DISPLACEMENT (not equal to) PREEMPTION: THE OPA 90 DAMAGES CONUNDRUM.

• Author: Whitehead, Eric M.

1. Introduction 330 II. A Brief History of OPA 90 330 III. Preemption vs. Displacement: Analytical Clarification 332 IV. Pre-OPA 90 State Claims Availability 334 A. Claim Survivability Under the WQIA and CWA 335 i. Water Quality Improvement Act of 1970 335 ii. Clean Water Act 338 V. Scope of State Claims Preemption Post-OPA 90 340 A. Following OPA 90, What State Law Claims Survive Preemption for the Discharge of Oil into State Waters? 343 VI. Paths to Resolution 345 A. Plain Reading of [section]2718 in pari materia with [section]2702 345 i. Scope of damages enumerated in [section]2702(b) 346 B. Evaluate Jurisprudence Regarding the Preemption of State Law Claims 347 C. Evaluate Jurisprudence Regarding the Displacement of Maritime Law 352 VII. The Scope of Displacement of Maritime Law Under OPA is Not Equal to the Preemption of State Law 356 VIII. Conclusion 358 I. INTRODUCTION

   When President George H.W. Bush signed the Oil Pollution Act of 1990 ("OPA") (2) into law, it implanted itself as the "zenith" of modern American oil pollution legislation. Prior to its enactment, no federal legislative act had so broadly and comprehensively encompassed the targeted area of oil pollution. However, OPA arrived amongst a disarray of federal legislation, each act forming a porous patchwork of oil pollution liability, remedies, and compensation coverage with little uniformity. (3) Despite its comprehensive aims, OPA contemplates and, in Title I of the Act, expressly provides for the preservation of at least some state law and federal maritime claims. (4)

   With the purported savings of such claims under these provisions come questions of the applicable scope along with the Act's potential displacement of federal general maritime law and preemption of state law claims. Invocation of these multiple legal bodies more conspicuously arises from incidents indicative of large oil spills publicly characterized by (and for good reason) the likes of the EXXON VALDEZ and DEEPWATER HORIZON disasters. Due to the sweeping scale and publicity of these incidents, a potentially overlooked conflict is that of OPA's possible preemption of state law claims for oil spills occurring in state territorial waters. This article seeks to discover the scope of OPA's preemptive effect on state law claims, its relation to the displacement of general maritime law, and courts' conflation of terminology regarding "preemption" and "displacement" under OPA.

2. A BRIEF HISTORY OF OPA 90

   In 1989, a spill of an estimated 11 million gallons of crude oil into the Prince William Sound, Alaska, by the EXXON VALDEZ was at that time the largest oil spill in U.S. history. (5) The magnitude of the environmental catastrophe was "exacerbated greatly by an unreasonably slow, confused and inadequate response by industry and government that failed miserably in containing the spill and preventing damage." (6) The EXXON VALDEZ spill, coupled with others occurring within months in "coastal waters of Rhode Island, the Delaware River and the Houston Ship Channel," (7) demonstrated to Congress that "oil pollution from accidental tanker spills is a real, continuing threat to the public health and welfare and the environment." (8) In proposing OPA, Congress sought to remedy the failings of a "fragmented collection of Federal and State laws" addressing oil pollution cleanup and liability by enacting comprehensive legislation that provides, inter alia, quick, efficient cleanup and adequate compensation to parties damaged by oil pollution. (9)

   Since enactment, OPA has become the exclusive federal remedy for damage due to oil pollution. (10) The Act specifically targets discharge of oil or the substantial threat of oil discharge from a vessel or facility into the navigable waters of the U.S. or adjoining shorelines or exclusive economic zone. (11) Furthermore, OPA creates a comprehensive strict, no-fault liability scheme to remedy the efficiency and uniformity concerns addressed by Congress in the Act's proposal stage that plagued the federal and state legislative landscape prior to its enactment. (12) To achieve its legislative and practical aims, the Act imposes strict liability for removal costs and damages upon a designated responsible party, the owner or operator of the vessel or facility from which the oil was discharged. (13) Despite the fragmented legislative landscape prior to OPA, its theoretical basis for liability, cleanup, and compensation coverage are hardly original. It is through preceding acts such as the Water Quality Improvement Act, Trans-Alaska Pipeline Act, and Clean Water Act, along with some previous iteration of those acts surviving its enactment, that OPA derives many of its fundamental concepts of oil pollution coverage. (14)

3. PREEMPTION VS. DISPLACEMENT: ANALYTICAL

   CLARIFICATION

   For the purposes of this article and the analysis conducted here, it is important to distinguish the terms "displacement" and "preemption," as courts often confusingly employ the terms interchangeably. (15) As Judge Higginson of the U.S. Fifth Circuit expressed in Footnote 1 of his opinion in U.S. v. American Commercial Lines, L.L.C., "Preemption refers to whether federal statutory law supersedes state law, while "displacement" applies when... a federal statute governs a question previously governed by federal common law." (16) The crux of Judge Higginson's reasoning is that "we assume that 'the historic police powers of the States were not to be superseded by [federal law] unless that was the clear and manifest purpose of Congress."' (17)

   Accordingly, a displacement analysis "assumes that 'it is for Congress, not the federal courts, to articulate the appropriate standards to be applied as a matter of federal law.'" (18) Based on this distinction, the primary issue addressed in this article is the "vertical" preemption of state law by the federal OPA, a concern born from the principles of federalism, not the "horizontal" jostling of federal legislation and prior existing common law. These concepts are neither new nor exclusive to OPA as the issues of displacement and preemption burdened courts concerning the applicability and scope of the pollution acts prior to 1990.

   Equally important in analyzing preemption and displacement under OPA is the understanding of the respective nature and effects of the two concepts. As Judge Higginson indicated, preemption occurs as a result of a federalism concern. Generally, preemption is derived from the Supremacy Clause in Article VI of the U.S. Constitution. (19) The Clause provides a "rule of decision" which "specifies that federal law is supreme in a case of a conflict with state law." (20) Where a state law is directly inconsistent with a federal law, the federal law supersedes state law in accordance with the Supremacy Clause (conflict preemption). (21) Preemption may also take place when "federal law occupies a 'field' of regulation 'so comprehensively that it has left no room for supplementary state legislation"' (field preemption). (22) Furthermore, where there is proper admiralty jurisdiction, federal maritime law generally applies and may therefore preempt state statutory and even common law. (23)

   Given the comprehensive nature of OPA regarding oil pollution, state laws governing oil spills may, at first glance, appear to be "field" preempted. However, neither the text (24) of OPA nor Congressional intent (25) reflects any semblance of the notion that a state's authority to legislate on the matter of oil pollution should be entirely preempted. Accordingly, the "type" of preemption under OPA contemplates a scenario where a state law is in direct contravention of the Act's express provisions (conflict preemption). Therefore, by nature of the Supremacy Clause, a state law that is directly inconsistent with a provision of OPA is superseded by the latter, federal statute. The extent to which this preemptive power applies is a principle subject of this article.

   In contrast, the concept of displacement is founded on both a different principle and a distinct regime of law entirely. As Thomas C. Galligan and Brittan J. Bush state in their article, Displacement and Preemption: The Opa's Effect on General Maritime Law and State Tort Law Punitive Damages Claims:

   The term displacement is used to distinguish preemption of state law and is used when considering the impact of a congressional statute on a separate federal claim. We use preemption when the issue is the effect of federal law on state law. At its most basic, the displacement issue is a question of statutory interpretation; here, it is a matter of discerning the meaning of Congress's words and its purpose in enacting the OPA. (26)

   Contrary to the concerns of federalism with the issue of preemption, displacement involves the supplanting of preexisting federal common law, such as maritime law, by a federal statute. Though courts conflate the concepts of preemption and displacement, "the Supreme Court has emphasized that 'the appropriate analysis ... is not the same."' (27) Because the concept of displacement only involves "an assessment of the scope of the legislation and whether the scheme established by Congress addresses the problem formerly governed by federal common law," analysis of the doctrine is more direct compared to the numerous federalism concerns involving preemption. (28)

   The term "displacement" itself is an apt term in the maritime context as its application as to a vessel's "weight" is a useful analogy to describe the effect of a federal statute on preexisting federal maritime law. First, measuring the volume of water displaced by its hull and then converting this metric into weight using the given volume of water as a mathematical constant determine a vessel's weight. The existing water displaced by the entry of the hull of the ship into its volumetric space is not entirely eliminated (thanks to the law of conservation of mass), but rather moved and its preexisting...