preemption – (1) This section shall not be interpreted to preempt the field of liability or to preclude any State from imposing additional requirements or liability for any discharge of oil or natural gas from a deepwater port or a vessel within any safety zone.
"(2) Any person who receives compensation for damages pursuant to this section shall be precluded from recovering compensation for the same damages pursuant to any other State or Federal law. Any person who receives compensation for damages pursuant to any other Federal or State law shall be precluded from receiving compensation for the same damages as provided in this section."
Mr. HOLLINGS. Let us make it crystal clear, we are not varying from the very substantial liability, and liability for all damages, contained in the Senate provision. We do not see how the States can improve on that, if they can we will look at it in conference.
The PRESIDING OFFICER. Do the Senators yield back their time?
Mr. MUSKIE. I yield back my time.
Mr. HOLLINGS. I yield back the remainder of my time.
Mr. FANNIN. I yield back my time.
The PRESIDING OFFICER. All time having been yielded back, the question is on agreeing to the amendment, as modified.
The amendment, as modified, was agreed to.