Ray v. Atlantic Richfield Co. – Oral Argument – October 31, 1977

Media for Ray v. Atlantic Richfield Co.

Audio Transcription for Opinion Announcement – March 06, 1978 in Ray v. Atlantic Richfield Co.

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Warren E. Burger:

We will hear arguments next in 76-930, Governor Ray against Atlantic Richfield.

Mr. Attorney General, I think you may proceed when you are ready.

Slade Gorton:

Mr. Chief Justice and may it please the Court.

The question before you is whether Washington’s non-discriminatory exercise of its police power to protect a unique environment is preempted by the Ports and Waterways Safety Act of 1972 or some other federal doctrine.

In 1972, the Congress passed the PWSA.

The object of that Act is the safety of vessels and the protection of our environment.

Title I addresses operational safety in ports, waterways, and other congested waters.

It authorizes, but it does not require the coastguard to establish vessel traffic systems and to mandate safety devices and standards for use in connection with those systems.

As the Solicitor General says, it is like providing for safer highways and for traffic controls for automobiles.

Title II directs the coastguard, and in this case it directs it, to set minimum design and construction standards for tankers and it thus, it is thus in the Solicitor General’s words “like providing for safer automobiles.”

In the five years since 1972, the coastguard has setup, pursuant to Title I, a skeletal vessel traffic system on Puget Sound.

In the coastguard’s own words, its major components are “a traffic separation scheme and a vessel moving reporting system,” which of course, supplies only to larger vessels.

When vessels get here, they have this system in the direction of Seattle and Tacoma off of the chart below.

If they are going to Arco’s Cherry Point Refinery, they pass through all of these islands on this system and here to that Cherry Point Refinery.

The system also includes a limited radar which does not cover Rosario Strait through the islands.

Potter Stewart:

The radar which is, you are not talking about radar on the vessel?

Slade Gorton:

I am talking about the coastguard’s radar to see where the vessels all are.

That is about all.

It is a wild exaggeration to call this a comprehensive and all encompassing pattern of regulation.

Because of the urgent need for more stringent local controls caused by the unique nature of Puget Sound, the 1975 Washington State legislature adapted this Chapter 125, the law here under challenge.

That statute, based on a well-founded fear of a disaster comparable to that of the Torrey Canyon, limited the maximum risk from the most disastrous possible oil spill by prohibiting tankers of more than 125,000 tons from Puget Sound entirely, the line drawn by the legislature being roughly like that.

The legislature sought to minimize the risks of any oil spill in Puget Sound by requiring a tug escort for tankers between 40 and 125,000 tons unless they are designed in such a manner as to render a tug escort unnecessary.

These requirements are based on the confined nature of Puget Sound, the lack of maneuverability of large tankers and the near impossibility of the cleanup of a major oil spill in an area, including 196 islands in San Juan County alone.

Mr. Attorney General, how did they happen to land on that 125,000 deadweight ton figure?

Did they pick it out of the air or was there some reason for it?

Slade Gorton:

There was considerable discussion in the legislative debate over the appropriate largest tanker which should be permitted to go through the Sound.

A 225,000-ton tanker, for example, probably could not get through Rosario Straits at all loaded because it would draw too much water.

But I believe that they simple debated over the proposition that at a given size, a major spill, a spill which lost all of the oil on board would totally ruin the entire area.

The state would lack any reasonable cleanup facilities to take care of such a spill.

They hope that between 40 and 125,000 tons, even with a major one, the disaster would not be an irretrievable one.

You are not arguing then that the state might be able to exclude, say, tankers of 50,000, if it landed on that theory?

Slade Gorton:

The question before you would be much different and much more difficult for me under those circumstances, Your Honor.

Very few 125,000-ton tankers ever entered Puget Sound before this.

We are concerned with the fact that there are six refineries on Puget Sound.

They must be supplied more by tanker now because of the fact that the Canadians have cut off the pipeline to Cherry Point.

The two years that we have enforced this law, all of those refineries on Puget Sound have, in fact, been supplied by tankers of less than 125,000 tons to the full extent of their needs.

Potter Stewart:

Are all the refineries up there in the Cherry Point area?

Slade Gorton:

Two refineries are here, two refineries are here, and two refineries are in Tacoma which is awfully sharp to the south.

John Paul Stevens:

How many of those refineries can handle 125,000-ton ships?

Slade Gorton:

One, Arco’s.

Now, there is another point.

Even the Solicitor General fails clearly in his brief to distinguish between Puget Sound and all of the other waters and coastlines of the State of Washington to which this law does not apply because the legislature was making a careful value judgment, leaving open to the larger tankers, should there be a major tanker port in the future, the Strait of Juan de Fuca and the Pacific Ocean Coastline of the state.

In the more than two years, since the passage of 125, as I said, those six refineries have gotten all the petroleum products they needed, operating totally consistently with the state law which has been enforced all that time.

William H. Rehnquist:

Is there a legislative definition or an accepted definition of the line between the Strait of Juan de Fuca and Puget Sound?

Slade Gorton:

The legislature defined the language I have drawn here from a particular like to another particular like.

In 1972, right after the PWSA, the Congress also passed the Coastal Zone Management Act which authorizes coastal states to define and I am quoting from that Act, “permissible land and water uses within the coastal zone.”

Transportation and navigation are among the uses expressly recognized by the CCMA as proper subjects of the State Management Program.

Upon approval by the Secretary of Commerce, the State Plan becomes National Policy and other federal agencies are required to conduct their activities in a manner consistent with the State Plan.

The Washington State Plan explicitly includes Chapter 125 as a “means by which the state proposes to exert control” over oil transportation.

In June of last year, the Plan was expressly approved by the Secretary of Commerce.

Finally, earlier this month, since all briefs except our reply brief was filed, the Congress approved S1522 which bars any increase in crude oil handling capacity at any facility in the state east of Port Angeles, right here, except for local consumption.

Arco’s proposal to utilize a pipeline to the Midwest for Alaskan oil has thus been effectively prohibited.

S1522, like Chapter 125, treats Puget Sound as unique and recognizes the threat of pollution posed by tanker traffic in the Sound.

Now, the state’s law will be avoided of course, if Congress has expressly preempted it or if it conflicts with some federal statute.

The beginning point of your inquiry into that question is explained in Jones v. Rath Packing in the following words.

“We start with the assumption that the historic police powers of the states are not to be superseded by the federal act unless that was the clear and manifest purpose of Congress, but when Congress has unmistakably ordained that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall.”

We start with the obvious proposition that the Congress did not expressly preempt all forms of state control over tanker operations by the passage of the Ports and Waterways Safety Act.

The only reference in the PWSA, arguably indicating an intention by the Congress to preempt state authority is found in Section 102 (b) which contains no express preemption at all, but only a negative inference and I quote that Section.

“Nothing contained in Title I prevents a state from prescribing, for structures only, higher safety equipment requirements or safety standards, then those which may be prescribed pursuant to this Act.”

Arco claims that the plain meaning of that language preempts any state rule affecting tanker operations ipso facto, not so.

Slade Gorton:

Let us examine the inevitable results of Arco’s argument.

First, it would destroy a state-managed vessel traffic system even though the coastguard never setup its own system in replacement, but Section 102 (e) of the Act requires the coastguard to consider existing systems in determining the need for or the substance of the coastguard’s own regulation from which it is obvious that local systems are valid at least until the coastguard supersedes them.

Next, Arco’s assertion flies in the face of the plain language of Section 102 (b) itself which limits the state only to the extent that standards or equipment have been prescribed, in the words of Section 102 (b) by the coastguard.

The coastguard has not adapted general access limitations or tug escort provisions on Puget Sound.

William H. Rehnquist:

Then why did Congress say “structures only” in that language?

Slade Gorton:

Why did they say “Structures only?” From the legislative history of that Act, it was speaking of equipment and standards which go on the vessels; their radar systems, their crew manning requirements, vessel equipment, and safety standards.

These are what go on the vessels.

The paragraphs in the Congressional Report on it indicate that kind of limitation.

William H. Rehnquist:

So it meant that the states could not act in that area?

Slade Gorton:

In that area, yes.

We cannot say what brand or radar or radio that the vessels are carrying.

Moreover, as the Solicitor General says, the legislative history of Section 102 (b) shows that it deals only with these safety equipment standards and not with externals such as tug escorts or access limitations.

Finally, Arco’s position, if we look at that Section very carefully, would not allow the state even to enforce its shoreline zoning requirements as to loading docks, for example, on strictly environmental grounds because such regulations would not be the safety requirements to which Arco believes the savings clause in Section 102 (b) is very strictly limited.

The true meaning of Section 102 (b) is clear.

When the coastguard establishes a vessel traffic system on a waterway, a state may not establish a conflicting system or require the use of different radio frequencies, for example.

When the coastguard prescribes a given type of radar, the state may not prescribe a different type.

Thus, we, on this subject, are in accord with both the District Court and the Solicitor General.

The PWSA does not expressly preempt Chapter 125, but in your preemption analysis in Jones v. Rath Packing, you go into a further test and I will quote that.

“Our task 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.

This inquiry requires us to consider the relationship between state and federal laws as they are interpreted and applied not merely as they are written.”

The purposes of the Ports and Waterways Safety Act, as they are stated in Section 101, are safety and the prevention of environmental harm resulting from vessel damage or destruction.

The purposes of the state act are identical.

Not only does it frustrate the purposes of Congress, it facilitates and enhances them.

The means which the state act uses to achieve those purposes are also consistent with the PWSA.

There is no conflict or friction between the coastguard vessel traffic system as it operates in practice on Puget Sound and the state requirements as they are actually carried out.

For more than two years those systems have worked in total harmony.

In fact, the commandant of the coastguard recently testified to Congress pointing out that state tug escort requirements are but one example of appropriate complimentary state regulation.

I should like you to note that the state’s claim here is an extremely modest one.

We recognize that Congress can preempt Chapter 125 whenever it wishes to do so.

We assert only that it is not done so yet.

Slade Gorton:

We acknowledge that the coastguard, by adapting a valid regulation conflicting with the state statute, can supersede either or both of the operative requirements of Chapter 125.

Which are what?

Slade Gorton:

Which, are the access limit and the tug escort requirements.

You are suggesting that until it does, you are banning the larger tankers as (Inaudible)?

Slade Gorton:

Well, when the coastguard passes a regulation which conflicts with that ban, then we are out.

We understand that.

We do not even —

What about a licensed United States oil tanker?

Slade Gorton:

Under the General Enrollment Act, we do not feel that a license or a registration either to a US-flag or a foreign-flag tanker is in any way conflicting, going all the way back to Gibbons v. Ogden and all the way forward to your latest casein this —

Byron R. White:

So you think the United States is just wrong with respect to licensed United States-flag ships?

Slade Gorton:

Your cases have consistently held that even a license to a US flag vessel does not prevent the state from enforcing an even-handed conservation or environmental regulation, even-handed, that is to say applicable to everyone.

We are only claiming even here that the incomplete and fragmentary coastguard rules and traffic system on Puget Sound has not yet superseded our state rules.

Arco goes on, of course, to argue preemption beyond Section 102 on a more general and less precise grounds, the need for uniformed national standards, the nature of the subject matter, the dominance of the federal interest.

In this field, Arco elevates its preemption argument to the constitution independently of the PWSA, claiming that the field of Chapter 125 is one which the state constitutionally cannot regulate even if Congress has not occupied it.

Note well how broad and expensive this claim is.

If it is accepted, the states could not protect its environment as Washington has even if Congress had not acted at all or perhaps even if Congress had expressly attempted to delegate that authority to the states.

The very Pilotage Laws of 1789 which were approved in Cooley v. Board of Wardens would be unconstitutional under that argument as they dealt with vessel operations exactly as our tug escort requirements do which Arco claim requires uniform national standards.

In this argument, Arco equates the design and construction of oil tankers with their movement in local waters, but whatever one may say about design and construction, local movement is inherently and inevitably a local concern.

For almost two centuries, this Court has allowed the enforcement of local regulations on matters of local concern as long as they do not positively conflict with federal law.

As Gilmore and Black have put it, the states have enacted “massive legislation dealing with shipping matters.” Such legislation which has been approved by this Court includes quarantine regulations, docking, local speed controls, vessel inspection, and conservation legislation designed to protect the environment.

Title I of the Ports and Waterways Safety Act itself recognizes the existence and validity of such legislation and is careful to speak of possible preemption only on the basis of the actual effect of coastguard regulation.

Finally, the Coastal Zone Management Act invites state plans which deal with navigation matters and allows the Secretary of Transportation to transmute them into federal policy.

No resort to a demand for so-called uniformity standing in the air can withstand that this specific congressional recognition of local concerns.

The test of preemption, as it applies to regulation such as Washington’s, is not a vague appeal to the need for national uniformity, but actual conflict.

To the extent that this case is governed by the Ports and Waterways Safety Act, this entire controversy revolves around Title I of that Act and not Title II.

It is in treating the access limitation as a design control that both Arco and the Solicitor General err.

Conceptually, design precedes even construction in the life of a tanker.

Washington State does not require any design features.

Were the coastguard to establish an access limitation based on size in Puget Sound, like or conflicting with our own, for safety or environmental reasons, it would act under Title I of the PWSA, not the design standards of Title II.

This misconception together with one other leads the Solicitor General to view the state’s access limitation less favorably than he does the tug escort requirements.

Slade Gorton:

That second misconception is that the proposition that large tankers cause a greater risk of oil spills than smaller ones is unreasonable, thus, causing our access limitation to fall.

Now, the parties stipulated, this case was tried on a stipulation, to the existence of expert support for the proposition that large tankers were less safe, disputed though it may be and its reasonableness was never an issue between the parties, but as I have already said that there is emphasis.

The legislature had an additional rationale which is not even subject to dispute.

Supertankers clearly cause a risk of greater spills and the state wishes to place a reasonable ceiling on the most serious oil spill disaster to which Puget Sound may be subjected.

That is a rationale concern and justifies the state’s regulation unless and until it conflicts with another established or authorized by Congress.

Your line of cases to which Mr. Justice Blackmun adverted in his question on the enrollment and registrations statutes, clearly permit an even-handed state regulation for environmental purposes way back to the cases first coming after Gibbons v. Ogden, Manchester v. Massachusetts is one of those.

Interestingly enough, your most recent case in the field of preemption deals with exactly that question.

Mr. Justice Marshall, speaking for the court, wrote in Douglas v. Seacoast Products less than six months ago, “States may impose even upon federal licensees, reasonable non-discriminatory conservation and environmental protection measures, otherwise, within their police power.”

That is all we have done in the State of Washington and we should not be only tolerated in that attempt to protect our environment, we should be encouraged.

William H. Rehnquist:

You concede that the Pilotage requirement is invalid as to certain types of ships, right?

Slade Gorton:

Yes, it is because it conflicts with federal law and that has not been an issue in this case.

I will reserve, if I may.

Byron R. White:

Has the coastguard put some size limitations for some areas in the Puget Sound?

Slade Gorton:

No, Mr. Justice White, the coastguard has not addressed this subject.

The coastguard, first, has delegated the course to each of its commanders the ability to write rules. Under those rules, of course, the Puget Sound VTC is created.

There is one —

Byron R. White:

Well, what about the — are there some local rules then about –?

Slade Gorton:

Arco claims that the coastguard has entered this field because of a local rule.

In this case, a local rule which says that the VTC will coordinate vessel movements to avoid hazardous meetings or crossing situations.

Masters and pilots are encouraged, and this is all they say, to adjust the speed of their vessels so as to limit movement of large vessels through Rosario Strait to one direction at a time.

It is found in the pretrial order.

It is agreed that there is an informal, it is not even written, coastguard rule that two 70,000-ton tankers will not pass one another going in either direction in Rosario Strait, but that, of course, is not remotely inconsistent with our greater concern and that, of course, applies not only to tankers, but to every other kind of shipping.

I will reserve the balance of my time, if I may.

Warren E. Burger:

Very well, Mr. Attorney General.

Mr. Sherwood?

Richard E. Sherwood:

Mr. Chief Justice and may it please the Court.

In Florida Lime & Avocado Growers against Paul, Mr. Justice Brennan stated for the Court that the maturity of avocados seems to be inherently unlikely candidate for exclusive federal regulation.

By contrast, we would submit that the subject matter in this case, regulation of the construction, design, and navigation of seagoing tankers, the lifeline of this country’s energy-fueled economy, bringing oil as they do from abroad and now from Alaska is an obvious candidate for exclusive regulation by the federal government and one which, under the Ports and Waterways Safety Act of 1972 as well as other legislation has been preempted to the exclusion of state regulation such as the Washington Tanker Law.

In striking the delicate balance between energy needs and environmental protection, a balance which involved the foreign relations of the United States, 50% of our oil comes from abroad, 95% of tankers are of foreign registry, a balance also which involves the competing interests of the coastal and the inland states, only the federal government has the sensitivity and the tools.

If Mr. Gorton is right and the Tanker Law is just a simple exercise of the police power, and I would note in that connection the view in Southern Pacific and Arizona that one cannot always hide behind the convenient apologetics of the police power, then other states can adapt different size limits, different design requirements, different tug boat penalties.

Richard E. Sherwood:

Alaska has already done so encouraging large tankers, mandating different design characteristics, and 15 states’ amicus curiae are waiting eagerly in the wings.

In this context, I turn to the specific features of the Washington Tanker Law, each of which is preempted by federal law and by coastguard action pursuant to federal law.

First, the size limitation.

We believe that it is clear from the Ports and Waterways Safety Act that a size limit is bad both as a traffic regulation under Title I of the Ports and Waterways Safety Act and as a design requirement under Title II.

1013 of Title I gives the coastguard the power to set size and speed limits.

In the Senate Report, leading up to the Act, at pages 32 and 33, there is a specific statement rejecting the idea of general-size limitation on tankers and a statement of preference for specificity for flexible regulation by the coastguard.

The coastguard has established a vessel traffic system for Puget Sound and despite Mr. Gorton’s view, I would suggest that pages 141 through 198 of the Appendix which spell out that vessel traffic system indicate its comprehensiveness, including specific reporting requirements in Rosario Strait.

Byron R. White:

Mr. Sherwood, would you still say that there was preemption or that there was a conflict if the coastguard did not announced this traffic control plan in Puget Sound?

Richard E. Sherwood:

As to the size limit, I would certainly think so because the coastguard as well as the Maritime Administration —

Byron R. White:

Would you say the existence of the power to control the size was enough?

Richard E. Sherwood:

Yes, I would, Your Honor.

Byron R. White:

Under what case would that be enough?

Richard E. Sherwood:

Well, our view would be under both cases such as Lockheed or Northern States —

Byron R. White:

You think you just have to spell out some intention from the comprehensiveness of the federal law that they did not intend state interference?

Richard E. Sherwood:

Yes.

That where you have a statute which comprehensively regulates a field and delegates the power to balance factors, the assignment of the right to set a size limit, we believe, must be related to an exclusion on the part of any state of the power to set a size limit.

Otherwise —

Byron R. White:

You would have a tougher case without the local traffic plan?

Richard E. Sherwood:

We would have a different case.

I suspect it would be tougher, but the local traffic plan contemplates also that there would be limits on the size of vessels going in both directions in Rosario Strait and the coastguard retains both the power to ban vessels from Puget Sound or from any other waterway of the United States when there is a determination that such a ban is appropriate.

So in our view the size limit is precluded both by Title I, giving the coastguard to set size limits, and by Title II, giving the coastguard the power to set design requirements because the coastguard in mandating design requirements has not drawn any limit on the size of a vessel.

The Maritime Administration, in administering the Subsidy Program, has not drawn any size limitation on the size of vessels which will be functioning in the commerce of the United States and there has been no effort to restrict either the building of vessels in US shipyards or the building of vessels in other countries in terms of their ability to come into the United States.

William H. Rehnquist:

Yet there are some ports in the United States that 150,000-ton tanker just cannot get into even though a state were not to prohibit it, are there not?

Richard E. Sherwood:

Indeed, Justice Rehnquist.

There are very few ports where a tanker larger than 125,000 deadweight tons can presently go.

The three logical port areas are all in the western United States and the State of Washington, by its legislation, would cut off one of those.

William H. Rehnquist:

Well, when you talk about the failure of the Maritime Administration to limit the deadweight of ships, that does not necessarily mean that they contemplated that the larger ship they would permit would necessarily get into any port of the United States?

Richard E. Sherwood:

No, I think they were thinking in terms of two possibilities.

One, existing ports and the other the construction of new ports which may take place at some time in the future, including deep water ports, none of which is has yet been built.

But certainly, the commitment of hundreds of millions of dollars in money without the establishment of a size limitation is evidence that if there is to be a size limitation, it ought to be federally imposed.

Thurgood Marshall:

As I understand, your argument is that you can build the tanker size you want, the state is powerless to keep it out as of today?

Richard E. Sherwood:

Yes, Mr. Justice Marshall, the state is powerless to keep it out and the state —

Thurgood Marshall:

Even though it will wreck havoc, even though there is no question that the bottom will be ripped out?

Richard E. Sherwood:

Well, I think there is no evidence that the bottoms of any of these vessels will or have been ripped out.

Thurgood Marshall:

This is my hypothetical?

Richard E. Sherwood:

Well, in that circumstance, the coastguard has an affirmative obligation to prevent the vessel from entering Puget Sound or any other port.

Thurgood Marshall:

And if the coastguard does not act, the state is powerless?

Richard E. Sherwood:

It would be my position that it would be the obligation then of the state.

Thurgood Marshall:

Could the state pass a law and say “we will not allow any tankers in Puget Sound in which there is a record of them having their bottom ripped out some place else?’

Richard E. Sherwood:

No, I would think again, that would be beyond the power of the state because of the scheme of regulation —

Thurgood Marshall:

So the state just lets them come in and rip the bottom of it?

Richard E. Sherwood:

No, I do not think the state needs to let any vessel come in its waters because the state has the right both to go to the federal authorities as well as to seek the kind of political address which was sought in the case of the Marine Mammal Protection Act at the federal level.

Thurgood Marshall:

And until that is done, the state cannot act?

Richard E. Sherwood:

That would be our position, yes.

We believe that the area of regulation is one which requires that if there would be size limits to be set, then the coastguard in consultation, as it is mandated to consult with the states and with the local authorities is the only proper organ to make those determinations because otherwise you would have each state setting foreign policy, each state making determinations and parenthetically there is nothing whatever in the record which would support the conclusion of Mr. Gorton that there is a safety differential in a vessel larger than 125,000 deadweight tons.

Thurgood Marshall:

In this case, they did, the coastguard and the state did get together on Rosario?

Richard E. Sherwood:

No, the state had no role in Rosario.

Thurgood Marshall:

None at all?

Richard E. Sherwood:

No.

Indeed, to the best of my knowledge there was no preexisting vessel traffic system imposed by the State of Washington.

The first such system came into effect when the coastguard acting under the Ports and Waterways Safety Act adapted that system and the Washington State legislation was two or three years later.

Thurgood Marshall:

I see.

William H. Rehnquist:

Do you say that under the federal act the coastguard could set deadweight limits on tankers?

Richard E. Sherwood:

Well, they clearly could, Mr. Justice Rehnquist.

William H. Rehnquist:

Would it have to set the same limits for every port in the United States or could it vary from commandant to commandant?

Richard E. Sherwood:

Well, it is my understanding that rules could be laid down which would be flexible depending on particular ports and indeed the Section from the Senate Legislative Report that I read to you, contemplates that there would be no across the board size limitation that would be imposed specific area, by specific area or depending upon other conditions, weather, for example, such as the limitations now in Rosario.

William H. Rehnquist:

So you could have a great deal of diversity of regulation under the federal system, as you understand it?

Richard E. Sherwood:

Yes, it is my understanding that the federal system contemplates that there would be diversity of regulation, but that it would be diversity of federal regulation.

Warren E. Burger:

Well, at the present time, I suppose the regulations for vessels docking at Alexandria are quite different from those at New York, or New Orleans, or Mobile?

Richard E. Sherwood:

I am certain that they are.

Warren E. Burger:

Under federal regulation?

Richard E. Sherwood:

Yes.

Warren E. Burger:

I understood the Attorney General Gorton’s argument to be simply that from the state’s point of view a disaster or a spill from 150,000 ton tanker is a much greater disaster than a 50,000 and you do not need any evidence for that, do you?

Richard E. Sherwood:

Well, I would suggest that you would need some evidence because it is a question of whether the entire vessel is destroyed.

The bulk of spills that have taken place have involved far less than the entirety of the vessel’s oil.

Indeed, one has a pattern of dockside spills or very small spills, which is the norm and the bulk of the vessels, I would suggest, are of varying sizes, but there are relatively few catastrophes in which the entire vessel is destroyed.

Warren E. Burger:

But until the coastguard put in new regulations and limitations about bulkheads the contrary was true, was it not, that the larger tankers spilled a great deal more oil than the smaller ones?

Richard E. Sherwood:

I do not believe so, Chief Justice Burger.

It is my impression that one must go well-outside the record on this, but the Office of Technology Assessment of the federal government has issued a report on the subject.

It is my impression that there is no evidence that large tankers create a danger of greater spills than does a proliferation of smaller vessels, particularly in a confined waterway.

Warren E. Burger:

Are you addressing that to the present state of affairs or the earliest spills four or five years ago?

Richard E. Sherwood:

I believe both.

The Torrey Canyon, for example, is a human error in broad daylight and is not something I think that would have been prevented by any form of design requirement which could have been imposed upon the vessel.

Byron R. White:

If it would have been four times as big, it would have been in the worst disaster?

Richard E. Sherwood:

I think that is right, Mr. Justice White.

Warren E. Burger:

I Well, thought that was about all the Attorney General was arguing that the larger tankers were potentially greater risks in these narrow straights and shallow waters?

I did not think he was representing that there was any specific evidence on that but he was arguing from the —

Richard E. Sherwood:

All that we have in the record on this is a stipulation between the parties that there is a good faith dispute as to whether more smaller tankers creates a greater danger than fewer larger tankers.

Warren E. Burger:

Well I take it, you would concede that smaller tankers will expose the state’s waters or these waters in Puget Sound to less hazard than a 150,000-ton tankers?

Richard E. Sherwood:

No, I would not because in order to bring the same amount of petroleum in, you are going to require a larger number of smaller vessels.

So, if you had seven 20,000-ton vessels that will be the equivalent of one 140,000-ton vessel.

Thurgood Marshall:

Mr. Sherwood, but will you not agree that a large tanker is less maneuverable than a small tanker?

Richard E. Sherwood:

It is less maneuverable under certain circumstances.

Thurgood Marshall:

Less maneuverable.

Richard E. Sherwood:

No, I think that is a function of the equipment.

Thurgood Marshall:

Would you agree that in Puget Sound and in Rosario Straits, a huge tanker is less maneuverable than a small tanker?

Richard E. Sherwood:

No, I would not.

My view on that would be that while it might require a longer time to stop because of the size of the vessel, but it would depend on the characteristics of the particular vessel as to whether you had danger of lack of maneuverability.

Indeed, the coastguard, in imposing vessel equipment requirements, has not attempted to differentiate between vessels larger than 125,000 deadweight tons, the basic rules that have been adapted under Title II of the Ports and Waterways Safety Act have dealt with vessels larger than 20,000 deadweight tons or larger than, in some instances, 1,500 deadweight tons.

Moreover, neither Rosario Straits nor Puget Sound is a tiny or shallow place.

Thurgood Marshall:

Is it not true in average maritime collision case you find that the larger ship is less maneuverable?

It could be Griffin on collisions, is that not what Griffin said?

Richard E. Sherwood:

I am not familiar with Griffin on collisions, but my view on that, Mr. Justice Marshall, is that it is a function of the aging equipment of the vessel.

Thurgood Marshall:

I think what you say is that you have a large ship with a perfect steering mechanism and a small ship with a beat up one, that they are equal.

I am considering that they both are equally well efficiently equipped and staffed and sober?

Richard E. Sherwood:

Well, if they had identical characteristics, I would suppose that a smaller vessel would be somewhat more maneuverable, but in an area that is as broad as Rosario Strait more than a nautical mile wide and as deep as Puget Sound and if you look at Exhibit B to the Appendix, you will find that Puget Sound in most places is deep enough to accommodate any vessel afloat.

Thurgood Marshall:

What if they have a single file in the Strait?

Richard E. Sherwood:

Because the coastguard has concluded that, as to the large vessels, it is the safer way to go.

Byron R. White:

Mr. Sherwood, what federal interest could not be protected here by the coastguard if it wanted to protect it or by the Secretary if they really wanted to preclude the state regulation?

It would be easy to preclude any of these state regulations, would it not?

Richard E. Sherwood:

Yes and it is our position that the coastguard has precluded them.

Byron R. White:

I know, but if there is any argument about it, the coastguard can make it unmistakably clear, could it not?

Richard E. Sherwood:

I just do not think, Mr. Justice White that the coastguard is going to function in a fashion in which it is making determinations that it is barring a particular law.

I think, rather, that the way in which it has acted under the Ports and Waterways Safety Act has been to adapt affirmative requirements.

For example, there are four design features in the Washington Tanker Law which Mr. Gorton did not advert to requiring that there would be double bottoms, twin screws, extra propulsive mechanisms, and twin radars.

Byron R. White:

You are still not addressing yourself to my question.

My question is if it wanted to, it could make it specific?

Richard E. Sherwood:

In theory, the coastguard could say “we prohibit you in doing this,” but in practice, there is no evidence that the coastguard —

Byron R. White:

If it said “the following requirements will be observed and no others,” it may be imposed, I suppose they could say that?

Richard E. Sherwood:

Yes, it could say that, but under the statute there is no reason why they should say it when you have got on the one side the 102 (b) language which says that states are limited.

Byron R. White:

There is a reason if the federal authorities think that a state should be disentitled to impose any stricter requirements than the federal rule and there are many areas where states are permitted to impose stricter requirements.

Why should Washington not impose stricter requirements here?

Richard E. Sherwood:

Well, the coastguard has taken the position as its Chief Counsel indicated at the time that the law was passed, that it was preempted by the Ports and Waterways Safety Act, and therefore —

Byron R. White:

I do not know that we were bound by the Chief Counsel of the coastguard?

Richard E. Sherwood:

I am confident that you are not because you are interpreting a statute of general application with a legislative history.

Byron R. White:

Well, I suppose if it were decided that the law in its present form, including the coastguard regulations, do not preempt or do not foreclose or preclude this system of regulation by the State of Washington that the coastguard, if it wanted to, could do something about it.

Richard E. Sherwood:

Yes, but the question is what must the coastguard do.

Take, for example, tug boats.

The coastguard has issued a notice of intended rule making for the general requirement of minimum standards for tug boats.

It has given the captain of the port the responsibility to require tug boats whenever it wishes under both Titles I and Title II. It has actually imposed a requirement in the margins not left open for it by the Washington authorities.

Richard E. Sherwood:

In Alaska, it has imposed a narrower requirement than the state requirement in Alaska waters and that is presently being contested on the same basis that if the federal authorities do not exercise the full scope of their power under the Ports and Waterways Safety Act, it creates an intolerable situation for both vessel design and vessel movement if each state is in a position to adapt its own regulations on the point.

William H. Rehnquist:

That is almost a constitutional argument there though, is it not, because you have a grant of authority by Congress to federal administrative authorities like the coastguard, they choose to not exercise it and then you say it just creates an intolerable burden because they have used their discretion given to them by Congress not to do something?

Richard E. Sherwood:

Well, I would suggest Justice Rehnquist, that you would otherwise create a situation in which each time the coastguard considers and rejects something, twin screws for example, that a state would then be in a position where it could add on the requirement so long as it was something that the coastguard had not said was prohibited for states to do.

William H. Rehnquist:

Well, that would be a stronger case though if the coastguard had considered it and rejected it to have the state then go ahead and add it on, would it not?

Richard E. Sherwood:

Well, the coastguard has here considered and rejected each of the design features of the Washington law.

William H. Rehnquist:

But as I understand the design features, that requirement can be completely avoided by taking a tug boat?

Richard E. Sherwood:

It can at this time in Washington with the imposition of a penalty in the magnitude of some hundreds of thousands of dollars per year.

William H. Rehnquist:

But you mean if the vessel employs the tug boat, it has to pay a penalty too?

Richard E. Sherwood:

Well, there is good faith dispute as to the efficacy of tug boats in doing anything because they are not attached to the vessel.

They trail along behind it.

They are different from the federal requirement and thus our view is that that is a penalty as the Solicitor General very candidly stated in discussing the subject.

If Washington can do it here, each other coastal jurisdiction can impose its own variant. It can impose its own design requirements.

It can impose its own alternatives as to how you get around the design requirements and you have again a situation in which the purpose of the federal statute and the Tank Vessel Act before the Ports and Waterways Safety Act, to promote uniform and comprehensive regulation is completely undermined.

William H. Rehnquist:

If the coastguard is in charged with administering this Act and if it thought that purpose was being undermined as Justice White has suggested, it could prohibit it tomorrow and it has not?

Richard E. Sherwood:

Well, the coastguard, we submit, has acted in the only legible way that it can in dealing with the alternative regulations.

It has made known its position of protest both in Washington and in Alaska.

It has gone about the regulation of size and the design and the movement of the vessels and has done so in a fashion which is inconsistent with competing state regulation even if the states are seeking to help out.

Byron R. White:

If this court suggested that whatever it has done is not enough, I suppose the coastguard would then know that it is not enough and would you say that the coastguard had the power under any of these statutes that are involved to foreclose state regulation, state redesign-requirements for example?

Richard E. Sherwood:

I would believe that it clearly would and it is our position that it in fact has exercised it.

Byron R. White:

I understand that.

I thought you were urging also that the federal statute contemplated perhaps non-uniform regulation in many respects.

Richard E. Sherwood:

Yes, I believe it does.

Byron R. White:

Well, but you just said it contemplated uniform —

Richard E. Sherwood:

When I say uniform, I mean uniform by one body being the umpire that is the point of the federal system is that there are political disputes —

Byron R. White:

I thought you indicated that the coastguard might put on different requirements at different ports?

Richard E. Sherwood:

As indeed, it has.

It has different vessel traffic systems in the various ports which it regulates.

Byron R. White:

So, the fact that a company might have to satisfy some requirement in Puget Sound and something different in San Diego or in New York is nothing so horrendous, is it?

Richard E. Sherwood:

It is a question of how many political entities a company must deal with and the company would then be placed at the tender mercies of 50 different state legislatures rather than —

Warren E. Burger:

But you do not have 50 different states with ports, do you?

Warren E. Burger:

How many are there?

Richard E. Sherwood:

Well, actually there are a number of inland states that have taken a position in both directions in this case, including those that are on the great lakes and those that are on the rivers as to their right to regulate and obviously it would not be 50 Mr. Chief Justice.

Warren E. Burger:

I take it your point that if let us assume that there are 20 different ports that take tankers of 50,000 or over, that at least there is one coordinating central authority that is recognizing the reasons for a different set of standards in Mobile Bay and Puget Sound, at least the right hand knows what the left hand is doing there?

Richard E. Sherwood:

Precisely.

Our view also would be that the coastguard can preempt under the Ports and Waterways Safety Act only if the Ports and Waterways Safety Act itself is regarded as preemptive, that is it is very difficult as a logical proposition to understand how if the statute does not do any preempting, it can be read as giving an abstract power of preemption and at the same time of course, the coastguard has done in what we would submit as the only logical way, the non-imposition of size limits except selectively, the non-imposition of design requirements as contemplated by Washington, with the imposition of plenty of other design requirements and the development of tug escort systems in areas where things appropriate and under specific circumstances.

I would also note that there is of course a commerce issue which is an equally significant one because under Kelly, there is no reason to think that this is on seaworthiness in the commonly accepted sense and that there is a burden under such cases as Southern Pacific and Arizona, Beard, and May Pier that there is an impact on foreign policy because you have, as set forth at considerable length in our brief, the problem of negotiating with other countries about what the size limits are going to be, what the design requirements are going to be.

William H. Rehnquist:

What about Cooley against the Board of Wardens, that involved a requirement take on a pilot, does it not?

Richard E. Sherwood:

Yes and the only historic exception, Mr. Justice Rehnquist, and the only one that I am able to find aside from the limited regulation of docksides is that Pilotage since 1789 has been regarded as something where you can have a local pilot for vessels that are coming from abroad.

But I would submit that that is the full teaching of Cooley and that the other cases in the field indicate, as does the new statutory scheme, that there should be exclusive federal regulation.

Warren E. Burger:

Mr. Sherwood, in many areas, the affected states dealing with a problem like this get together with the federal government and work things out.

Does this record show or is it a matter of public notice that there has or has not been such coordination between federal and states authorities?

William H. Rehnquist:

Well, the record shows one letter from Governor Evans to the President.

Warren E. Burger:

I was speaking more generally, the states generally with the federal government rather than just Washington?

William H. Rehnquist:

Indeed, Mr. Chief Justice Burger, the statute contemplates that there would be consultation and each time the coastguard adapts a regulation either under Title I or Title II, there is an opportunity indeed mandated for comment by state and local authorities and there has been a wide pattern of comment by state and local authorities.

I would suggest, however, that the record is absolutely blank as to the State of Washington ever asking that the design requirements or the size limitation be imposed federally.

Warren E. Burger:

Your time has expired.

We will resume at 1:00 with the Attorney General.[Recess]

Mr. Sherwood, Justice Blackmun has a question for you before we proceed with the Attorney General.

Harry A. Blackmun:

Mr. Sherwood, am I correct, is it agreed that the District Court is to be reversed with respect to the presumption ruling concerning registered vessels as distinguished from enrolled vessel?

Richard E. Sherwood:

Well, it is our understanding, Mr. Justice Blackmun, that if the Court affirms the striking down of the entire Pilotage provision that there was a preexisting provision of Washington law which did require state pilots on all vessels which were registered and, thus, if the Court struck down that provision in its entirety from the tanker law, there would be in place a Washington requirement of pilots on the vessels that come from abroad.

Therefore, I think it becomes a matter essentially irrelevant as to which way the Court goes on that point, as if it struck down the entire Pilotage provision, there is the preexisting Washington law, if it struck down only that portion pertaining to enrolled vessels, that also would be an appropriate disposition.

Harry A. Blackmun:

Secondly, and this is perhaps of no relevance, do any or all of our coast tankers carry foreign flags?

Richard E. Sherwood:

Yes.

Harry A. Blackmun:

Is that on the record?

Richard E. Sherwood:

Yes.

Harry A. Blackmun:

All of them?

Richard E. Sherwood:

No, the majority of the vessels owned by the company from the record are US-flag, but the bulk of the vessels that have brought foreign crude into Puget Sound for Atlantic Richfield were foreign-flag, that is, the 15 vessels that were larger than 125,000 deadweight tons were all vessels not owned by Atlantic Richfield, but rather were chartered by it and were foreign-flag vessels.

I think you can see from the record, Mr. Justice Blackmun, the list of all of the vessels that have come in and they run a patchwork of foreign-flag and US-flag, some of them owned by the company and some not.

Harry A. Blackmun:

Can I assume they possess federal licenses from the US?

Richard E. Sherwood:

Yes, all of the Atlantic Richfield vessels have the relevant federal licenses and permits under the Tank Vessel Act and certification under other federal statutes and similarly all of the vessels that are foreign-flag have the appropriate arrangements for reciprocal treatment under our laws.

Harry A. Blackmun:

That is all I have.

John Paul Stevens:

Mr. Sherwood, may I ask you one question that I did not have a chance to ask before lunch?

Does the record tell us anything about the safety advantages, if any, of having the tug escorts that you describe as a penalty for not having the design requirements under 125,000 tons?

Richard E. Sherwood:

The record does not I believe, Justice Stevens, tell us anything other than the existence of a good faith dispute.

Although, there are portions of the record, the environment impact statement for example, of the coastguard in adapting its design requirements which allude to tug escorts as a possible approach toward vessel safety in some limited circumstances.

There is also in the record the instances where the coastguard on a quite pinpointed basis, good deal different from the way the State of Washington has done it, has required tug escorts both in Puget Sound for LPG tankers and also in Alaska.

John Paul Stevens:

Thank you.

Warren E. Burger:

Thank you, Mr. Sherwood.

Mr. Attorney General?

Slade Gorton:

In its report which accompanied the passage of the Ports and Waterways Safety Act, the Senate stated “in terms of maneuverability, the propulsion units on 250,000-ton tankers are the equivalent to 1/3 horsepower motor on a 40-foot boat.”

This is something of which the legislature of the State of Washington was conscious when it passed this law. The controlling depth of Rosario Strait is 60-feet and a 120,000-ton tanker has a draft of 52-feet loaded.

By the time we get to 190,000 deadweight tons, it becomes 61-feet.

The state legislature wished at least that small margin of safety and finally —

Warren E. Burger:

Is your emphasis there also on the maneuverability of such a large craft?

Slade Gorton:

Of course it is and that is from the Senate Report.

There are obviously less maneuverability over the smaller craft.

It takes, for example, even at 120,000-ton size 2.5 miles to stop a tanker at 16 knots.

By the time the tanker is 190,000 tons, it takes 3.5 miles to stop it.

Warren E. Burger:

Do those tankers ever go 16 knots in that area?

Slade Gorton:

I doubt it, they cannot among other things Mr. Chief Justice because they are required to have tug escorts and the tug escorts could not keep up with them at 16 knots.

That is, effectively, we slow them down with the tug escort requirement.

Harry A. Blackmun:

Well of course, on those figures there is a limit. In the strong wind in Rosario Strait, a canoe is smaller than a 120,000 deadweight ton vessel and yet it would be a lot less maneuverable?

Slade Gorton:

It would be.

That is correct, Your Honor.

That might be less than the 1/3 horsepower of a 40-foot boat, but the canoe, well, it might put you in danger, but it would not put the environment in danger.

Harry A. Blackmun:

It is not a straight line of comparison right down?

Slade Gorton:

No, it is not an absolute straight line comparison.

Mr. Sherwood referred to 16 states which are waiting in the wings to pass highly inconsistent legislation from that of the State of Washington.

The simple answer to that question, under the PWSA, is that the minute one of those states passes a statute which creates a true, rather than a fictional conflict with those of the State of Washington and trade which involves the two, the coastguard will have the immediate power to step in and resolve it overriding either our regulation or that of the state or both, but that situation simply has not taken place yet and may well never take place.

Warren E. Burger:

Are we to take that as meaning that the coastguard can step in today and take care of all Mr. Sherwood’s problems?

Slade Gorton:

Precisely, Mr. Chief Justice, if the coastguard wishes to do so.

Remember, neither the District Court nor this Court has permitted an injunction during the course of this litigation to prohibit our state from enforcing the law.

It has been enforced since it went into effect in 1975.

The coastguard has been obviously totally aware of it.

The coastguard has obviously, by its lack of action, taken it as being consistent with its own regulation.

The Commandant of the coastguard, in testifying before the Congress quite recently, spoke of the tug escort requirement as being just one form of complimentary state regulation.

So we built up a totally fictional conflict here.

Finally, Mr. Justice Rehnquist asked Mr. Sherwood whether or not there was some penalty in connection with the tug escort requirements for not meeting the design desires of the State of Washington and I do not believe he got an answer to that.

There is of course, Mr. Justice Rehnquist, no such penalty.

It is simply a quaint characterization by Arco of the tug escort requirements which are valid and important environmental protection measure.

Thank you, Mr. Chief Justice.

Warren E. Burger:

Thank you, Gentlemen.

The case is submitted.