June 10, 1977
Page 18507
Mr. CRANSTON. Mr. President, if I may have the attention of the distinguished floor manager for a few moments, I would like to ask his assistance in clarifying the intent of the Clean Air Act with respect to the authority of a State to regulate air pollution emissions from oil tankers calling on ports within the State.
I would appreciate the comments of the Senator from Maine, the principal author of the comprehensive 1970 Act, as to whether the current law authorizes a coastal State to adopt and enforce emission standards, limitations or requirements on vessels for the purpose of preventing violations of national ambient air quality standards within the State?
Mr. MUSKIE. Yes, I believe the authority to regulate emissions from vessels is implicit in the 1970 amendments. Section 110 of the act requires EPA to approve State implementation plans which contain "emissions limitations ... and such other measures as may be necessary to insure attainment and maintenance of such — ambient air quality — standard, including, but not limited to, land use and transportation controls."
Mr. CRANSTON. The State of California is concerned that in issuing a permit to construct a terminal facility for unloading Alaskan oil in the Port of Long Beach, pursuant to the requirements of the Clean Air Act, it is not certain what State or Federal entity, if any, has the power to enforce limitations on air pollutant emissions from tankers calling at the facility.
Mr. MUSKIE. Under EPA regulations, State implementation plans are required for preconstruction review of new air pollution sources. 40 CFR 51.18(b) . The procedure must assure that emissions from the source itself, and from mobile source activities directly associated with the source, do not deter attainment or maintenance of the air quality standards.
Mr. CRANSTON. Does that mean that in granting a permit to construct an onshore facility a State may impose procedural or substantive conditions on the vessels that would use that facility for the purpose of assuring that those vessels would not cause violations of air quality standards onshore?
Mr. MUSKIE. Yes, emissions from vessels can be considered as part of the permit and conditions on the operation of vessels and would be valid to the same extent as other permit conditions for a stationary source.
Mr. CRANSTON. Is it your view, then, that the States' authority is limited to the review of vessels associated with new onshore facilities?
Mr. MUSKIE. No. Section 110 gives the States a very broad mandate to choose the sources of pollution they will regulate and the degree of regulation, so long as the air quality standards are met. That authority has been broadly interpreted by the Supreme Court in a unanimous decision in Union Electric Co. v. Train, 96 S. Ct. 2518, 2531 (1976). Vessels operating within the coastal waters of the United States or calling at facilities under U.S. jurisdiction, or such offshore facilities, to the extent that their emissions degrade air quality within the territory of a State, are certainly included within the list of sources subject to State air pollution controls.
Mr. CRANSTON. Does EPA also have powers to impose emission standards, requirements or limitations on vessels?
Mr. MUSKIE. Yes. EPA has imposed controls on vessels loading and unloading in its implementation plan for the State of Texas. These regulations were adopted by EPA after the State had failed to act, as required by section 110(c) of the 1970 act. EPA's authority to regulate vessels was upheld by the Fifth Circuit Court of Appeals in State of Texas v. EPA, 449 F.
2d 289, 316317 (1974). I believe that decision correctly interprets the law.
Mr. CRANSTON. I thank the Senator for his clarifications. His interpretations conform to my understanding of the 1970 act with respect to the States' authority to regulate tanker emissions.
Mr. President, to back up these remarks, I ask unanimous consent that two legal memorandums prepared by the Federal Energy Administration and the Environmental Protection Agency relating to this interpretation be included in the RECORD at this point.
There being no objection, the material was ordered to be printed in the RECORD, as follows:
U.S. ENVIRONMENTAL PROTECTION AGENCY
Washington, D.C.,
May 23, 1977.
MEMORANDUM
Subject: State Authority to Regulate Ship Emissions
From: G. William Frick, General Council (A130)
To: Douglas G. Robinson, Alaska Oil Project Coordinator, Federal Energy Administration.
At your request, we have reviewed the FEA General Counsel Memorandum of May 13, 1977, which addresses Clean Air Act issues. We agree with FEA's basic conclusion, which we would characterize as follows: a State may adopt and enforce emission controls on ships using the State's ports, and such controls may apply even when a ship may be as far as twelve miles from shore.
You already have our memo of August 10, 1976, which concluded as follows: "EPA (and/or a State) has authority under the Clean Air Act to impose on a proposed marine terminal facility, and tankers bringing oil to it, whatever restrictions may be necessary to insure attainment and maintenance of the ambient air quality standards." (Emphasis added.) Our memo basically focussed on EPA's authority (rather than State authority) and did not discuss the issue of how far from shore the controls could apply. In order to respond to the FEA memo of May 13, I will now elaborate on those points.
State authority. Perhaps the most fundamental principle underlying the Clean Air Act is that "the prevention and control of air pollution at its source is the primary responsibility of States and local governments."§ 101(a) (3). Each State has the "primary responsibility for assuring air quality within the entire geographic area comprising such State." § 107(a). Even Federal facilities are subject to State and local control measures § 118.
In order to assure such air quality, States are to develop implementation plans under § 110 which are to include "emission limitations . . . and such other measures as may be necessary to insure attainment and maintenance" of the ambient standards, "including, but not limited to, land use and transportation controls." Under the Act, EPA is to promulgate implementation plan revisions under § 110(c) only as a last resort, when a State fails to submit a plan provision or submits an inadequate one.
If Congress' preference for State and local controls is not clear enough in the current Clean Air Act, both the House and Senate Committee Reports on now-pending Clean Air Act amendments make the point even more strongly:
"[T]his bill (H.R. 6161) is needed for several main purposes: . . . (2) to provide a greater role and greater assistance for State and local governments in the administration of the Clean Air Act."
Clean Air Act Amendments of 1977, H.R. Rept. No. 95-294, May 12,1977, at p. 1.
"The problem of air pollution exists at the State and local level. That is where the public understands the problem. That is where the resources must be directed ...
"The Federal role must be one of support rather than control. The Federal Government does not have and will not have the resources required to do an effective job of running the air pollution control programs of the States." Clean Air Act Amendments of 1977, S. Rept. No. 95-127, May 10, 1977, at p. 10.
Section 116 also stresses the primacy of State and local controls in the Clean Air Act scheme. It provides that except where the Act specifically preempts State action (such as in the area of new automobile and aircraft emission controls), the States and local governments are free to adopt and enforce any air pollution controls so long as such a control is not less stringent than any applicable Federal air pollution control. That Section 116's principles are essential and pervasive to the scheme of the Clean Air Act was emphasized by the unanimous Supreme Court decision, Union Electric Co. v. Train, 96 S. Ct. 2518. (1976).
In light of the clear Congressional preference for State and local controls, and in light of Section 110's directive that all controls as may be necessary to protect air quality in the State be utilized, we must logically start with the presumption that State and local air pollution controls may legally be imposed on ships with emissions which impact on the State's air quality.
This presumption is heavily buttressed by the Supreme Court's decision in Huron Portland Cement Co. v. Detroit, 362 U.S. 440 (1960), which upheld on Constitutional grounds the City of Detroit's criminal ordinance limiting air pollutant emissions from ships. The Court rejected arguments that the Federal Government had preempted the field, citing a provision from the then existing Clean Air Act (which remains in today's version at 101(a) (3) and 107(a) as quoted above) making clear that the Act places primary control responsibility on States and local governments. 362 U.S. at 445-56. The Court also rejected arguments that State and local air pollution restrictions on interstate shipping impose an unconstitutional burden on interstate commerce.
The presumption is further buttressed by Judge Bell's opinion in State of Texas v. EPA,499 F. 2d 289, 316-17 (5th Cir. 1974), discussed at page 5 of our memo of last August. While that decision upheld EPA's authority under § 110 to impose emission controls on ships, the decision did not turn on the fact that the challenged regulation was issued by EPA. Rather, the decision turned on the "emission limitations ... and such other measures" language of § 110, which language applies to the States in the first instance and to EPA only as a last resort. (EPA had promulgated the regulation because the State had failed to develop an adequate plan.)
The only argument for rebuttal of the presumption which has come to our attention is the contention that the Ports and Waterways Safety Act of 1972 (PWSA) (33 U.S.C. H 1221 et seq., 46 U.S.C. § 391a et seq.), places sole regulatory authority over shipping operations in the Coast Guard. Judge Bell explicitly rejected this argument in his State of Texas opinion, supra. He stated that there is "no merit in the suggestion of a lack of authority due to the Coast Guard's responsibility for safety regulations." 499 F. 2d at 317.
We are aware of ARCO v. Evans, Civ. No. C75648M (W.D. Wash., Sept. 4, 1976), which held that the PWSA preempted certain State shipping regulations. We agree, however, with the analysis at pp. 10-12 of the FEA May 13 memo that ARCO is significantly distinguishable on its facts so as not to conflict with State of Texas. Perhaps the most significant distinction is that in ARCO, the shipping regulations were based only on State police power jurisdiction and had no specific sanction under a Federal statute. Air pollution regulations, however, are obviously encouraged (and even required) by the Federal Clean Air Act.
We note that Judge Bell stated in State of Texas that "There is no indication that the EPA will attempt to invade the domain of the Coast Guard or otherwise interfere with or jeopardize its provisions for maritime safety." 499 P. 2d at 317. Where an air pollution regulation could cause a ship to violate a Coast Guard safety regulation, we agree that significant legal problems could be created. We must presume that a State or EPA would not require measures causing violations of Coast Guard regulations, however. We are also informed that the Sohio conditions contemplated by California which are referenced in the May 13 FEA memo would not cause violations of Coast Guard safety standards.
Distance From Shore. We agree with the FEA conclusion that the State may enforce its ship emission requirements, through denial of entry to port, against violations occurring even twelve miles from shore so long as emissions within such zone may impact on air quality within the State.
The State is charged under § 107(a) with the primary responsibility for "assuring air quality within the entire geographic area comprising such State." If the State's basis for imposing ship emission limitations twelve miles from shore were merely to protect the air quality over the high seas, significant legal problems would be presented. We presume, however, that California has a rational basis for determining that emissions from up to twelve miles offshore may impact on air quality over the State.
In light of the analysis on page 16 of the FEA memo on the sovereign's right to control access to its ports for reasonable purposes, and in light of the Congressional directive that States should protect their own air quality with any necessary measures, we would conclude that ship emissions could be controlled by the State even beyond twelve miles from shore if necessary to protect the State's air quality.
[Footnotes omitted]
FEDERAL ENERGY ADMINISTRATION,
Washington, D.C.,
May 13, 1977.
Hon. JOHN M. HARMON,
Acting Assistant Attorney General,
Office of Legal Counsel,
Department of Justice,
Washington, D.C.
DEAR. MR. HARMON: At the request of the parties, the Federal Energy Administration has been acting as an informal coordinator and mediator in the ongoing administrative process by which the State of California's Air Resources Board is reviewing the compliance of a proposed Standard Oil of Ohio (Sohio) marine oil terminal at Long Beach with that State's air pollution control standards.
A major question that has arisen during the administrative process is whether the State has jurisdiction and authority to regulate pollutant emissions from oil tankers using the proposed terminal, while such tankers are operating beyond the three-mile territorial limit of the State but are still well within the South Coast Air Basin, which encompasses all of the Los Angeles/Long Beach region. Neither party is arguing that the State does not have such authority, but the State is reluctant to agree to the permit conditions proposed by Sohio, which conditions would have the indirect effect of regulating offshore tanker operations, until it is convinced that it would have the legal authority to enforce such conditions. Until the parties reach agreement on this major legal issue, it appears that the permitting process for the project will remain at an impasse. Such a situation could well deprive the nation of an important energy project that would transport half a million barrels a day of Alaska North Slope crude oil to interior regions of the United States.
My office has analyzed the legal issues involved and has reached the conclusion that California does possess the requisite authority, as set forth in detail in the enclosed memorandum. Since the issue involves significant constitutional questions, I would very much appreciate it if you would review our analysis and provide us with your independent judgment on the legal issues that are discussed therein.
In view of the urgency of this project, I would appreciate a response as soon as possible.
Sincerely,
ERIC J. FYGI, Acting General Counsel.
FEDERAL ENERGY ADMINISTRATION,
Washington, D.C.,
May 13, 1977.
MEMORANDUM REGARDING REGULATION OF OIL TANKER EMISSIONS
The Trans-Alaska Pipeline System is expected to become operational in late 1977, and will begin to supply 1.2 million barrels B/D of Alaska North Slope crude oil to the Port of Valdez by January 1978. About 700,000 B/D will be absorbed by refineries on the West Coast, although projections indicate that at least another 500,000 B/D will have to be transported to the central areas of the United States over the next several years in order to reach U.S. markets where both demand and refining capacity exist.
One of the principal transportation systems proposed to move North Slope crude oil to the interior of the U.S. is the so-called Sohio project, which would involve construction by the Sohio Transportation Company of a terminal facility at Long Beach, California capable of receiving 700,000 B/D of crude oil. A pipeline system would be connected to that terminal, utilizing both new pipe and the reversal of an existing natural gas pipeline, and would move 500,000 B/D of North Slope crude oil to Midland, Texas, where it would feed into existing pipeline systems for ultimate delivery to refinery centers in the Midwest and on the Gulf Coast.
The Federal Government has reviewed the environmental impact of this project through the preparation of an environmental impact statement (EIS) that will be published in final form within the next few weeks. That analysis indicates that the major environmental problem posed by the facility is its potential adverse impact on air quality, as a result of emissions from tanker operations and onshore storage tanks, in the Los Angeles air basin, which already has the country's most severe air pollution problems. The jurisdiction to review and regulate the emissions generated by the proposed terminal is currently shared by the Environmental Protection Agency (EPA) under the authority of the Clean Air Act and by State and local air resources control authorities under California State law, which imposes conditions on new source emissions similiar, but not identical to, those imposed by EPA. The State has not been delegated authority under the Clean Air Act to review new sources, since its State Implementation Plan with respect to such sources has not yet been approved by EPA. Under both Federal and State law, however, since the South Coast Air Basin is a "nonattainment" area (i.e., it has not attained the minimum ambient air quality standards established by EPA or the State), a new emission source such as the Sohio terminal is allowed to be built only if the builder achieves a reduction in the emissions from existing sources such that the new emissions are more than offset, and there is a net improvement in air quality.
The Federal, State and local bodies having jurisdiction over the proposed facility's emissions have, in the process of reviewing Sohio's application, encountered major problems with regard to their jurisdiction to control emissions from tankers using the facility, when those tankers are more than three miles from shore but still within the South Coast Air Basin. Sohio has proposed that, in order to reduce emissions to the maximum extent possible, it impose as a condition to any vessel using its terminal facility, that such vessel observe certain emission-reducing practices with respect to venting, ballasting, purging, burning of low-sulphur fuel and other tanker operations. The specific conditions that Sohio intends to impose are attached. Sohio is willing to include these conditions in its lease from the Port of Long Beach, a municipal entity, and in the air quality permits issued to it by the EPA and California Air Resources Board (ARB).
The ARB does not dispute the adequacy of these permit conditions per se. However, it is currently unwilling to accept them because of uncertainty regarding its jurisdiction to enforce them insofar as they apply to tanker operations beyond the three-mile limit but within the air basin. For the facility if the terminal itself met all the conditions of the permit, but tankers calling on the terminal failed to comply with the low-sulphur fuel requirements or other operational limitations when steaming into or out of the South Coast basin. The ARB is insisting that there be in place some authority, vested either in itself or some other Federal or State agency, to enforce the conditions, and that the legal basis for such authority be beyond question. It has suggested, among other things, that if the same requirements were imposed by the Coast Guard as part of its tanker regulations under the Ports and Waterways Safety Act of 1972, its need for an unchallengeable enforcement mechanism would be satisfied. In this connection, the following issues have been raised:
1. Has the U.S. Government authority to regulate air pollution from tankers, and if so, is the scheme of regulation so pervasive as to preempt California's police power in this area?
2. Assuming no preemption, would a regulation otherwise within California's police power be an unconstitutional burden on commerce?
3. What are the respective offshore limits of Federal and State jurisdiction to impose anti-pollution requirements?
This memorandum will discuss these issues.
I. THE FEDERAL GOVERNMENT HAS AUTHORITY TO REGULATE AIR POLLUTION BY TANKERS AT SEA, BUT CALIFORNIA IS MOST LIKELY NOT PREEMPTED FROM EXERCISING ITS POLICE POWER IN THIS REGARD
A. The law applicable to preemption. The authority to protect the environment and the health and safety of the public by regulating ships' activity on navigable waters located within or adjacent to a state, has long been recognized as an attribute of states' police power. See Huron Portland Cement Co. v. City of Detroit, Michigan, 362 U.S. 440, 443 (1960), upholding a local smoke-abatement ordinance notwithstanding federal license and approval of ships' boilers, and Askew v. American Waterways Operators, Inc., 411 U.S.325 (1973), upholding Florida's imposition of unlimited absolute liability for damages incurred as a result of oil spills in the State's waters, notwithstanding enactment of the Federal Water Pollution Control Act of 1970 and claims of exclusive Federal power to enact legislation involving maritime matters. In the Court's latest case dealing with preemption, Jones v. Rath Packing Co., No. 751053, 45 U.S.L.W. 4323 (March 29, 1977), it stated that "Where, as here, the field which Congress is said to have preempted has been traditionally occupied by the States [w]e start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)."
The Court in Rath went on to state, however, that:
"[W]hen Congress has 'unmistakably .. . ordained' ... that its enactment alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall. This result is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose. [citation omitted]
"Congressional enactments that do not exclude all state legislation in the same field nevertheless override state laws with which they conflict. U.S. Const., Art. VI. The criterion for determining whether state and federal laws are so inconsistent that the state law must give way is firmly established in our decisions. Our test is 'to determine whether, under the circumstances of this particular case, [the state's] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' Hines v. Davidowitz, 312 U.S. 52, 67 (1940)." 45 U.S.L.W. 43245.
In determining whether the state law is an "obstacle" to Congress' purpose, the Court has held that "the proper approach is to reconcile 'the operation of both statutory schemes with one another rather than holding one completely ousted.' " Merrill, Lynch, Pierce, Fenner and Smith, Inc. v. Ware, 414 U.S. 117, 127 (1973), quoting Silver v. N.Y. Stock Exchange, 373 U.S. 341. 357 (1963) . In Florida Lime and Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142 (1963), the Court dismissed the suggestion that the test is whether the purposes of the two laws are parallel or divergent, stating that "the test of whether both federal and state regulations may operate, or the state regulation must give way, is whether both regulations can be enforced without impairing federal superintendence of the field, not whether they are aimed at similar or different objectives."
With this in mind, it is necessary to determine whether Federal authority to regulate tanker emissions exists, and if so, if it is preemptive.
B. The Clean Air Act. Under the Clean Air Act, 42 U.S.C. 1857 et seq., the Administrator of EPA is authorized to issue national primary and secondary ambient air quality standards under § 1857c– 4, which are put into effect pursuant to state implementation plans authorized by § 1857c– 5. Where the state plan falls to implement the standards, or implements them inadequately, EPA can do so directly. The Act specifically preserves the states' police power to enact pollution control measures, and provides at § 1857d–1 that:
"Except as otherwise provided [in sections not applicable here] nothing in this chapter shall preclude or deny the right of any State or political subdivision thereof to adopt or enforce (1) any standard or limitations respecting emissions of sir pollutants or (2) any requirement respecting control or abatement of air pollution; except that if an emission standard or limitation is in effect under an applicable implementation plan or under [sections dealing with new stationary sources or hazardous pollutants], such State or political subdivision may not adopt or enforce an emission standard or limitation under such plan or section."
California intends to exercise its authority under State law (see Health and Safety Code § 40702, 41601, 41700, 41702-3, 42300-301) to control emissions associated with the Sohio project, including emissions from tankers calling on the proposed terminal, if possible, by imposing the permit conditions contained in the attached list. The question to be decided, therefore, is whether the type of limitations on tanker operations proposed to be included in the Sohio terminal permit adopt or enforce standards or limitations less stringent than those that would be applicable under the Clean Air Act and are therefore preemoted by virtue of 1857d–1.
In a memorandum dated August 10, 1976, the Environmental Protection Agency asserted that "EPA (and/or a State) has authority under the Clean Air Act to impose on a proposed marine facility, and tankers bringing oil to it, whatever restrictions may be necessary to insure attainment and maintenance of ambient air quality standards." Careful review of the relevant authorities suggests, that this view is correct.
Under § 857c5(a)(2)(B), EPA is required to approve state implementation plans which contain "emission limitations . . . and such other measures as may be necessary to insure attainment and maintenance of such [ambient] standard, including, but not limited to, land use and transportation controls." EPA has, by regulation, interpreted 'other measures' to include new source review regulations. 40 CFR 51.18. (It should be noted that "new sources" are defined as new stationary sources.) State implementation plans must therefore have new source review regulations that subject new air pollution sources to preconstruction review, and must operate to prohibit new sources which would prevent the attainment and maintenance of the national ambient standards. 40 CFR 51.18 (b).
While any new terminal in itself, a stationary source of air pollution, the oil tankers which supply it (and are mobile) contribute pollution which is necessarily related to the terminal in a "but for" sense. 'Under 40 CFR $ 51.18(a), each plan must set forth procedures so as to insure that attainment of ambient standards will not be deterred "either directly because of emissions from the [new source], or indirectly, because of emissions resulting from mobile source activities associated with it" 40 CFR 51.18(c) (1) specifically requires that the owner or operator of the source under review submit information concerning "the nature and amount of emissions to be emitted by it or emitted by associated mobile sources". EPA's "Interpretative Ruling for Implementation of the Requirements of 40 CFR 51.18," 41 FR 55528 (Dec. 21, 1976), states at n.3 that 'Where a new source will result in specific and well defined indirect or secondary emissions which can be quantified, the reviewing authority should consider such secondary emissions in determining whether the source would cause or exacerbate a violation of the [National Ambient Air Quality Standards].'
Thus, in exercising its permit authority over the construction of a new stationary source, such as the terminal and its storage tanks, EPA (or a state agency delegated authority under the Clean Air Act) must thoroughly assess tanker emission identifiable to the terminal in order to determine its actual impact. Under the applicable tradeoff policy, the applicant for the new source permit would have to demonstrate that emission reductions from existing sources could be traded off against the new emissions, which necessarily include the tankers associated with the terminal's construction. EPA's new source review permit could thus expressly require, as enforcible conditions as well as conditions to issuance of the permit, that the terminal applicant assure that the tankers adopt specified emission limitations or devices and procedures to reduce emissions.
It also appears to be possible that a more direct approach, omitting any reference in the permit to the applicant's control of the tankers and imposing emission controls on the tankers themselves, is possible under the Clean Air Act. Authority for such an approach, as for new source review, would also be found in $ 1857c5(a) (2) (B), supra. EPA takes the view, which seems correct, that the broad scope of this language makes it unnecessary to attempt to categorize oil tanker emissions in the traditional mobile/ stationary source classification. In State of Texas v. EPA, 499 F. 2d 289, 316-317 (5th Cir. 1974), the court upheld EPA emission controls on vessels (where the state had failed to act) during loading and unloading, relying on the broad language of 1857c5 (a) (2)(B). While the case concerned only stationary vessels, it seems clear that the expansive construction given EPA's general authority would permit it (and consequently a state) to regulate emissions from tankers at sea. See, e.g., South Terminal Corp. v. EPA, 504 F. 2d 646, 669 (1st Cir. 1974), upholding EPA's imposition of parking controls (again to correct state action) where the court stated that:
"We are inclined to construe Congress' broad grant of power to the EPA as including all enforcement devices reasonably necessary to the achievement and maintenance of the goals established by the legislation."
In Train v. NRDC, 421 U.S. 60, 79 (1975), the Supreme Court held that "the State [delegated authority under the Clean Air Act] is at liberty to adopt whatever mix of emission limitations it deems best suited to its particular situation," In Union Electric Co. v. Train, 96 S. Ct. 2518, 2531 (1976), the Court held that the Clean Air Act may require costly, technology-forcing measures where necessary to the attainment and maintenance of ambient standards, and stated that "Congress plainly left with the States, so long as the national standards were met, the power to determine which sources would be burdened by regulation and to what extent." If the EPA or a State that has been delegated Clean Air Act Authority is attempting to curb pollution where national standards are being exceeded, it is likely that its discretion to impose controls on tankers would be at its greatest.
The Clean Air Act therefore appears to confer on EPA or a delegated State substantial authority to regulate tanker emissions. However, we have been advised by EPA that no specific tanker emission standards have been required by EPA and that the standards and conditions that have been proposed for the Sohio terminal are no less stringent than "the EPA would impose under its existing new source review authority in California. Thus, it seems clear that the Clean Air Act does not preempt compatible regulatory activity by California, and, indeed, that it defers to State regulatory authority in the first instance. More difficult problems arise with respect to the Ports and Waterways Safety Act of 1972.
C. Ports and Waterways Safety Act of 1972. The Ports and Waterways Safety Act of 1972 (PWSA), 33 U.S.C. 1221 et seq., 46 USC 391a et seq., provides at § 1221 that "in order to prevent damage to, or the destruction or loss of any vessel, bridge, or other structure on or in the navigable waters of the United States, or any land structure or shore area immediately adjacent to those waters; and to protect the navigable waters and the resources therein from environmental harm resulting from vessel or structure damage, destruction, or loss," the Coast Guard may regulate vessel traffic routes, operations under hazardous conditions, pilotage, cargo handling, and safety specifications. In Atlantic Richfield Co. V. Evans, Civ. No. C75648M (W. D. Wash, Sept. 24, 1976), the court held that the Act preempted regulations by the State of Washington limiting tanker size, and requiring minimum design specifications and locally licensed pilotage for tankers operating within Puget Sound. The court stated that the purpose of the Act was:
... to establish a uniform set of regulations governing the types of ships permitted within the coastal waters of the United States and the conditions under which they would be permitted to operate. Balkanization of regulatory authority over this most interstate, even international, of transportation systems is foreclosed by the national policy embodied in the PWSA."
The court stated further that "Since the PWSA introduced environmental considerations into the federal tanker regulations, the State of Washington cannot say that there is 'no overlap' between the state and federal laws." In view of the sweeping interpretation given the Act by the court, and its implication that all environmental regulation of tankers now resides with the Coast Guard, the case is of crucial importance to our own question. It is currently on appeal to the Supreme Court, and it may be advisable to await the Court's decision.
However, an analysis of the PWSA in light of the cases discussed above, and of its own language, suggests that even if the court is right on the facts in Evans, its characterization of the PWSA is too broad to require preemption of local laws dealing with air pollution from tankers.
No "clear and manifest" intent to occupy the entire field of tanker regulation can be found in the PWSA. Specifically, its concern with environmental protection extends only to the waters and marine life, and makes no mention of air pollution onshore. Thus there is no reason on the face of the statute to suppose that Congress intended to depart from the general rule stated in Huron Portland Cement, supra, at 442: "in the exercise of [police] power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government." Moreover, even if the PWSA is intended to be a comprehensive scheme of tanker regulation, comprehensiveness alone cannot be equated with an intent to preempt. See, e.g., DeCanas v. Bica, 424 U.S. 351 (1976) and N.Y.S. Dept. of Social Services v. Dublin, 413 U.S. 405 (1973), holding that comprehensive federal statutory schemes may still leave the states with broad powers to achieve complementary goals. As suggested above, tanker regulation to control air pollution onshore would be precisely such a complementary goal, which would not impair the general "federal superintendence" of tanker regulation (under the PWSA) as required by Florida Lime and Avocado Growers, supra. Moreover, the requirements that would be imposed by California (see attached) appear (to one not expert in tanker operation) to create no conflict with Coast Guard regulations, (see Titles 33 and 46 of the Code of Federal Regulations), such as to present an "obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Bath, supra, at 230. As the Court held in Port Huron Cement and Askew, supra, the Court will look to actual rather than potential conflicts where environmental regulations are involved. Of course, if expert testimony were to demonstrate that design changes or operating procedures incompatible with Coast Guard regulations would in fact be necessary, in that case California likely would be required to yield.
One final point to be made in this connection, is that the court in Evans states that the regulations established under the PWSA would be uniform, and that any State action would be preempted on these grounds. Yet the courts have consistently recognized local regulation over navigable waters to protect public health and safety, and the Act itself recognizes that operating and design requirements may depend upon such factors as the environment and geographic location in which the ship is operating. In light of these local variations, there is no inherent need for exclusive federal control, and thus no reason to imply preemption.
II. ASSUMING NO PREEMPTION, THE PROPOSED CALIFORNIA AIR POLLUTION CONTROLS WOULD NOT IMPOSE AN UNCONSTITUTIONAL BURDEN OR COMMERCE
In Huron Portland Cement, supra, at 443, the Court held that the Constitution "never intended to cut the states off from legislating on all subjects relating to health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country." The tests which have evolved to determine whether a local regulation interferes with the free flow of commerce contemplated by the Commerce Clause, were summarized in Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970):
"Although the criteria for determining the validity of state statutes affecting interstate commerce have been variously stated, the general rule that emerges can be phrased as follows:
Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. Huron Portland Cement Co. v. City of Detroit, 362 U.S. 440, 443, 80 S.Ct 813, 816, 4 L.Ed. 2d 352. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities."
Courts also cite to the doctrine that states cannot regulate those phases of commerce which, because of the need for national uniformity, demand that their regulation, if any, be prescribed by a single authority. Minnesota Rate Cases, 230 U.S. at 399, 400 (1913) ; Edwards v. California, 314 U.S. 160, 176 (1941) ; Port Huron Cement, supra at 444.
Of course, before applying the test in Pike, it must be recognized that under Union Electric, supra, the states have almost unfettered discretion under the Clean Air Act. Indeed, § 1857d– 1 has as its premise that lack of uniform requirements among the states is permissible. Thus if Congress, in exercise of its power under the Commerce Clause (bolstered by the Supremacy Clause), determines that the uniform rule shall be lack of uniformity, and that commerce between the states may be reciprocally burdened, then virtually no court is likely to find California's standards unconstitutional. Cf. Askew, supra, where, with a similar nonpreemption provision, the court held that uniformity with regard to damages imposed for oil spills was not required so long as there was no conflict with federal law, although it based its decision primarily on general principles concerning the scope of federal maritime jurisdiction. If in considering the Clean Air Act, the Court held that the nonpreemption clause had only a narrow meaning, and limited Union Electric, then a conventional analysis of burdens would be required.
Accordingly, applying the test of Pike, supra, the "burden" imposed by the California regulations on interstate commerce, would be the Impairment of some ships' ability to deliver oil to Long Beach, since they may not be equipped or be able to be operated in conformity with such regulations. However, the Supreme Court has consistently supported local measures which restrict in some manner the use of navigable waters. See Huron Portland Cement, supra; South Carolina Highway Dept., v. Barnwell Bros., 333 U.S. 177 (1938), regulating oversized vessels used in commercial transportation; Clyde Malloy Lines, Inc. v. Alabama, 296 U.S. 261 (1935), regulating harbor and docking facilities; Pelly v. Washington, 302 U.S. 1 (1937), regulating motor-driven tugs. Thus, in light of California's demonstrable need to control pollution from every source, the argument of excessive burden is very likely to fall. Indeed, many of the requirements proposed by California represent the best modern usage, advocated by numerous tanker experts, required or encouraged by the Coast Guard, and already being adopted by designers and operators. Of course, if it could be demonstrated that the equipment required would necessitate massive retrofitting of a large portion of the ships employed in trading with the West Coast, or that the procedures to be used are massively expensive, a different result might obtain. Such determinations must, of course, await the establishment of a factual record. It may also be possible to argue that the same results can be achieved by utilizing other equipment or procedures, and, again, technical expertise must be brought to bear. However, any such countervailing arguments would have to be balanced against the great weight given to localities' concern with pollution in such cases as Port Huron Cement and Askew, supra.
Under Pike, therefore, it is likely that the proposed state requirements, absent strong evidence to the contrary, would not impose an unconstitutional burden on interstate commerce.
The need for uniformity in ship's outfittingand operation would also be difficult to support in light of the Court's consistent recognition of local communities' needs. However, it could be asserted that U.S. foreign commerce would be burdened unduly by the proposed requirements, thus impairing U.S. foreign relations. (As a practical matter, most of the crude entering the terminal would be Alaskan, which under the Jones Act would be carried in U.S. ships. However, since foreign crude might also enter the terminal, the need to consider the effect on foreign shipping cannot be dismissed.) Under Zscherwig v. Miller, 389 U.S. 429, 432 (1968), a state cannot adopt measures which constitute "an intrusion by the State into the field of foreign affairs which the Constitution entrusts to the President and the Congress." In Zscherwig, the Court invalidated an Oregon statute dealing with reciprocal inheritance, on the grounds that it had more than an incidental or indirect effect on foreign countries, and had great potential to disrupt and embarrass U.S. foreign policy. This suggests that a general balancing of state and national interests, such as that under the Commerce Clause, would be appropriate if a court found that by enacting 1857d–1 the Congress had not authorized states to burden U.S. interstate commerce without being subject to traditional considerations. It is certainly possible that if the traditional reasoning of Zscherwig were applied, the proposed regulations would have more than an incidental effect, and that they could impair U.S. international relations. The cases upholding state authority to regulate the use of navigable waters have not squarely considered this issue, although Askew probably comes closest. To avoid any such risk, therefore, the United States itself could impose the requirements; or foreign shipping (likely to be a relatively small part of the total) could, as in State v. Bundrant, 548 P. 2d 530 (Alaska Sup. Ct. 1976), be exempted. (Bundrant is discussed, infra.)
III. THE UNITED STATES (OR ANY POLITICAL SUBDIVISION NOT OTHERWISE PREEMPTED OR PROHIBITED) CAN REGULATE ACCESS TO ITS PORTS NOTWITHSTANDING THAT SUCH REGULATION AFFECTS CONDUCT BEYOND ITS TERRITORIAL WATERS
The Convention on the Territorial Sea and the Contiguous Zone, 15 U.S.T. 1608, explicitly provides that a nation does not violate the rights of another nation under international law by setting the "breadth" of its territorial sea at three miles. See U.S. v. California, 332 U.S. 19 (1947), recognizing U.S. territorial sovereignty within the three-mile limit However, the authority of the United States (or any political subdivision) to impose requirements on tanker operations more than three miles offshore must find its basis in some other expression of international law. Such authority is critical, since California proposes to extend its requirements 12 miles offshore.
With regard to U.S. citizens (i.e., ships of U.S. registry), the question is simple, in that, except where statutes provide otherwise, the United States has jurisdiction over the acts of its citizens no matter where they occur. Restatement 2d, United States Foreign Relations Law, 130. Under Skiriotes v. Florida, 813 U.S. 79 (1941), upholding application of a Florida penal statute to a Florida citizen who illegally harvested sponges outside the three-mile limit, any state of the United States has similar jurisdiction, provided it is not preempted or otherwise prohibited. Moreover, if the permit were conditioned in such a manner that Sohio itself was directly responsible for maintaining air quality standards, jurisdiction would be over a U.S. (and California) citizen in the first instance. Whether California, by means of a condition to be enforced by a private person (e.g., by contract witn those using its facilities), could "indirectly" regulate commerce with other nations, where (as discussed supra) it could not do so directly, is an interesting question that is almost surely answerable in the negative.
With regard to foreign citizens, the question is made somewhat easier, in that California's rules are conditions for use of the terminal, which "will apply to the voyage of those vessels discharging their cargo at the Sohio Marine Terminal and are not binding upon the vessels when calling at other marine terminals." The conditional posture of these rules, applicable only to vessels actually using the port (notwithstanding that they may otherwise be within territorial waters), is decisive, since it invokes the immemorial right of sovereigns to regulate access to their ports. See 4 Whiteman, Digest of International Law (1965), 259-260, citing the modern authorities including Higgins and Colombos, International Law of the Sea, 2d Ed. § 140, and Fiore, International Law Codified, 183. A sovereign can predicate such access on any conduct, provided that the predicate is reasonable and evenhanded. (9 Whiteman, supra, 107-118); the place of the conduct is irrelevant. Thus, from time to time the United States has banned entry to vessels that have called at the ports of other countries, either for health or political reasons. (It should be noted that for purposes of international law, action by the federal or state government would have the same consequences. The only issue is whether, under U.S. law, California would be preempted or otherwise prohibited from regulating access to its ports.) Moreover, an examination of the relevant international agreements touching on conduct at sea and entry to ports does not reveal any requirement contravened by California's regulations. See e.g., Convention of Safety of Life at Sea, 16 U.S.T. 185.
A more subtle question is whether conditions for entering a port may control conduct upon leaving; clearly, California's proposed rules envision such control. There appears to be no reason why a condition subsequent would be impermissible under international law, although jurisdiction for purposes of imposing a fine could only be had once the the ship next entered port. Of course, if the Sohio Terminal itself, as a condition of its permit, were made responsible for all ships using its facilities, and this were a valid condition as to foreign ships, then any fine would be payable even before the ship's next call.
Assuming that the authority to enforce the proposed rules is to be found in the sovereign's right to condition entry into its ports, it will be unnecessary to rely on cases considering whether the activity of vessels outside the three-mile limit may be regulated generally. The only case holding squarely that vessels operating outside the limit to the detriment of coastal waters, are subject to regulation notwithstanding citizenship is State v. Bundrant, 546 P. 2d 530 (Alaska Sup. Ct. 1976). In that case, the Alaska Supreme Court upheld Alaskan regulations over harvesting king crab both inside and outside the three-mile limit, as applied to citizens of all states. However, the case is only of limited utility, since the court specifically noted that the regulation was not being enforced against non-U.S. citizens, that there was therefore only incidental disruption of U.S. foreign relations, and that Alaska "may never possess authority over foreign fleets in the crabbing area." Id. at 542. Moreover, an earlier, and related Federal case, Hjelle v. Brooks, 377 F. Supp. 430 (D. Alaska, 1974) , held that on grounds of conservation, a state may regulate extraterritorial conduct only if the regulations facilitate conservation of a resource clearly within a state, and that Alaska's earlier attempt at regulation and did not have the requisite nexus. In our own case, the nexus between tanker activity outside three miles, and enforcement of ambient air standards in the basin as a whole, would be beyond factual dispute.
Assuming, therefore, that international law will be invoked, it should be recognized that the statutory authority (as opposed to state police power) under which the applicable conditions would be imposed, could limit authority otherwise available. The Clean Air Act provides that Air Quality Control Regions be formed from state territories, and that states be responsible for the air quality within their own borders. However, there is no suggestion in the Act that this mandate prohibits the protection of air quality where it is degraded by pollutants coming from outside Federal or state territory. Indeed, the Act encourages states to solve common problems. On the other hand, the PWSA, which authorizes control of "navigable waters," has been interpreted by the Coast Guard to permit imposition of conditions only within the three-mile limit. Thus, any conditions imposed beyond the three-mile limit should derive either from the Clean Air Act, new legislation, or state police power.
IV. CONCLUSION
In light of the foregoing, it seems relatively clear that California authorities could impose emission controls on tankers using Sohio's terminal, even where such controls affect conduct outside territorial waters. Under the Clean Air Act, the Federal Government can act where the state has not. The burden on interstate commerce, or on U.S. foreign relations, could affect this conclusion, depending on whether the non-preemption provision in the Clean Air Act is read broadly. and (in the unlikely event it is not) on the actual burdens imposed as evidenced in a complete factual record.
[Footnotes omitted]
[Attachment]
PROPOSED PORT RULES FOR LONG BEACH TO TEXAS PIPELINE MARINE TERMINAL
The following conditions are proposed to provide assurance of necessary environmental safeguards for tanker operations at the proposed Pier J tanker terminal in Long Beach. These conditions will apply to the voyage of those vessels discharging their cargo at the SOHIO Marine Terminal and are not binding upon vessels when calling at other marine terminals.
(1) The master shall insure that vessels utilizing the terminal have sufficient segregated ballast capacity, or are otherwise equipped, to permit the ship to be able to sail from the terminal to a point opposite Point Mugu without taking ballast into cargo tanks and displacing hydrocarbon vapors into the atmosphere. Ballasting operations which result in hydrocarbon emissions and which occur within an area south of Point Mugu and within 12 miles of the California Coast shall constitute a violation of terminal rules and shall subject the offending vessel to a penalty as specified under item 9.
(2) No deliberate expulsion of hydrocarbon vapors from cargo tanks to the atmosphere shall be allowed in the area between and including the terminal, a point opposite Point Mugu, and within 12 miles of the California Coast, except when gas freeing is necessary for emergency repairs.
(3) All unloading operations will be handled using procedures which minimize fugitive emissions. Ullage covers shall not be opened while in port or at any point south of Point Mugu, except for those brief periods necessary for cargo inspection or gauging activities.
(4) Use of the terminal will be limited to vessels equipped with an inert gas system, and operation of the system will be required at all times during unloading. New technology other than inerting which results in an equivalent condition of safety and level of omissions shall also be acceptable.
(5) Steam driven vessels shall not "blow tubes"in the harbor area unless safety reasons demand it due to an unanticipated protracted stay in port or boiler operating safety requirements.
(6) Unloading operations shall be conducted in accordance with IFS Title 33 Parts 154, 155, 156 and shall not begin until such time the vessel or the terminal berth enclosure is properly boomed as a preventive measure against accidental oil spills. A boom is also to be in place during berthing operations and all internal transfers of oil or dirty ballast.
(7) All vessels shall commence using a fuel not exceeding a 0.5 percent sulfur content prior to entering an area south of Point Mugu and within 12 miles of the California Coast, while in the harbor, and upon departure until exiting that same area.
(8) Monitoring of tanker-related air emissions — specifically purging, gas freeing, and cargo tank ballasting — shall occur commencing at Point Mugu, during movement within the harbor, while unloading at the berth, and during departure within an area south of Point Mugu and within 12 miles of the California Coast. Air emissions and associated tanker operations shall be monitored under procedures established by the Long Beach Harbor Department or an appropriate third party. The specific procedures, parameters, and logistics are to be resolved at a later date. All records of such monitoring shall become public information, available for inspection on demand.
(9) Any emissions resulting from a failure to comply with any of the conditions noted above will subject the offender to a maximum $25,000 penalty. The dollar amount of the penalty will be assessed on a sliding scale, taking into account (1) the severity of the offense, (2) whether it was accidental or intentional, and (3) whether the action was taken to protect the safety of the ship, crew, or cargo, or to prevent a more serious environmental consequence. The decision to impose a penalty as well as its dollar amount will be made by a third party selected by the Port of Long Beach, the terminal operator, and an appropriate California or Federal agency.
(10) A citizens environmental committee or comparable group shall be formed in order to consider those comments and complaints initiated by the general public. Said Committee to consist of individual representatives or organizations such as the following: (1) League of Women Voters, (2) Long Beach Chamber of Commerce, (3) Sierra Club, (4) the Terminal Operator and Port of Long Beach (as ex officio members)
(11) All vessels which use the terminal will utilize a pilot. The pilot will be on board at all times necessary to comply with established pilotage regulations.
(12) All vessels shall employ tug boats on docking and undocking which shall meet and leave the ship, assisting as may be required, to, and from the Queensgate breakwater entrance, except if tugs are unavailable due to causes not within the control of the terminal operator.
(13) The master of each vessel shall insure that his main propulsion engines are fully operational and any deficiencies called to the attention of the pilot upon boarding of the vessel or sooner if necessary.
(14) The above rules recognize that the master has responsibility to insure the safety of his crew, ship, and cargo as well as to prevent or minimize environmental damage. The master, therefore, shall have the responsibility of taking appropriate actions when necessary to insure the safety of his vessel, even if it requires violation of one or more of the above conditions. Violation, however, for reasons of safety, will not relieve the terminal operator of the penalties listed in Section 9.
Mr. THURMOND. Mr. President, I am somewhat concerned about the impact of section 16(b) of the bill on our military combat and combat related sources during the period between enactment of this measure and the issuance of Presidential exemptions for such equipment.
Will States and local governments have authority to impose their air emission standards and permit requirements on our military aircraft, Navy and Coast Guard vessels, tanks, and other military equipment during this interim period?
I also would inquire whether the President, under this amendment, would have the authority to issue broad, categorized exemptions covering a wide range of military equipment, or will he be constrained to issue exemptions for individually identified aircraft, vessels, or other equipment?
Mr. MUSKIE. In answer to the Senator's question concerning State and local enforcement of their regulations between enactment of this amendment and issuance of Presidential exemptions, under this amendment, State and local governments are authorized to enforce substantive and procedural standards and procedural requirements for military combat and combat related sources. I realize that imposition of these requirements may cause a hardship for the Department of Defense in attempting to comply, particularly in respect to conflicting air emission standards and permitting procedures. I would expect, however, that immediately following enactment, the Secretary of Defense would identify classes and categories of uniquely military equipment and property for which he intends to seek a Presidential exemption, and that he notify the President of his intention. Once identified, I would hope that State and local officials would respect the legitimate national defense determination of the Secretary of Defense in this respect, and that they would refrain from enforcing State and local air pollution regulations which otherwise might apply to such identified classes or categories until the President has had a reasonable opportunity to act.
In response to the Senator's second question, the amendment specifically authorizes the President to issue broad exemption for any weaponry, equipment, aircraft, vehicles or other classes or categories of property which is uniquely military in nature.
I think that this grants the President broad discretion in identifying classes or categories of property which are uniquely military in nature, and in promulgating regulations exempting such property.