No. 98-1701

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

v.

GARY LOCKE, GOVERNOR OF WASHINGTON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

SETH P. WAXMAN
Solicitor General
Counsel of Record
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217




In the Supreme Court of the United States

No. 98-1701
UNITED STATES OF AMERICA, PETITIONER
v.
GARY LOCKE, GOVERNOR OF WASHINGTON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

REPLY BRIEF FOR THE UNITED STATES

The Ninth Circuit held in this case that state rules governing the operationof oil tankers and the staffing, training and qualifications of their officersand crew are categorically not preempted, even if they conflict with CoastGuard regulations. As we explain in the petition, that holding cannot bereconciled with this Court's decision in Ray v. Atlantic Richfield Co.,435 U.S. 151 (1978), or with the text and structure of the Ports and WaterwaysSafety Act of 1972 (PWSA) and the Oil Pollution Act of 1990 (OPA). See Pet.14-24. We also explain that the decision below gravely impairs the longstandingauthority of the Coast Guard to establish uniform national standards forvessels in interstate and foreign commerce, undermines the United States'binding commitments to the existing international regime of shipping regulation,and threatens the ability of the United States to speak with one voice inthe future development of international standards to promote vessel safetyand protect the marine environment. See Pet. 24-30.
Respondents do not dispute that the question presented is important, nordo they take issue with our submission regarding the international repercussionsof the decision below, which are evidenced by the diplomatic protests of14 of this Nation's major maritime trading partners. See Pet. 26-27. Rather,respondents oppose certiorari principally on the grounds that the decisionbelow is correct and that Congress has authorized the states unilaterallyto dismantle the regime of national and international tanker regulationin the manner approved by the court of appeals. That submission is withoutmerit.
1. The decision below squarely conflicts with this Court's decision in Ray.There, the Court held that Title II of the PWSA regulates the field of tankerdesign, equipment, and construction, and that any state law on those subjectsis therefore automatically preempted. 435 U.S. at 160-168. The Court furtherheld that, although Title I of the PWSA does not similarly preempt the entirefield of the operation of vessels in local waters, a state law within thatfield is preempted if the Coast Guard has promulgated a regulation on thesame subject. Id. at 171-178; see Pet. 15-16.
Respondents Natural Resources Defense Council, et al. (NRDC), dispute thelatter point, relying on the statement in Ray that, "[o]f course, thata tanker is certified under federal law as a safe vessel insofar as itsdesign and construction characteristics are concerned does not mean thatit is free to ignore otherwise valid state or federal rules or regulationsthat do not constitute design or construction specifications." Br.in Opp. 16-17 (quoting 435 U.S. at 168-169). But that sentence does notmean that all state laws addressing subjects other than design and constructionare categorically saved from preemption. To the contrary, the Court referredto state rules that are "otherwise valid," and it then proceededto consider whether state rules governing the operation of vessels in PugetSound were preempted under Title I of PWSA. See 435 U.S. at 171-178.1
Significantly, moreover, less than eight months after Ray was decided, Congressrevised and reenacted both Title I and Title II of the PWSA, without disturbingthe Court's holdings in Ray regarding the preemptive force of Coast Guardregulations. See Port and Tanker Safety Act of 1978, Pub. L. No. 95-474,92 Stat. 1471. In doing so, Congress directed the Coast Guard to consultwith and consider the views of "officials of State and local governments"before issuing regulations under the PWSA. §§ 2, 5, 92 Stat. 1478,1484 (now codified at 33 U.S.C. 1231(b)(2), 46 U.S.C. 3703(c)(2)). As weexplain in the petition (at 21), those provisions plainly do not contemplatethat-after the Secretary has considered the States' views, taken internationalstandards and other relevant factors into account, and elected to adoptuniform national standards on a particular subject- the states are thenfree to adopt divergent laws on the very same subject.

2. The State concedes that a state rule governing the operation of oil tankersor the staffing, training and qualifications of their officers and crewis preempted under Ray if it "stands as an obstacle to the accomplishmentand execution of the full purpose and objectives of Congress." Br.in Opp. 17; see Hines v. Davidowitz, 312 U.S. 52, 67 (1941). The State argues,however, that all of its Best Achievable Protection (BAP) rules survivethat standard, for three reasons. None has merit.
a. The State contends (Br. in Opp. 24) that a state rule is preempted underthe PWSA only if it is impossible for a vessel to comply with both the CoastGuard regulation and the state rule. That argument is incorrect. In Ray,this Court held that the State's rule barring all vessels in excess of 125,000DWT from Puget Sound was preempted not because it would have been impossiblefor a vessel to comply with both that rule and the Coast Guard's more limitedrule (since a vessel in excess of 125,000 DWT could have complied with bothif it stayed out of Puget Sound altogether), but because the Coast Guardhad taken a different approach and decided not to impose a complete prohibition.See 435 U.S. at 173-178; accord id. at 171-173 (similar analysis of statetug-escort rule). Furthermore, as the State elsewhere concedes, physicalimpossibility is only one ground for finding conflict preemption; statelaw also is preempted if it stands as an obstacle to the full accomplishmentof Congress's purposes (see Br. in Opp. 11, 17)-as Ray itself makes clear,both in its recitation of general preemption principles, see 435 U.S. at158 (quoting Hines, 312 U.S. at 67), and in its preemption holdings underTitle I of the PWSA, 435 U.S. at 169-178.
b. The State also contends (Br. in Opp. 18-24, 25) that its rules are notpreempted because they serve the same general purpose as the PWSA-the preventionof oil spills. A mere similarity of general purposes, however, does notsave state law from preemption; the preemption inquiry turns on how thefederal law achieves its purposes. "[N]o legislation pursues its purposesat all costs. Deciding what competing values will or will not be sacrificedto the achievement of a particular objective is the very essence of legislativechoice -and it frustrates rather than effectuates legislative intent simplisticallyto assume that whatever furthers the statute's primary objective must bethe law." Rodriguez v. United States, 480 U.S. 522, 525-526 (1987).
That principle applies with particular force here, because the protectionof oil spills is not the only (much less unyielding) purpose of the PWSA.As this Court explained in Ray, the PWSA embodies a considered judgmentby Congress that the Coast Guard must have authority to adopt uniform nationalrules when it finds that approach appropriate after balancing all relevantconsiderations, see 435 U.S. at 161-168, and that even on matters of morelocal concern, the decision as to what standards will govern should be madeby a single entity (the Coast Guard), rather than by the 23 coastal states,each acting individually, see id. at 169-171, 175-178. The PWSA also embodiesa judgment by Congress that issues concerning the design and constructionof both United States and foreign-flag tankers and the staffing, dutiesand qualifications of their officers and crew should be addressed througha system of international negotiation and reciprocity, and that the CoastGuard must be able to pursue that approach so that the Nation may speakwith one voice and promote workable international standards. See id. at166-168; Pet. 2-7, 21-22, 24-28. Respondents' view that any state law thatpurports to promote the prevention of oil spills is not preempted ignoresthose weighty congressional objectives.
c. Ultimately, the State relies on Section 1018 of OPA, 33 U.S.C. 2718,in arguing that all of its rules are valid. See Br. in Opp. 18-22. Thus,the State asserts that Congress "used very broad language in subsections(a)(1) and (c)(1) to signify its intent that no areas of state authorityover the discharge of oil were preempted" (see Br. in Opp. 19), andthat OPA therefore divested the Coast Guard of the power this Court hadpreviously recognized in Ray to issue regulations that preempt state rules(Br. in Opp. 28-30). See also NRDC Br. in Opp. 2-4, 13-16, 21-23. The textof Section 1018 refutes that assertion. Section 1018 provides only that"[n]othing in this Act"-i.e., nothing in OPA itself-shall affectthe authority of the States to impose certain requirements. It in no wayaffects the preemptive effect of other Acts, such as the PWSA, or of CoastGuard regulations issued under those Acts. See Pet. 22. To the contrary,the Conference Report on OPA expressly states that it "does not disturbthe Supreme Court's decision in Ray v. Atlantic Richfield Company, 435 U.S.151 (1978)," H.R. Conf. Rep. No. 653, 101st Cong., 2d Sess. 122 (1990),which confirmed the preemptive effect of Coast Guard regulations issuedunder the PWSA.2
The State attempts to explain away the Conference Report's affirmation ofRay by asserting that "Ray held only that the field of tanker designand construction was preempted." Br. in Opp. 22. Having misstated theholding in Ray (see pp. 2-3, supra), the State then imputes its misunderstandingto the Conference Committee that inserted Section 1018. Congress's intentnot to "disturb" the "decision" in Ray must includeRay's holding that Coast Guard regulations addressing other subjects underthe PWSA preempt conflicting state rules.
Unlike respondents, the court of appeals recognized that Section 1018 byits terms does not apply to the PWSA or other statutes that confer authorityon the Coast Guard to issue regulations that preempt state law. See Pet.App. 11a-12a. The court nevertheless held that Section 1018 of OPA, as Congress'smost recent statute in the field, has a sort of penumbral effect that diveststhe Coast Guard of that authority under other statutes. Id. at 15a-16a.Respondents make no effort to defend that startling proposition, which cannotin any event be reconciled with the bedrock principle under the Constitutionthat Congress can change the law only by passing a new law. See Pet. 22.
The Ninth Circuit's ready acceptance of the notion that nothing more thanthe general tenor of OPA could divest the Coast Guard of its preemptiveauthority in an area so dominated by national and international interestscontrasts sharply with the First Circuit's recent decision in National ForeignTrade Council v. Natsios, No. 98-2304, 1999 WL 398414 (June 22, 1999). There,the court noted that "[p]reemption will be more easily found wherestates legislate in areas traditionally reserved to the federal government,and in particular where state laws touch on foreign affairs." 1999WL 398414, at *31. The First Circuit therefore rejected Massachusetts's"unilateral strategy toward Burma [in imposing trade sanctions, becausethat approach] directly contradicts the federal law's encouragement of amultilateral strategy." Id. at *35. The Ninth Circuit, by contrast,has permitted Washington to embark on a "unilateral strategy"of tanker regulation, notwithstanding that the Coast Guard, pursuant tocongressional directives, has worked with other nations to develop a multilateral,international regime.3

3. For the foregoing reasons, the Coast Guard plainly retains its powerto issue regulations that preempt state rules on the same subject. CoastGuard regulations may have that effect where they expressly provide thatstate rules are preempted (see 98-1706 Intertanko Pet. 7-8, 22-23), or wherethe state rules would conflict with Coast Guard regulations. Without attemptingto canvas all of the Washington rules that are (or may be) preempted (seeid. at 11), we shall briefly respond to the State's contention (Br. in Opp.25-28) that its rules addressing the four subjects discussed in our petitionfor certiorari (at 17-20) do not conflict with Coast Guard regulations.
Operating Procedures; Restricted Visibility. Enforcement of the BAP rulesestablishes a direct conflict with federal regulations regarding crew rest.Although the State asserts (Br. in Opp. 26) that its regulations have littlepractical conflicting consequence because they only apply to "the 60miles between buoy J and Port Angeles where pilotage waters begin,"that assertion is incorrect. To comply with the additional watch functionsprescribed by the state BAP rules, a vessel would have to encroach by atleast 4 hours into the mandated rest period. See Pet. 17. That encroachmentoccurs in violation of federal regulations, which the State cavalierly dismisseswith the opinion that "additional rest for a crewman might be requiredlater." Br. in Opp. 26.
Drug and Alcohol Testing and Reporting. The State contends (Br. in Opp.27) that its BAP rules do not conflict with international standards becausethose standards are merely "guidance." The State ignores, however,that its rules differ from the Coast Guard's regulations, and it does notdeny that its rules purport to apply to vessel activities anywhere in theworld, even to vessels that might arrive in Washington waters weeks or monthslater. See Pet. 18.
Crew Training Policies. The State insists that we are "simply wrong"(Br. in Opp. 27) in noting that the training required by the State goesbeyond national and international standards, but the most it is preparedto say is that its rule is "very similar" to the InternationalConvention on Standards of Training, Certification and Watchkeeping forSeafarers. That bare assertion is scarcely sufficient to establish thatthe state training requirements are not preempted. Moreover, even if thestate rule on this or some other subject is substantively the same as thatset forth in Coast Guard regulations or international standards, the assertionby a State of independent authority to enforce its own rules against foreignvessels would seriously disrupt the federal scheme. See pp. 9-10, infra;Pet. 5-7, 19.
Language Proficiency Requirements. The State contends (Br. in Opp. 28) thatits rule is "consistent with the international standard," butthat contention is patently incorrect. As we explain in the petition (Pet.19-20), and, which the State makes no real effort to rebut, there is a significantdifference between an officer's being able to communicate with those whoare part of the navigation watch with respect to matters of watchkeeping,and an officer's being able to "speak a language understood and spokenby subordinate officers and unlicensed crew," Wash. Admin. Code §317-21-250(1) (1998), most of whom bear no relation to the watchkeepingfunction.
Although the State disagrees with our analysis of the conflicts as to particularrules, and presumably others that should be assessed on remand, the Statedoes not appear to contest our central contention--that the preemption questionshould have been assessed by the courts below on a rule-by-rule basis todetermine which state rules conflict with Coast Guard regulations. See Ray,435 U.S. at 158. That approach best balances the true federalism interests:leaving room for the exercise of state police powers in areas not preemptedby federal regulations, while ousting particular rules that frustrate theaccomplishment of federal objectives. That approach cannot be implemented,at least on the West Coast, so long as the Ninth Circuit's decision stands.

4. The decision below has significant adverse repercussions for the UnitedStates' ability to fulfill its international obligations and to engage inmultilateral negotiations regarding international shipping. The State arguesthat "the claim of international uniformity is illusory," Br.in Opp. 23, largely because of difficulties with foreign flag vessels' allegednoncompliance with safety rules. Whatever difficulties arise because ofepisodic noncompliance by vessel operators can be and are addressed by policingefforts by the appropriate authorities (i.e., the U.S. Coast Guard) at theport of entry.4 The State is simply wrong in asserting (Br. in Opp. 24)that "allowing States to apply their health and safety laws to oiltankers does not impair a uniform international system, because internationaluniformity is lacking": by longstanding arrangement, the policing ofsuch matters regarding oil tankers occurs at the national and internationallevels. See Pet. 7.
In the PWSA, Congress specifically provided that tank vessels carrying oilare permitted to operate in the United States waters "only if the vesselhas been issued a certificate of compliance by the Secretary." 46 U.S.C.3711(a). Congress did not confer on states the authority to oust the federalenforcement regime through the promulgation of different rules or the applicationof different enforcement standards to state rules that are identical orsimilar to federal regulations. It is the responsibility of Congress andthe Executive Branch, and not individual states, to address whatever problemsmay exist regarding foreign flag compliance with national and internationalrules. The fact that Congress has chosen to depart in certain narrowly targetedrespects from an internationally uniform set of rules does not mean thatthe states may balkanize the rules that govern interstate and internationalshipping in the United States.
* * * * *
For the foregoing reasons and those stated in the petition, it is respectfullysubmitted that the petition for a writ of certiorari should be granted.

SETH P. WAXMAN
Solicitor General

JULY 1999


1 Remarkably, NRDC contends (Br. in Opp. 19) that a Ninth Circuit decision,Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483 (1984), cert. denied, 471U.S. 1140 (1985), "explicitly limited the holding of Ray to 'designcharacteristics,' and acknowledged the obligation of tankers to meet otherwisevalid state regulations that do not constitute design or construction obligations."The Ninth Circuit, of course, would have had no authority to "explicitlylimit" the holding of this Court in the manner NRDC suggests, and infact it did not do so. It observed only that the field preemption analysisin Ray was limited to design and construction, which were governed by TitleII of the PWSA while specifically noting that Ray also held that certainother state rules were preempted under Title I. See id. at 487 & n.5.Accord Beveridge v. Lewis, 939 F.2d 859, 861-863 (9th Cir. 1991) (citedat State Br. in Opp. 16)).

2 The legislative history of OPA quoted by the State (Br. in Opp. 20-22)similarly shows only that Congress did not intend for OPA to preempt statelaw in certain respects. And contrary to NRDC's contention (Br. in Opp.23-24), the statements of Coast Guard officials it quotes in no way suggestthat OPA freed States to adopt rules that conflict with Coast Guard regulations.
3 The First Circuit in NFTC also rejected the proposition, relied upon bythe Ninth Circuit in this case, that "the fact that state and federallegislation share common goals, either in whole or in part, is * * * sufficientto preclude a finding of preemption," concluding that "[t]he crucialinquiry is whether a state law impedes the federal effort." 1999 WL398414, at *35.

4 The State misunderstands the Coast Guard's responsibilities, which includeinspecting foreign flag vessels that enter United States ports for compliancewith national and international rules and, if necessary, detaining vesselsthat do not comply. Thus, the responsibility for enforcement does not fallsolely on the flag nation, but also includes an important role for port-nationcontrol inspections when foreign flag vessels enter another country's port.See Procedures for Port State Control, International Maritime OrganizationAssembly Res. A.787(19) ¶¶ 1.1, 1.3.2, 1.3.3, 2.1, 2.2, 2.6 (Nov.23, 1995).