Constitutional Preemption of State Laws Against Massive Oil Spills

• Publication year: 1977

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 1, No.1FALL 1977

Constitutional Preemption Of State Laws Against Massive Oil Spills

Arval A. Morris(fn*)

Introduction

The awesome reality of an impending and severe energy crisis is closing in fast on the United States-so much so, that on his 91st day in office, President Jimmy Carter unveiled a controversial energy conversion and conservation program, the most comprehensive energy program any President has ever proposed. At the heart of America's energy dilemma is oil:(fn1) America's growing dependence on oil and the rapid depletion of world oil reserves.(fn2) Although the United States was self-sufficient in oil in 1950, by 1970 it had become a net oil importer. By 1976, the United States imported about 7.3 million barrels of oil each day (bpd) or 42 percent of its daily consumption requirements of 17.4 million bpd. Alaskan oil became available late in 1977, and, ultimately, it is expected to add 2 million bpd to the domestic supply. This amount, however, merely will replace the decline in domestic oil production of the lower 48 states between 1970 and 1977. During the winter months of 1977, for the first time in American history, oil imports reached 50 percent of oil consumption.

These importation figures show oil is more than an increasingly scarce, but vital, fuel. They show oil also to be an important instrument in world power politics,(fn3) a target for world strategies, and a possible source of national and global economic crisis. Furthermore, for purposes of this article, oil is also a threatening pollutant that can severely impair the quality of life in countless ways by altering natural balances and by destroying or contaminating usable waters, water life, and shorelines whenever it spills.(fn4) Oil spills, the Supreme Court has declared, are "an insidious form of pollution of vast concern to every coastal city or port and to all the estuaries on which life of the ocean and the lives of the coastal people are greatly dependent."(fn5)

In light of this declaration, the purposes of this article are to assess the validity of the federal court's decision(fn6) preempting Washington's Tanker Pollution Law,(fn7) and to comment generally on whether, consistent with the evolved preemption doctrine, coastal states can protect themselves from deleterious oil spills by enacting preventive rather than deterrent measures.

The Problem

The Puget Sound estuary(fn8) in the State of Washington is the most productive inland waterway in the continental United States, having more than 2,000 species of life located on or in its waters.(fn9) The federal government operates thirteen wildlife preserves on its shores comprising some 2,300 acres, and the State of Washington operates numerous fish hatcheries and two oyster preserves which comprise 12,000 acres. More than 60 percent of the people of the State of Washington reside within twelve counties bordering on Puget Sound. Since 1956, more than 300 million dollars have been spent by private persons and by local, state, and federal governments to preserve and enhance its water quality.

Washington and its citizens have a substantial economic interest in the natural resources of Puget Sound. The value of the beds, tidelands and waterfront lands adjacent to Puget Sound are estimated to exceed $2,000,000,000. . . . The state has a substantial proprietary interest in these lands, owning nearly all of the beds and approximately 43% of the tideland frontage . . . . The Puget Sound fisheries industry, including commercial and sport fishing, packing and canning, contributes $170,000,000 annually to Washington's economy . . . Puget Sound also supports aquaculture programs, including commercial clam and oyster farming and salmon rearing.(fn10)

Puget Sound has many bays and inlets; its bottom is marked by channels; it has strong currents running up and down its many channels and straits; its shoreline is irregular, and it is subject to a variety of weather conditions including fog, strong winds, and heavy rains. Because of these facts, during the Senate's 1971 Commerce Committee hearings on the Ports and Waterways Safety Act of 1972,(fn11) Puget Sound was identified as an area of significant danger and one likely to cause groundings of vessels, including oil tankers. For example, oil tankers supplying the oil refineries at Cherry Point, Femdale, and Anacortes do so by passing through the treacherous waters of Rosario Strait which extend for eighteen miles and are three-fourths to one mile wide at their narrowest points.

The oil industry in the State of Washington is a multimillion dollar-a-day business. There are five important refineries in Washington State: ARCO at Cherry Point, Mobil at Ferndale, Shell and Texaco at Anacortes, and U.S. Oil and Refining Company at Tacoma. These plants process about 350,000 barrels of crude oil daily (one barrel equals 42 U.S. gallons).(fn12) According to a January 1973 report, each passing day sees the waters, sea life, and coastlines of Washington being polluted by oil spills and uncontrolled waste oil disposal.(fn13) The primary reason is that the oil industry is steadily expanding in Washington. "Puget Sound is rapidly becoming the oil refining center of the Pacific Northwest," and "the days of producing petroleum products in the Northwest for the Washington market only are rapidly fading into the past."(fn14) Completion of the Aleyeska Pipeline will mean additional refineries, further increases in production, and unless strong corrective measures are taken, an increase in the number and volume of oil spills.(fn15) Furthermore, without reflecting any of the impact Puget Sound will soon experience when Alaskan oil starts to flow:Department of Ecology records show two oil spills per day occur in Washington State; each week oil spills occur that require localized cleanup and four oil spills per year occur that require extensive cleanup. Department records also show that 933 oil spills occurred in Washington State during the period extending from January 1, 1970 through June 30, 1972. The activity that caused 490 of these 933 oil spills was known while the cause of the remaining 443 oil spills was unknown. Of the 490 known-cause oil spills 82 percent (404) were caused by poor housekeeping practices, deliberate dumping, equipment failure or human error . . . .(fn16)

The problems generated by oil spills from oil tankers in distress in Puget Sound waters are expected to intensify dramatically.(fn17) Prior to the Arab oil embargo of 1973, ninety percent of the crude oil needs of Washington's four major refineries had been supplied by pipeline from Canada. But the Arab oil embargo induced Canada to adopt a policy of stopping the exportation of her crude oil by 1980 with the result that Washington's refineries are now, or soon will be, supplied with more than 350,000 barrels of oil per day regularly transported through Puget Sound by oil tankers. Alaskan oil currently intended for Puget Sound refineries, Canada's change in oil export policy, and inland transhipments of Alaskan oil through Puget Sound will cause oil tanker traffic on Puget Sound to increase radically.(fn18) And, perhaps more threateningly, the oil may be transported over Puget Sound waters in supertankers, thereby drastically increasing total supertanker traffic in Puget Sound and the probability of a massive oil spill with its potentially severe damage. Moreover, the trend in oil tanker construction, especially during the past fifteen years since the closure of the Suez canal in 1967, has been toward larger size and deeper draft vessels.(fn19) By "January, 1971, more than one-fourth of the world tanker fleet consisted of ships of 175,000 deadweight tons (dwt) and over," and today, "shipbuilders and designers are considering 1,000,000 dwt tankers."(fn20)

Puget Sound has never suffered a massive oil spill but the probability of such an occurrence will increase significantly when Alaskan oil, carried by supertankers, begins to reach Washington's waters. One massive oil spill in the wrong place during an incoming tide could destroy much, perhaps most, of Washington's shell and sea food industry and gravely impair the entire ecosystem of Puget Sound on which fish, oysters, crabs, shrimp, and other marine life depend.(fn21)

The state has recognized the gravity of this situation. A 1975 study done by the Oceanographic Commission of Washington produced the dire warning that the state can expect at least nineteen oil tanker wrecks in Washington waters during the next twenty-one years.(fn22) This projected future is obviously bleak and undesirable. It demands the state's full attention.(fn23) This study, however, is laced with "ifs." If, for example, radical changes are made in oil tankers or in laws governing the ways tankers supply oil to Washington's refineries, the study indicates the projected number of oil tanker wrecks on Puget Sound can be significantly reduced. Thus, the bleak and undesirable future projected by the report need not occur. The actual future is subject to human control, and it is the massive oil spill that must be prevented.(fn24)

The State's Response

The most useful approach to the problem of significantly reducing massive oil spillage and pollution caused by oil tankers in distress is to concentrate on the vessels themselves and on the prevention of oil spills. But curiously, reliance has been most widely placed...