MA Attorney General Files Challenge Against Coast Guard in U.S. District Court

Published Dec 6, 2007 12:01 AM by The Maritime Executive

BOSTON - Massachusetts Attorney General Martha Coakley filed a challenge late yesterday in the United States District Court for the District of Massachusetts to an August 30, 2007 rule issued by the United States Coast Guard, which jeopardizes the safe transport of oil through Buzzards Bay. The new federal rule seeks to invalidate a provision of the 2004 Massachusetts Oil Spill Prevention Act, which requires tugboat escorts for double hull tank barges. The federal rule fails to establish a similar federal requirement to take the place of the existing state requirement it claims is invalid. The state law was enacted in response to a spill of an estimated 98,000 gallons of oil into Buzzards Bay on April 27, 2003, and the absence of adequate federal regulations to protect Massachusetts’ waters from oil spills.

“It was our hope that the Coast Guard would issue regulations that mirrored those that Massachusetts put in place in 2004 to ensure the continued protection of Buzzards Bay and the waters of Massachusetts,” said Attorney General Martha Coakley. “It is unfortunate that it will take further litigation for the Coast Guard to protect Buzzards Bay from the risk of oil spills.”

“Buzzards Bay’s waters are sensitive and pose unique navigational challenges,” said Laurie Burt, Commissioner of the Massachusetts Department of Environmental Protection. “This action is necessary to ensure protection of this special area, where the safety tools to protect the Bay are readily available, but not required by the Coast Guard or embraced by industry.”

The new federal rule mandates tug escorts only for single hull tank barges and merely requires a federally licensed pilot on vessels towing single hull tank barges through Buzzards Bay. Since federal law requires the complete phase out of single hull tank barges by 2015, the Coast Guard’s new rule will eventually leave all tank barges carrying oil through Buzzards Bay un-escorted and un-accompanied by a federally licensed pilot. Under the new rule, the Coast Guard preempted the provision of state law that requires tug escorts for double hull tankers carrying 6,000 or more barrels of oil through Buzzards Bay.

Massachusetts has fought hard to protect its waters from oil contamination:

On January 18, 2005, the United States, later joined by national and international shipping companies, filed a lawsuit against Massachusetts claiming that the United States has the exclusive authority to regulate oil tankers and therefore prohibits Massachusetts from regulating in the same area.

On July 24, 2006, the federal District Court in Massachusetts ruled that federal law overrules state law in certain respects and invalidated much of the Massachusetts Oil Spill Prevention Act.

The Attorney General’s Office and the Coalition for Buzzards Bay appealed the District Court ruling to the United States Court of Appeals for the First Circuit with respect to both the state’s “enhanced manning” requirements for single hull tank barges and tow vessels traveling through Buzzards Bay and its rule mandating tug escorts for single and double hull tank barges traveling through “special interest waters” such as Buzzards Bay.

On June 21, 2007, the First Circuit reversed the District Court’s decision to invalidate these provisions. The First Circuit sent the case back to the District Court with guidance to the lower court for determining whether federal law preempts Massachusetts’ tug escort and enhanced manning requirements.

On October 29, 2007, the United States asked the federal District Court to grant a preliminary and permanent injunction again enjoining the enforcement of the state laws based on the new federal rule.

On November 16, 2007, the Attorney General’s Office and the Coalition for Buzzards Bay vigorously opposed the United States’ request, and it is currently pending before the Court.

The federal District Court has not yet scheduled a hearing on the United States’ request for a preliminary and permanent injunction. The United States has until February 17, 2008 to file a response to the Commonwealth’s counterclaim. In the interim, the new federal rule and the existing state law will remain in effect.

Assistant Attorney General Seth Schofield of Attorney General Coakley’s Environmental Protection Division and Assistant Attorney General Pierce O. Cray of the Administrative Law Division are handling this matter. Margaret Stolfa, General Counsel for the Massachusetts Department of Environmental Protection (MassDEP) and Christine Ayers of MassDEP’s Office of General Counsel, are handling the matter for MassDEP.