Appellees challenge the constitutionality of the Washington
Tanker Law, which regulates the design, size, and movement of oil
tankers in Puget Sound, both enrolled (those engaged in domestic or
coastwise trade) and registered (those engaged in foreign trade).
Three operative provisions are involved: (1) a requirement (§
88.16.180) that both enrolled and registered oil tankers of at
least 50,000 deadweight tons (DWT) carry a Washington-licensed
pilot while navigating the Sound; (2) a requirement (§
88.16.190(2)) that enrolled and registered oil tankers of from
40,000 to 125,000 DWT satisfy certain design or safety standards,
or else use tug escorts while operating in the Sound; and (3) a ban
on the operation in the Sound of any tanker exceeding 125,000 DWT
(§ 88.16.190(1)). A three-judge District Court adjudged the statute
void in its entirety, upholding appellees' contentions that all the
Tanker Law's operative provisions were preempted by federal law
particularly the Ports and Waterways Safety Act of 1972 (PWSA),
which is designed to insure vessel safety and the protection of
navigable waters and adjacent shore areas from tanker oil spillage.
Title I of the PWSA empowers the Secretary of Transportation to
establish, operate, and require compliance with "vessel traffic
services and systems" for ports subject to congested traffic and to
control vessel traffic in especially hazardous areas by, among
other things, establishing vessel size limitations. Pursuant to
this Title, the Secretary, through his delegate, has promulgated
the Puget Sound Vessel Traffic System, which contains general and
communication rules, vessel movement reporting requirements, a
traffic separation scheme, special ship movement rules applying to
Rosario Strait (where, under a local Coast Guard rule, the passage
of more than one 70,000 DWT vessel -- in bad weather, 40,000 DWT --
in either direction at a given time is prohibited), and other
requirements. A State, though permitted to impose higher equipment
or safety standards, may do so "for structures only." Title II,
whose goals are to provide vessel safety and protect the marine
environment, provides that the Secretary shall issue such rules and
regulations as may be necessary with respect to the design,
construction, and operation of oil tankers; provides for inspection
of vessels for
Page 435 U. S. 152
compliance with the Secretary's safety and environmental
regulations; and prohibits the carrying of specified cargoes absent
issuance of a certificate of inspection evidencing compliance with
the regulations. Title 46 U.S.C. § 364 provides that every
coastwise seagoing steam vessel subject to federal navigation laws
not sailing under register shall, when under way, be under the
control and direction of pilots licensed by the Coast Guard. Title
46 U.S.C. § 215 adds that no state government shall impose upon
steam vessel pilots any obligation to procure a state license in
addition to the federal license, though it is specified that the
provision does not affect state requirements for carrying pilots on
other than coastwise vessels.
Held:
1. To the extent that § 88.16.180 requires enrolled tankers to
carry state-licensed pilots, the State is precluded by 46 U.S.C. §§
215, 364 from imposing its own pilotage requirements and to that
extent the state law is invalid. The District Court's judgment was
overly broad, however, in invalidating the pilot provision in its
entirety, since under both 46 U.S.C. § 215 and the PWSA States are
free to impose pilotage requirements on registered vessels entering
and leaving their ports. Pp
435 U. S.
158-160.
2. Congress in Title II intended uniform national standards for
design and construction of tankers that would foreclose the
imposition of different or more stringent state requirements, and
since the federal scheme aims at precisely the same ends as §
88.16.190(2) of the Tanker Law, the different and higher design
requirements of that provision, standing alone, are invalid under
the Supremacy Clause.
Huron Portland Cement Co. v.
Detroit, 362 U. S. 440;
Kelly v. Washington, 302 U. S. 1,
distinguished. Pp.
435 U. S.
160-168.
3. The District Court erred in holding that the alternative tug
requirement of § 88.16.190(2) was invalid as conflicting with the
PWSA, for the Secretary has not as yet promulgated his own tug
requirement for Puget Sound tanker navigation or decided that there
should be no such requirement. Unless and until he issues such
rules, the State's tug escort requirement is not preempted by the
federal scheme. Pp.
435 U. S.
168-173.
4. The exclusion from Puget Sound of any tanker exceeding
125,000 DWT pursuant to § 88.16.190(1) is invalid under the
Supremacy Clause in light of Title I and the Secretary's actions
thereunder, a conclusion confirmed by the legislative history of
Title I, which shows that Congress intended that there be a single
federal decisionmaker to promulgate limitations on tanker size. Pp.
435 U. S.
173-178.
5. The tug escort requirement does not violate the Commerce
Clause. This requirement, like a local pilotage requirement, is not
the type of regulation demanding a uniform national rule,
See Cooley v. Board
of
Page 435 U. S. 153
Wardens, 12 How. 299, nor does it impede the free flow
of interstate and foreign commerce, the tug escort charges not
being large enough to interfere with the production of oil. Pp.
435 U. S.
179-180.
6. Nor does the tug escort provision, which does not interfere
with the Government's attempt to achieve international agreement on
the regulation of tanker design, interfere with the Government's
authority to conduct foreign affairs. P.
435 U. S.
180.
___ F.Supp. ___ affirmed in part, reversed in part, and
remanded.
WHITE, J., delivered the opinion of the Court, in which BURGER,
C.J., and STEWART and BLACKMUN, JJ., joined; in all but Parts V and
VII of which POWELL and STEVENS, JJ., joined; and in all but Parts
IV and VI of which BRENNAN, MARSHALL, and REHNQUIST, JJ., joined.
MARSHALL, J., filed an opinion concurring in part and dissenting in
part, in which BRENNAN and REHNQUIST, JJ., joined,
post,
p.
435 U. S. 180.
STEVENS, J., filed an opinion concurring and dissenting in part, in
which POWELL, J., joined,
post, p.
435 U. S.
187.
Page 435 U. S. 154
MR. JUSTICE WHITE delivered the opinion of the Court.
Pursuant to the Ports and Waterways Safety Act of 1972 (PWSA),
86 Stat. 424, 33 U.S.C. § 1221
et seq. (1970 ed., Supp.
V), and 46 U.S.C. § 391a (1970 ed., Supp. V), navigation in Puget
Sound, a body of inland water lying along the northwest coast of
the State of Washington, [
Footnote
1] is controlled in major respects by federal law. The PWSA
also subjects to federal rule the design and operating
characteristics of oil tankers.
This case arose when ch. 125, 1975 Wash. Laws, 1st Extr.
Page 435 U. S. 155
Sess., Wash.Rev.Code § 88.16.170
et seq. (Supp. 1975)
(Tanker Law), was adopted with the aim of regulating in particular
respects the design, size, and movement of oil tankers in Puget
Sound. In response to the constitutional challenge to the law
brought by the appellees herein, the District Court held that,
under the Supremacy Clause, Art. VI, cl. 2, of the Constitution,
which declares that the federal law "shall be the supreme Law of
the Land," the Tanker Law could not coexist with the PWSA, and was
totally invalid.
Atlantic Richfield Co. v. Evans, No.
C-75-648-M (WD Wash. Sept. 24, 1976).
I
Located adjacent to Puget Sound are six oil refineries having a
total combined processing capacity of 359,500 barrels of oil per
day. In 1971, appellee Atlantic Richfield Co. (ARCO) began
operating an oil refinery at Cherry Point, situated in the northern
part of the Sound. Since then, the crude oil processed at that
refinery has been delivered principally by pipeline from Canada
[
Footnote 2] and by tankers
from the Persian Gulf; tankers will also be used to transport oil
there from the terminus of the Trans-Alaska Pipeline at Valdez,
Alaska. Of the 105 tanker deliveries of crude oil to the Cherry
Point refinery from 1972 through 1975, 95 were by means of tankers
in excess of 40,000 deadweight tons (DWT), [
Footnote 3] and, prior to the effective date of the
Tanker Law, 15 of them were by means of tankers in excess of
125,000 DWT.
Appellee Seatrain Lines, Inc. (Seatrain), owns or charters 12
tanker vessels in domestic and foreign commerce, of which
Page 435 U. S. 156
four exceed 125,000 DWT. Seatrain also operates through a wholly
owned subsidiary corporation a shipbuilding facility in New York
City, where it has recently constructed or is constructing four
tankers, each with a 225,000 DWT capacity.
On the day the Tanker Law became effective, ARCO brought suit in
the United States District Court for the Western District of
Washington, seeking a judgment declaring the statute
unconstitutional and enjoining its enforcement. Seatrain was later
permitted to intervene as a plaintiff. Named as defendants were the
state and local officials responsible for the enforcement of the
Tanker Law. [
Footnote 4] The
complaint alleged that the statute was preempted by federal law, in
particular the PWSA, and that it was thus invalid under the
Supremacy Clause. It was also alleged that the law imposed an undue
burden on interstate commerce in violation of the Commerce Clause,
Art. I, § 8, cl. 3, and that it interfered with the federal
regulation of foreign affairs. Pursuant to 28 U.S.C. §§ 2281, 2284,
a three-judge court was convened to determine the case.
The case was briefed and argued before the District Court on the
basis of a detailed stipulation of facts. Also before the court was
the brief of the United States as
amicus curiae, which
contended that the Tanker Law was preempted in its entirety by the
PWSA and other federal legislation. [
Footnote 5] The three-judge court agreed with the
plaintiffs and the United States, ruling that all of the operative
provisions of the Tanker Law were preempted, and enjoining
appellants and their successors from enforcing the chapter.
[
Footnote 6] We noted probable
jurisdiction of
Page 435 U. S. 157
the State's appeal, 430 U.S. 905 (1977), meanwhile having stayed
the injunction. 429 U.S. 1035 (1977).
II
The Court's prior cases indicate that, when a State's exercise
of its police power is challenged under the Supremacy Clause,
"we start with the assumption that the historic police powers of
the States were not to be superseded by the Federal Act unless that
was the clear and manifest purpose of Congress."
Rice v. Santa Fe Elevator Corp., 331 U.
S. 218,
331 U. S. 230
(1947);
Jones v. Rath Packing Co., 430 U.
S. 519,
430 U. S. 525
(1977). Under the relevant cases, one of the legitimate inquiries
is whether Congress has either explicitly or implicitly declared
that the States are prohibited from regulating the various aspects
of oil tanker operations and design with which the Tanker Law is
concerned. As the Court noted in
Rice, supra at
331 U. S.
230:
"[The congressional] purpose may be evidenced in several ways.
The scheme of federal regulation may be so pervasive as to make
reasonable the inference that Congress left no room for the States
to supplement it.
Pennsylvania R. Co. v. Public Service
Comm'n, 250 U. S. 566,
250 U. S.
569;
Cloverleaf Butter Co. v. Patterson,
315 U. S.
148. Or the Act of Congress may touch a field in which
the federal interest is so dominant that the federal system will be
assumed to preclude enforcement of state laws on the same subject.
Hines v. Davidowitz, 312 U. S. 52. Likewise, the
object sought to be obtained by the federal law and the character
of obligations imposed by it may reveal the same purpose.
Southern R. Co. v.
Railroad
Page 435 U. S. 158
Commission, 236 U. S. 439;
Charleston
& W. C. R. Co. v. Varnville Co., 237 U. S.
597;
New York Central R. Co. v. Winfield,
244 U. S.
147;
Napier v. Atlantic Coast Line R. Co.,
supra."
Accord, City of Burbank v. Lockheed Air Terminal, Inc.,
411 U. S. 624,
411 U. S. 633
(1973).
Even if Congress has not completely foreclosed state legislation
in a particular area, a state statute is void to the extent that it
actually conflicts with a valid federal statute. A conflict will be
found "where compliance with both federal and state regulations is
a physical impossibility . . . ,"
Florida Lime & Avocado
Growers, Inc. v. Paul, 373 U. S. 132,
373 U. S.
142-143 (1963), or where the state "law stands as an
obstacle to the accomplishment and execution of the full purposes
and objectives of Congress."
Hines v. Davidowitz,
312 U. S. 52,
312 U. S. 67
(1941);
Jones v. Rath Packing Co., supra at
430 U. S. 526,
430 U. S.
540-541.
Accord, De Canas v. Bica, 424 U.
S. 351,
424 U. S. 363
(1976).
III
With these principles in mind, we turn to an examination of each
of the three operative provisions of the Tanker Law. We address
first Wash.Rev.Code § 88.16.180 (Supp. 1975), which requires both
enrolled and registered [
Footnote
7] oil tankers of at least 50,000 DWT to take on a pilot
licensed by the State of Washington while navigating Puget Sound.
The District Court held that, insofar as the law required a tanker
"enrolled in the coastwise trade" to have a local pilot on board,
it was in direct conflict with 46 U.S.C. §§ 215, 364. We agree.
Section 364 provides that
"every coastwise seagoing steam vessel subject to the navigation
laws of the United States, . . . not sailing under register, shall,
when under way, . . . be under
Page 435 U. S. 159
the control and direction of pilots licensed by the Coast Guard.
[
Footnote 8]"
Section 215 adds that
"[n]o State or municipal government shall impose upon pilots of
steam vessels any obligation to procure a State or other license in
addition to that issued by the United States . . ."
It goes on to explain that the statute shall not be construed
to
"affect any regulation established by the laws of any State,
requiring vessels entering or leaving a port in any such State,
other than coastwise steam vessels, to take a pilot duly
licensed or authorized by the laws of such State. . . ."
(Emphasis added.) The Court has long held that these two
statutes, read together, give the Federal Government exclusive
authority to regulate pilots on enrolled vessels, and that they
preclude a State from imposing its own pilotage requirements upon
them.
See Anderson v. Pacific Coast S.S. Co., 225 U.
S. 187 (1912);
Spraigue v. Thompson,
118 U. S. 90
(1886). Thus, to the extent that the Tanker Law requires enrolled
tankers to take on state-licensed pilots, the District Court
correctly concluded, as the State now concedes, that it was in
conflict with federal law, and was therefore invalid.
While the opinion of the court below indicated that the pilot
provision of the Tanker Law was void only to the extent that it
applied to tankers enrolled in the coastwise trade, the judgment
itself declared the statute null and void in its entirety. No part
of the statute was excepted from the scope of the injunctive
relief. The judgment was overly broad, for just as it is clear that
States may not regulate the pilots of enrolled vessels, it is
equally clear that they are free to impose pilotage requirements on
registered vessels entering and leaving their
Page 435 U. S. 160
ports. Not only does 46 U.S.C. § 215 so provide, as was noted
above, but so also does § 101(5) of the PWSA, 33 U.S.C. § 1221(5)
(1970 ed., Supp. V), which authorizes the Secretary of
Transportation to
"require pilots on self-propelled vessels engaged in the foreign
trades in areas and under circumstances where a pilot is not
otherwise required by State law to be on board until the State
having jurisdiction of an area involved establishes a requirement
for a pilot in that area or under the circumstances involved. . .
."
Accordingly, as appellees now agree, the State was free to
require registered tankers in excess of 50,000 DWT to take on a
state-licensed pilot upon entering Puget Sound.
IV
We next deal with § 88.16.190(2) of the Tanker Law, which
requires enrolled and registered oil tankers of from 40,000 to
125,000 DWT to possess all of the following "standard safety
features":
"(a) Shaft horsepower in the ratio of one horsepower to each two
and one-half deadweight tons; and"
"(b) Twin screws; and"
"(c) Double bottoms, underneath all oil and liquid cargo
compartments; and"
"(d) Two radars in working order and operating, one of which
must be collision avoidance radar; and"
"(e) Such other navigational position location systems as may be
prescribed from time to time by the board of pilotage
commissioners. . . ."
This section contains a proviso, however, stating that, if
the
"tanker is in ballast or is under escort of a tug or tugs with
an aggregate shaft horsepower equivalent to five percent of the
deadweight tons of that tanker . . . ,"
the design requirements are not applicable. The District Court
held invalid this alternative design/tug requirement of the Tanker
Law. We agree insofar as we hold that the foregoing design
requirements,
Page 435 U. S. 161
standing alone, are invalid in the light of the PWSA and its
regulatory implementation.
The PWSA contains two Titles representing somewhat overlapping
provisions designed to insure vessel safety and the protection of
the navigable waters, their resources, and shore areas from tanker
cargo spillage. The focus of Title I, 33 U.S.C. §§ 1221-1227 (1970
ed., Supp. V), is traffic control at local ports; Title II's
principal concern is tanker design and construction. [
Footnote 9] For present purposes, the
relevant part is Title II, 46 U.S.C. § 391a (1970 ed., Supp. V),
which amended the Tank Vessel Act of 1936, Rev.Stat. § 4417a, as
added, 49 Stat. 1889.
Title II begins by declaring that the protection of life,
property, and the marine environment from harm requires the
promulgation of "comprehensive minimum standards of design,
construction, alteration, repair, maintenance, and operation" for
vessels carrying certain cargoes in bulk, primarily oil and fuel
tankers. § 391a(1). To implement the twin goals of providing for
vessel safety and protecting the marine environment, it is provided
that the Secretary of the Department in which the Coast Guard is
located [
Footnote 10] "shall
establish" such rules and regulations as may be necessary with
respect to the design, construction, and operation of the covered
vessels and with respect to a variety of related matters. §
391a(3). In issuing regulations, the Secretary is to consider the
kinds and grades of cargo permitted to be on board such vessels, to
consult with other federal agencies, and to identify separately the
regulations established for vessel safety and those to protect
marine environment.
Ibid.
Page 435 U. S. 162
Section 391a(5) provides for inspection of vessels for
compliance with the Secretary's safety regulations. [
Footnote 11] No vessel subject to Title II
may have on board an of the specified cargoes until a certificate
of inspection has been issued to the vessel and a permit endorsed
thereon
"indicating that such vessel is in compliance with the
provisions of this section and the rules and regulations for vessel
safety established hereunder, and showing the kinds and grades of
such cargo that such vessel may have on board or transport."
It is provided that in lieu of inspection under this section the
Secretary is to accept from vessels of foreign nations valid
certificates of inspection "recognized under law or treaty by the
United States."
Title II also directs the Secretary to inspect tank vessels for
compliance with the regulations which he is required to issue for
the protection of the marine environment. § 391a(6). [
Footnote 12] Compliance with these
separate regulations, which must
Page 435 U. S. 163
satisfy specified standards, [
Footnote 13] and the consequent privilege of having on
board the relevant cargo are evidenced by certificates of
compliance issued by the Secretary or by appropriate endorsements
on the vessels' certificates of inspection. Certificates are valid
for the period specified by the Secretary ad are subject to
revocation when it is found that the vessel does not comply with
the conditions upon which the certificate was issued. [
Footnote 14] In lieu of a
certificate of compliance with his own environmental regulations
relating to vessel design, construction, alteration, and repair,
the Secretary may, but need not, accept valid certificates from
foreign vessels evidencing compliance with rules and regulations
issued under a treaty, convention, or agreement providing for
reciprocity of recognition of certificates or similar documents. §
391a(7)(D).
This statutory pattern shows that Congress, insofar as design
characteristics are concerned, has entrusted to the Secretary the
duty of determining which oil tankers are sufficiently safe to be
allowed to proceed in the navigable waters of the United States.
This indicates to us that Congress intended uniform national
standards for design and construction of tankers that would
foreclose the imposition of different or more stringent state
requirements. In particular, as we
Page 435 U. S. 164
see it, Congress did not anticipate that a vessel found to be in
compliance with the Secretary's design and construction regulations
and holding a Secretary's permit, or its equivalent, to carry the
relevant cargo would nevertheless be barred by state law from
operating in the navigable waters of the United States on the
ground that its design characteristics constitute an undue
hazard.
We do not question in the slightest the prior cases holding that
enrolled and registered vessels must conform to "reasonable,
nondiscriminatory conservation and environmental protection
measures . . . " imposed by a State.
Douglas v. Seacoast
Products, Inc., 431 U. S. 265,
431 U. S. 277
(1977), citing
Smith v.
Maryland, 18 How. 71 (1855);
Manchester v.
Massachusetts, 139 U. S. 240
(1891); and
Huron Portland Cement Co. v. Detroit,
362 U. S. 440
(1960). Similarly, the mere fact that a vessel has been inspected
and found to comply with the Secretary's vessel safety regulations
does not prevent a State or city from enforcing local laws having
other purposes, such as a local smoke abatement law.
Ibid.
But in none of the relevant cases sustaining the application of
state laws to federally licensed or inspected vessels did the
federal licensing or inspection procedure implement a substantive
rule of federal law addressed to the object also sought to be
achieved by the challenged state regulation.
Huron Portland
Cement Co. v. Detroit, for example, made it plain that there
was "no overlap between the scope of the federal ship inspection
laws and that of the municipal ordinance . . . " there involved.
Id. at
362 U. S. 446.
The purpose of the "federal inspection statutes [was] to insure the
seagoing safety of vessels . . . to affor[d] protection from the
perils of maritime navigation," while,
"[b]y contrast, the sole aim of the Detroit ordinance [was] the
elimination of air pollution to protect the health and enhance the
cleanliness of the local community."
Id. at
362 U. S.
445.
Kelly v. Washington, 302 U. S. 1 (1937),
involved a similar situation. There, the Court concluded that the
Federal Motor
Page 435 U. S. 165
Boat Act, although applicable to the vessels in question, was of
limited scope and did not include provision for "the inspection of
the hull and machinery of respondents motor-driven tugs in order to
insure safety or determine seaworthiness . . . ," as long as the
tugs did not carry passengers, freight, or inflammable liquid
cargo.
Id. at
302 U. S. 8. It
followed that state inspection to insure safety was not in conflict
with federal law, the Court also holding that the limited federal
regulations did not imply an intent to exclude state regulation of
those matters not touched by the federal statute.
Here, we have the very situation that
Huron Portland Cement
Co. v. Detroit and
Kelly v. Washington put aside.
Title II aims at insuring vessel safety and protecting the marine
environment, and the Secretary must issue all design and
construction regulations that he deems necessary for these ends,
after considering the specified statutory standards. The federal
scheme thus aims precisely at the same ends as does § 88.16.190(2)
of the Tanker Law. Furthermore, under the PWSA, after considering
the statutory standards and issuing all design requirements that in
his judgment are necessary, the Secretary inspects and certifies
each vessel as sufficiently safe to protect the marine environment
and issues a permit or its equivalent to carry tank vessel cargoes.
Refusing to accept the federal judgment, however, the State now
seeks to exclude from Puget Sound vessels certified by the
Secretary as having acceptable design characteristics unless they
satisfy the different and higher design requirements imposed by
state law. The Supremacy Clause dictates that the federal judgment
that a vessel is safe to navigate United States waters prevail over
the contrary state judgment.
Enforcement of the state requirements would at least frustrate
what seems to us to be the evident congressional intention to
establish a uniform federal regime controlling the design of oil
tankers. The original Tank Vessel Act, amended
Page 435 U. S. 166
by Title II, sought to effect a "reasonable and uniform set of
rules and regulations concerning ship construction . . . ,"
H.R.Rep. No. 2962, 74th Cong., 2d Sess., 2 (196); and far from
evincing a different purpose, the Title II amendments strongly
indicate that, insofar as tanker design is concerned, Congress
anticipated the enforcement of federal standards that would preempt
state efforts to mandate different or higher design requirements.
[
Footnote 15]
That the Nation was to speak with one voice with respect to
tanker design standards is supported by the legislative history of
Title II, particularly as it reveals a decided congressional
preference for arriving at international standards for building
tank vessels. The Senate Report recognizes that vessel design "has
traditionally been an area for international, rather than national,
action," and that "international solutions in this area are
preferable, since the problem of marine pollution is world-wide."
[
Footnote 16] Senate Report
23. Congress did provide that the Secretary's safety regulations
would not
Page 435 U. S. 167
apply to foreign ships holding compliance certificates under
regulations arrived at by international agreement; but, in the end,
the environmental protection regulation were made applicable to
foreign, as well as to American, vessels, since it was thought to
be necessary for the achievement of the Act's purposes. [
Footnote 17]
Although not acceding to the request of those who thought that
foreign vessels should be completely exempt from regulation under
Title II, [
Footnote 18]
Congress did not abandon the effort to achieve international
agreement on what the proper design standards should be. It wrote
into Title II a deferral procedure, requiring the Secretary at the
outset to transmit his proposed environmental protection rules and
regulations with respect to vessel design to the appropriate
international forums for consideration as international standards.
§ 391a(7)(b). In order to facilitate the international
consideration of these design requirements, Title II specified that
the rules and regulations governing foreign vessels and United
States vessels engaged in foreign trade could not become effective
before January 1, 1974, unless they were consonant with an
international agreement. § 391a(7)(C). As noted by the Senate
Report, this requirement demonstrated the "committee's strong
intention that standards for the protection of the marine
environment be adopted, multilaterally if possible, but adopted in
any event." Senate Report 28.
Congress expressed a preference for international action and
Page 435 U. S. 168
expressly anticipated that foreign vessels would or could be
considered sufficiently safe for certification by the Secretary if
they satisfied the requirements arrived at by treaty or convention;
it is therefore clear that Title II leaves no room for the States
to impose different or stricter design requirements than those
which Congress has enacted with the hope of having them
internationally adopted, or has accepted as the result of
international accord. A state law in this area, such as the first
part of § 88.16.190(2), would frustrate the congressional desire of
achieving uniform international standards, and is thus at odds with
"the object sought to be obtained by [Title II] and the character
of obligations imposed by it. . . ."
Rice v. Santa Fe Elevator
Corp., 331 U.S. at
331 U. S. 230.
In this respect, the District Court was quite correct. [
Footnote 19]
V
Of course, that a tanker is certified under federal law as a
safe vessel insofar as its design and construction characteristics
are concerned does not mean that it is free to ignore otherwise
valid state or federal rules or regulations that do
Page 435 U. S. 169
not constitute design or construction specifications. Registered
vessels, for example, as we have already indicated, must observe
Washington's pilotage requirement. In our view, both enrolled and
registered vessels must also comply with the provision of the
Tanker Law that requires tug escorts for tankers over 40,000 DWT
that do not satisfy the design provisions specified in §
88.16.190(2). This conclusion requires analysis of Title I of the
PWSA, 33 U.S.C. §§ 1221-1227 (1970 ed., Supp. V).
A
In order to prevent damage to vessels, structures, and shore
areas, as well as environmental harm to navigable waters and the
resources therein that might result from vessel or structure
damage, Title I authorizes the Secretary to establish and operate
"vessel traffic services and systems" for ports subject to
congested traffic, [
Footnote
20] as well as to require ships to comply with the systems and
to have the equipment necessary to do so. §§ 1221(1) and (2). The
Secretary may "control vessel traffic" under various hazardous
conditions by specifying the times for vessel movement, by
establishing size and speed limitations and vessel operating
conditions, and by restricting
Page 435 U. S. 170
vessel operation to those vessels having the particular
operating characteristics which he considers necessary for safe
operation under the circumstances. § 1221(3). In addition, the
Secretary may require vessels engaged in foreign trade to carry
pilots until the State having jurisdiction establishes a pilot
requirement, § 1221(5); he may establish minimum safety equipment
requirements for shore structures, § 1221(7); and he may establish
waterfront safety zones or other measures for limited, controlled,
or conditional access when necessary for the protection of vessels,
structures, waters, or shore areas, § 1221(8).
In carrying out his responsibilities under the Act, the
Secretary may issue rules and regulations. § 1224. In doing so, he
is directed to consider a wide variety of interests that might
affect the exercise of his authority, such as possible
environmental impact, the scope and degree of the hazards involved,
and
"vessel traffic characteristics including minimum interference
with the flow of commercial traffic, traffic volume, the sizes and
types of vessels, the usual nature of local cargoes, and similar
factors."
§ 1222(e). Section 1222(b) provides that nothing in Title I is
to
"prevent a State or political subdivision thereof from
prescribing for structures only higher safety equipment
requirements or safety standards than those which may be prescribed
pursuant to this chapter."
Exercising this authority, the Secretary, through his delegate,
the Coast Guard, has issued Navigation Safety Regulations, 33 CFR
Part 164 (adopted at 42 Fed.Reg. 5956 (1977)). Of particular
importance to this case, he has promulgated the Puget Sound Vessel
Traffic System containing general rules, communication rules,
vessel movement reporting requirements, a traffic separation
scheme, special rules for ship movement in Rosario Strait,
descriptions and geographic coordinates of the separation zones and
traffic lanes, and a specification for precautionary areas and
reporting points. [
Footnote
21] 33 CFR Part 161,
Page 435 U. S. 171
Subpart B (1976), as amended, 42 Fed.Reg. 29480 (1977). There is
also delegated to Coast Guard district commanders and captains of
ports the authority to exercise the Secretary's powers under §
1221(3) to direct the anchoring, mooring, and movements of vessels;
temporarily to establish traffic routing schemes; and to specify
vessel size and speed limitations and operating conditions. 33 CFR
§ 160.35 (1976). Traffic in Rosario Strait is subject to a local
Coast Guard rule prohibiting "the passage of more than one 70,000
DWT vessel through Rosario Strait in either direction at any given
time." During the periods of bad weather, the size limitation is
reduced to approximately 40,000 DWT. App. 65.
B
A tug escort provision is not a design requirement, such as is
promulgated under Title II. It is more akin to an operating rule
arising from the peculiarities of local waters that call for
special precautionary measures, and, as such, is a safety measure
clearly within the reach of the Secretary's authority under §§
1221(3)(iii) and (iv) to establish "vessel size and speed
limitations and vessel operating conditions" and to restrict vessel
operation to those with "particular operating characteristics and
capabilities. . . ." Title I, however, merely authorizes, and does
not require, the Secretary to issue regulations to implement the
provisions of the Title; and, assuming that § 1222(b) prevents a
State from issuing "higher safety equipment requirements or safety
standards,"
see infra at
435 U. S. 174,
it does so only with respect to those requirements or standards
"which may be prescribed pursuant to this chapter."
The relevant inquiry under Title I with respect to the State's
power to impose a tug escort rule is thus whether the Secretary has
either promulgated his own tug requirement for Puget Sound tanker
navigation or has decided that no such
Page 435 U. S. 172
requirement should be imposed at all. It does not appear to us
that he has yet taken either course. He has, however, issued an
advance notice of proposed rulemaking, 41 Fed.Reg. 18770 (1976), to
amend his Navigation Safety Regulations issued under Title I, 33
CFR Part 164 (1977), so as to require tug escorts for certain
vessels operating in confined waters. [
Footnote 22] The notice says that these rules, if
adopted, "are intended to provide uniform guidance for the maritime
industry and Captains of the Port." 41 Fed.Reg. 18771 (1976). It
may be that rules will be forthcoming that will preempt the State's
present tug escort rule, but until that occurs, the State's
requirement need not give way under the Supremacy Clause. [
Footnote 23] Nor, for constitutional
purposes, does it make substantial difference that. under the
Tanker Law, those vessels that satisfy the State's design
requirements are, in effect, exempted from
Page 435 U. S. 173
the tug escort requirement. [
Footnote 24] Given the validity of a general rule
prescribing tug escorts for all tankers, Washington is also
privileged, insofar as the Supremacy Clause is concerned, to waive
the rule for tankers having specified design characteristics.
[
Footnote 25] For this
reason, we conclude that the District Court erred in holding that
the alternative tug requirement of § 88.1.190(2) was invalid
because of its conflict with the PWSA.
VI
We cannot arrive at the same conclusion with respect to the
remaining provision of the Tanker Law at issue here. Section
88.16.190(1) excludes from Puget Sound under any circumstances any
tanker in excess of 125,000 DWT. In our
Page 435 U. S. 174
view, this provision is invalid in light of Title I and the
Secretary's actions taken thereunder.
We begin with the premise that the Secretary has the authority
to establish "vessel size and speed limitations," § 1221(3)(iii),
and that local Coast Guard officers have been authorized to
exercise this power on his behalf. Furthermore, § 1222(b), by
permitting the State to impose higher equipment or safety standards
"for structures only," impliedly forbids higher state standards for
vessels. The implication is strongly supported by the legislative
history of the PWSA. The House Report explains that the original
wording of the bill did "not make it absolutely clear that the
Coast Guard regulation of vessels preempts state action in this
field," and says that § 1222(b) was amended to provide "a positive
statement retaining State jurisdiction over structures and making
clear that State regulation of vessels is not contemplated." House
Report 15.
Relying on the legislative history, the appellants argue that
the preclusive effect of § 1222(b) is restricted to vessel
equipment requirements. The statute, however, belies this argument,
for it expressly reaches vessel "safety standards," as well as
equipment. A limitation on vessel size would seem to fall squarely
within the category of safety standards, since the Secretary's
authority to impose size limits on vessels navigating Puget Sound
is designed to prevent damage to vessels and to the navigable
waters. and is couched in terms of controlling vessel traffic in
areas "which he determines to be especially hazardous."
The pertinent inquiry at this point thus becomes whether the
Secretary, through his delegate, has addressed and acted upon the
question of size limitations. Appellees and the United States
insist that he has done so by his local navigation rule with
respect to Rosario Strait: the rule prohibits the passage of more
than one 70,000 DWT vessel through Rosario Strait in either
direction at any given time, and in periods of
Page 435 U. S. 175
bad weather, the "size limitation" is reduced to approximately
40,000 DWT. On the record before us, it appears sufficiently clear
that federal authorities have indeed dealt with the issue of size,
and have determined whether and in what circumstances tanker size
is to limit navigation in Puget Sound. The Tanker Law purports to
impose a general ban on large tankers, but the Secretary's response
has been a much more limited one. Because, under § 1222(b), the
State may not impose higher safety standards than those prescribed
by the Secretary under Title I, the size limitation of §
88.16.190(1) may not be enforced.
There is also force to the position of appellees and the United
States that the size regulation imposed by the Tanker Law, if not
preempted under Title I, is similar to or indistinguishable from a
design requirement which Title II reserves to the federal regime.
This may be true if the size limit represents a state judgment
that, as a matter of safety and environmental protection generally,
tankers should not exceed 125,000 DWT. In that event, the State
should not be permitted to prevail over a contrary design judgment
made by federal authorities in pursuit of uniform national and
international goals. On the other hand, if Washington's exclusion
of large tankers from Puget Sound is, in reality, based on water
depth in Puget Sound or on other local peculiarities, the Tanker
Law in this respect would appear to be within the scope of Title I,
in which event also state and federal law would represent contrary
judgments, and the state limitation would have to give way.
[
Footnote 26]
Our conclusion as to the State's ban on large tankers is
consistent with the legislative history of Title I. In exercising
his authority under the Title, the Secretary is directed
Page 435 U. S. 176
to consult.with other agencies in order "to assure consistency
of regulations . . . ," § 1222(c), and also to "consider fully the
wide variety of interests which may be affected. . . ." § 1222(e).
These twin themes -- consistency of regulation and thoroughness of
consideration -- reflect the substance of the Committee Reports.
The House Report indicates that a good number of the witnesses who
testified before the House subcommittee stated that one of the
strong points of Title I was
"the imposition of federal control in the areas envisioned by
the bill which will insure regulatory and enforcement uniformity
throughout all the covered areas."
House Report 8. [
Footnote
27] Such a view was expressed by the Commandant of the
Page 435 U. S. 177
Coast Guard, Admiral Bender, who pointed out that, with a
federally operated traffic system, the necessary research and
development could be carried out by a single authority, and then
utilized around the country "with differences applied . . . to the
particular ports. . . ."
Ibid. He added that the same
agency of the Federal Government that developed the traffic systems
should then be responsible for enforcing them.
Ibid.
While the House Report notes the importance of uniformity of
regulation and enforcement, the Senate Report stresses the careful
consideration that the Secretary must give to various factors
before exercising his authority under Title I. It states that the
Secretary
"is required to balance a number of considerations, including
the scope and degree of hazard, vessel traffic characteristics,
conditions peculiar to a particular port or waterway, environmental
factors, economic impact, and so forth."
Senate Report 34. It was also
"anticipated that the exercise of the authority provided . . .
regarding the establishment of vessels size and speed limitations
[would] not be imposed universally, but rather [would] be exercised
with due consideration to the factors"
set forth above, and with due regard for
"such matters as combinations of horsepower, drafts of vessels,
rivers, depth and width of channels, design types of vessels
involved, and other relevant circumstances."
Id. at 33.
We read these statements by Congress as indicating that it
desired someone with an overview of all the possible ramifications
of the regulation of oil tankers to promulgate limitations on
tanker size, and that he should act only after balancing all of the
competing interests. While it was not anticipated that the final
product of this deliberation would be the promulgation of traffic
safety systems applicable across the board to all United States
ports, it was anticipated that there would be a single
decisionmaker, rather than a different one in each State.
Against this background, we think the preemptive impact
Page 435 U. S. 178
of § 1222(b) is an understandable expression of congressional
intent. Furthermore, even without § 1222(b), we would be reluctant
to sustain the Tanker Law's absolute ban on tankers larger than
125,00 DWT. The Court has previously recognized that
"where failure of . . . federal officials affirmatively to
exercise their full authority takes on the character of a ruling
that no such regulation is appropriate or approved pursuant to the
policy of the statute,"
States are not permitted to use their police power to enact such
a regulation.
Bethehem Steel Co. v. New York State Labor
Relations Board, 330 U. S. 767,
330 U. S. 774
(1947);
Napier v. Atlantic Coast Line R. Co., 272 U.
S. 605 (1928). We think that, in this case, the
Secretary's failure to promulgate a ban on the operations of oil
tankers in excess of 125,000 DWT in Puget Sound takes on such a
character. As noted above, a clear policy of the statute is that
the Secretary shall carefully consider "the wide variety of
interests which may be affected by the exercise of his authority,"
§ 1222(e), and that he shall restrict the application of vessel
size limitations to those areas where they are particularly
necessary. In the case of Puget Sound, the Secretary has exercised
his authority in accordance with the statutory directives, and has
promulgated a vessel traffic control system which contains only a
narrow limitation on the operation of supertankers. This being the
case, we conclude that Washington is precluded from enforcing the
size limitation contained in the Tanker Law. [
Footnote 28]
Page 435 U. S. 179
VII
We also reject appellees' additional constitutional challenges
to the State's tug escort requirement for vessels not satisfying
its design standards. [
Footnote
29] Appellees contend that this provision, even if not
preempted by the PWSA, violates the Commerce Clause because it is
an indirect attempt to regulate the design and equipment of
tankers, an area of regulation that appellees contend necessitates
a uniform national rule. We have previously rejected this claim,
concluding that the provision may be viewed as simply a tug escort
requirement, since it does not have the effect of forcing
compliance with the design specifications set forth in the
provision.
See n
25,
supra. So viewed, it become apparent that the Commerce
Clause does not prevent a State from enacting a regulation of this
type. Similar in its nature to a local pilotage requirement, a
requirement that a vessel take on a tug escort when entering a
particular body of water is not the type of regulation that demands
a uniform national rule.
See Cooley v. Board of
Wardens, 12 How. 299 (1852). Nor does it appear
from the record that the requirement impedes the free and
Page 435 U. S. 180
efficient flow of interstate and foreign commerce, for the cost
of tug escort for a 120,000 DWT tanker is less than one cent per
barrel of oil, and the amount of oil processed at Puget Sound
refineries has not declined as a result of the provision's
enforcement. App. 68. Accordingly, we hold that § 88.16.190(2) of
the Tanker Law is not invalid under the Commerce Clause.
Similarly, we cannot agree with the additional claim that the
tug escort provision interferes with the Federal Government's
authority to conduct foreign affairs. Again, appellees' argument is
based on the contention that the overall effect of § 88.16.190(2)
is to coerce tanker owners into outfitting their vessels with the
specified design requirements. Were that so, we might agree that
the provision constituted an invalid interference with the Federal
Government's attempt to achieve international agreement on the
regulation of tanker design. The provision as we view it, however,
does no more than require the use of tug escorts within Puget
Sound, a requirement with insignificant international consequences.
We, therefore, decline to declare § 88.16.190(2) invalid for either
of the additional reasons urged by appellees.
Accordingly, the judgment of the three-judge District Court is
affirmed in part and reversed in part, and the case is remanded for
further proceedings consistent with this opinion.
It s so ordered.
[
Footnote 1]
Puget Sound is an estuary consisting of 2,500 square miles of
inlets, bays, and channels in the northwestern part of Washington.
More than 200 islands are located within the Sound, and numerous
marshes, tidal flats, wetlands, and beaches are found along the
2,000 miles of shoreline. The Sound's waters and shorelines provide
recreational, scientific, and educational opportunities, as well as
navigational and commercial uses, for Washington citizens and
others. The Sound, which is connected to the Pacific Ocean by the
Strait of Juan de Fuca, is constantly navigated by commercial and
recreational vessels, and is a water resource of great value to the
State, as well as to the United States.
[
Footnote 2]
We were informed during oral argument by the Attorney General of
Washington that the pipeline from Canada to Cherry Point is no
longer in service. Tr. of Oral Arg. 6.
[
Footnote 3]
The term "deadweight tons" is defined for purposes of the Tanker
Law as the cargo-carrying capacity of a vessel, including necessary
fuel oils, stores, and potable waters, as expressed in long tons
(2,240 pounds per long ton).
[
Footnote 4]
Four environmental groups -- Coalition Against Oil Pollution,
National Wildlife Federation, Sierra Club, and Environmental
Defense Fund, Inc. -- and the prosecuting attorney for King County,
Wash., intervened as defendants.
[
Footnote 5]
The United States has since modified its views, and no longer
contends that the Tanker Law is in all respects preempted by
federal law.
[
Footnote 6]
The state defendants challenged the District Court's
jurisdiction over them, asserting sovereign immunity under the
Eleventh Amendment. They recognized that in
Ex parte
Young, 209 U. S. 123
(1908), the Court held that the Eleventh Amendment does not bar
suit in federal court against a state official for the purpose of
obtaining an injunction against his enforcement of a state law
alleged to be unconstitutional, but urged the District Court to
overrule that decision or to restrict its application. The District
Court declined to do so. The request is repeated here, and we
reject it.
[
Footnote 7]
Enrolled vessels are those "engaged in domestic or coastwide
trade or used for fishing," whereas registered vessels are those
engaged in trade with foreign countries.
Douglas v. Seacoast
Products, Inc., 431 U. S. 265,
431 U. S.
272-273 (1977).
[
Footnote 8]
Included within the definition of steam vessels are
"[a]ll vessels, regardless of tonnage size, or manner of
propulsion, and whether self-propelled or not, and whether carrying
freight or passengers for hire or not, . . . that shall have on
board liquid cargo in bulk which is -- (A) inflammable or
combustible, or (b) oil, of any kind or in any form, . . . or (C)
designated as a hazardous polluting substance. . . ."
46 U.S.C. § 391a(2) (1970 ed., Supp. V).
[
Footnote 9]
The Senate Report compares Title I to "providing safer surface
highways and traffic controls for automobiles," while Title II is
likened to "providing safer automobiles to transit those highways."
S.Rep. No. 92-724, pp. 9-10 (1972) (Senate Report).
[
Footnote 10]
The Coast Guard is located in the Department of Transportation.
Thus, references to the "Secretary" are to the Secretary of that
Department.
[
Footnote 11]
The Secretary's current safety regulations with respect to the
design and equipment of tank vessels appear at 46 CFR Parts 30-40
(1976). Section 31.05-1 of the regulations provides for the
issuance of certificates of inspection to covered vessels complying
with the applicable law and regulations and for endorsement thereon
showing approval for the carriage of the particular cargoes
specified. The regulation provides that "such endorsement shall
serve as a permit for such vessel to operate."
[
Footnote 12]
As directed by Title II, the Secretary, through his delegate,
the Coast Guard,
see 49 CFR § 1.46(n)(4) (1976), has
issued rules and regulations for protection of the marine
environment relating to United States tank vessels carrying oil in
domestic trade. 33 CFR Part 157 (1977). These regulations were
initially designed to conform to the standards specified in a 1973
international convention, but have since been supplemented by
additional requirements for new vessels going beyond the
convention. 41 Fed.Reg. 54177 (1976). They have also been extended
to vessels in the foreign trade, including foreign-flag vessels.
Ibid. It appears that the Coast Guard is now engaged in a
rulemaking proceeding which looks toward the imposition of still
more stringent design and construction standards. 42 Fed.Reg. 24868
(1977).
[
Footnote 13]
Title II, in relevant part, 46 U.S.C. § 391a(7)(A) (1970 ed.,
Supp. V), provides:
"Such rules and regulations shall, to the extent possible,
include but not be limited to standards to improve vessel
maneuvering and stopping ability and otherwise reduce the
possibility of collision, grounding, or other accident, and to
reduce damage to the marine environment by normal vessel operations
such as ballasting and deballasting, cargo handling, and other
activities."
[
Footnote 14]
It should also be noted that the Secretary has authority under
Title II to insure that adequately trained personnel are in charge
of tankers. He is authorized to certify "tankermen" and to state
the kinds of cargo that the holder of such certificate is, in the
judgment of the Secretary, qualified to handle aboard vessels with
safety. 46 U.S.C. § 391a(9) (1970 ed., Supp. V).
[
Footnote 15]
The Court has previously observed that ship design and
construction standards are matters for national attention. In
Kelly v. Washington, 302 U. S. 1 (1937),
in the course of upholding state inspection of the particular
vessels there involved, the Court stated that the state law was "a
comprehensive code" and that
"it has provisions which may be deemed to fall within the class
of regulations which Congress alone can provide. For example,
Congress may establish standards and designs for the structure and
equipment of vessels, and may prescribe rules for their operation,
which could not properly be left to the diverse action of the
States. The State of Washington might prescribe standards, designs,
equipment and rules of one sort, Oregon another, California
another, and so on."
Id. at
302 U. S. 14-15.
Here, Congress has taken unto itself the matter of tanker design
standards, and the Tanker Law's design provisions are
unenforceable.
[
Footnote 16]
Elsewhere in the Senate Report, it is stated:
"The committee fully concurs that multilateral action with
respect to comprehensive standards for the design, construction,
maintenance and operation of tankers for the protection of the
marine environment would be far preferable to unilateral imposition
of standards."
Senate Report 23.
[
Footnote 17]
The Senate Report notes that eliminating foreign vessels from
Title II would be "ineffective, and possibly self-defeating,"
because approximately 85% of the vessels in the navigable waters of
the United States are of foreign registry.
Id. at 22. The
Report adds that making the Secretary's regulations applicable only
to American ships would put them at a competitive disadvantage with
foreign-flag ships.
Ibid.
[
Footnote 18]
The Department of State and the Department of Transportation, as
well as 12 foreign nations, expressed concern about Title II's
authorization of the unilateral imposition of design standards on
foreign vessels.
Id. at 23.
[
Footnote 19]
We are unconvinced that, because Title II speaks of the
establishment of comprehensive "minimum standards,"
Florida
Lime & Avocado Growers, Inc. v. Paul, 373 U.
S. 132 (1963), requires recognition of state authority
to impose higher standards than the Secretary has prescribed. In
that case, we sustained the state regulation against claims of
preemption, but we did not rely solely on the statutory reference
to "minimum standards" or indicate that it furnished a litmus paper
test for resolving issues of preemption. Indeed, there were other
provisions in the Federal Act in question that "militate[d] even
more strongly against federal displacement of [the] state
regulations."
Id. at
373 U. S. 148.
Furthermore, the federal regulations claimed to preempt state law
were drafted and administered by local organizations, and were
"designed to do no more than promote orderly competition among the
South Florida [avocado] growers."
Id. at
373 U. S. 151.
Here it is sufficiently clear that Congress directed the
promulgation of standards on the national level, as well as
national enforcement, with vessels having design characteristics
satisfying federal law being privileged to carry tank vessel
cargoes in United States waters.
[
Footnote 20]
From 1950 until the PWSA was enacted, the Coast Guard carried
out its port safety program pursuant to a delegation from the
President of his authority under the Magnuson Act, 50 U.S.C. § 191.
That Act based the President's authority to promulgate rules
governing the operation and inspection of vessels upon his
determination that the country's national security was endangered.
H.R.Rep. No 92-563, p. 2 (1971) (House Report). The House Committee
that considered Title I of the PWSA intended it to broaden the
Coast Guard's authority to establish rules for port safety and
protection of the environment. The Committee Report states:
"The enactment of H.R. 8140 would serve an important dual
purpose. First, it would bolster the Coast Guard's authority and
capability to handle adequately the serious problems of marine
safety and water pollution that confront us today. Second, it would
remedy the longstanding problem concerning the statutory basis for
the Coast Guard's port safety program."
Ibid.
[
Footnote 21]
Local Coast Guard authorities have published an operating manual
containing the vessel traffic system for Puget Sound and
explanatory materials. App. 155.
[
Footnote 22]
The advance notice of proposed rulemaking states:
"The Coast Guard is considering amending Part 164 of Title 33,
Code of Federal Regulations to require minimum standards for tug
assistance for vessels operating in confined waters to reduce the
potential for collisions, rammings, and groundings in these
areas."
41 Fed.Reg. 18770 (1976). It states that the following factors
will be considered in developing the rules: size of vessel,
displacement, propulsion, availability of multiple screws or bow
thrusters, controllability, type of cargo, availability of safety
standards, and actual or predicted adverse weather conditions.
Id. at 18771.
[
Footnote 23]
Appellees insist that the Secretary, through his Coast Guard
delegates, has already exercised his authority to require tugs in
Puget Sound to the extent he deems necessary, and that the State
should therefore not be permitted to impose stricter provisions.
Appellees submit letters or other evidence indicating that the
local Coast Guard authorities have required tug escorts for
carriers of liquefied petroleum gas and on one occasion for another
type of vessel. This evidence is not part of the record before us;
but even accepting it, we cannot say that federal authorities have
settled upon whether and in what circumstances tug escorts for oil
tankers in Puget Sound should be required. The entire subject of
tug escorts has been placed on the Secretary's agenda, seemingly
for definitive action, by the notice of proposed rulemaking
referred to in the text.
[
Footnote 24]
In fact, at the time of trial, all tankers entering Puget Sound
were required to have a tug escort, for no tanker then afloat had
all of the design features required by the Tanker Law. App. 66.
[
Footnote 25]
We do not agree with appellees' assertion that the tug escort
provision, which is an alternative to the design requirements of
the Tanker Law, will exert pressure on tanker owners to comply with
the design standards, and hence is an indirect method of achieving
what they submit is beyond state power under Title II. The cost of
tug escorts for all of appellee ARCO's tankers in Puget Sound is
estimated at $277,500 per year. While not a negligible amount, it
is only a fraction of the estimated cost of outfitting a single
tanker with the safety features required by § 88.16.190(2). The
Office of Technology Assessment of Congress has estimated that
constructing a new tanker with a double bottom and twin screws,
just two of the required features, would add roughly $8.8 million
to the cost of a 150,000 DWT tanker. Thus, contrary to the
appellees' contention, it is very doubtful that the provision will
pressure tanker operators into complying with the design standards
specified in § 88.16.190(2). While the tug provision may be viewed
as a penalty for noncompliance with the State's design
requirements, it does not "stan[d] as an obstacle to the
accomplishment and execution of the full purposes and objectives of
Congress."
Hines v. Davidowitz, 312 U. S.
52,
312 U. S. 67
(1941). The overall effect of § 88.16.190(2) is to require tankers
of over 40,000 WT to have a tug escort while they navigate Puget
Sound, a result in no way inconsistent with the PWSA as it is
currently being implemented.
[
Footnote 26]
It appears that the minimum water depth in Rosario Strait is 60
feet, App. 65, which, according to the design standards used by the
United States at the 1973 International Conference on Marine
Pollution, would accommodate vessels well in excess of 120,000 DWT.
Id. at 80.
[
Footnote 27]
During the hearings in the House, for example, Representative
Keith expressed concern that States might, on their own, enact
regulations restricting the size of vessels, noting that Delaware
had already done so. He stated that "[w]e do not want the States to
resort to individual actions that adversely affect our national
interest." Hearings on H.R. 867, H.R. 3635, H.R. 8140, before the
Subcommittee on Coast Guard, Coast and Geodetic Survey, and
Navigation of the House Committee on Merchant Marine and Fisheries,
92d Cong., 1st Sess., 30 (1971). The Commandant of the Coast Guard,
Admiral Bender, responded that the Coast Guard "believe[s] it is
preferable for the approach to the problem of the giant tankers in
particular to be resolved on an international basis."
Ibid.
A representative of the Sierra Club testified before the Senate
committee considering the PWSA and suggested the advisability of
regulations limiting the size of vessels. Hearings on S. 2074
before the Senate Committee on Commerce, 92d Cong., 1st Sess., 78
(1971). In response to this suggestion, Senator Inouye questioned
whether the necessary result of such a regulation would not be an
increase in the number of tankers, so as to meet the Nation's
requirements for oil. The Sierra Club witness acknowledged that
there was "some controversy even among the oil company people as to
which would be the most hazardous, more smaller ships or fewer
bigger ships."
Id. at 81. This statement is consistent
with the stipulation of facts, App. 84, which states:
"Experts differ and there is good faith dispute as to whether
the movement of oil by a smaller number of tankers in excess of
125,000 DWT in Puget Sound poses an increased risk of oil spillage
compared to the risk from movement of a similar amount of oil by a
larger number of smaller tankers in Puget Sound."
[
Footnote 28]
We find no support for the appellants' position in the other
federal environmental legislation they cite,
i.e., the
Federal Water Pollution Control Act Amendments of 1972, 86 Stat.
816, 33 U.S.C. § 1251
et seq. (1970 ed., Supp. V); the
Coastal Zone Management. Act of 1972, 86 Stat. 1280, 16 U.S.C. §
1451
et seq. (1976 ed.); and the Deepwater Port Act of
1974, 88 Stat. 2126, 33 U.S.C. § 1501
et seq. (1970 ed.,
Supp. V). While those statutes contemplate cooperative
state-federal regulatory efforts, they expressly state that intent,
in contrast to the PWSA. Furthermore, none of them concerns the
regulation of the design or size of oil tankers, an area in which
there is a compelling need for uniformity of decisionmaking.
Appellees and the United States as
amicus curiae urge
that the Tanker Law's size limit also conflicts with the policy of
the Merchant Marine Act, 1936, 49 Stat.1985, as amended, 46 U.S.C.
§ 1101
et seq. (1970 ed. and Supp. V), and the tanker
construction program established thereunder by the Maritime
Administration in implementation of its duty under the Act to
develop an adequate and well balanced merchant fleet. Under this
program, the construction of tankers of various sizes is
subsidized, including tankers far in excess of 125,000 DWT. The
Maritime Administration has rejected suggestions that no subsidies
be offered for the building of the larger tankers. There is some
force to the argument, but we need not rely on it.
[
Footnote 29]
Although the District Court did not reach these additional
grounds, the issues involved are legal questions, and the record
seems sufficiently complete to warrant their resolution here
without a remand to the District Court.
MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR.
JUSTICE REHNQUIST join, concurring in part and dissenting in
part.
The Washington Tanker Law at issue here has three operative
provisions: (1) a requirement that every oil tanker of 50,000
deadweight tons (DWT) or larger employ a pilot licensed by the
State of Washington while navigating Puget Sound and adjacent
waters, Wash.Rev.Code § 88.16.180 (Supp. 1975); (2) a requirement
that every oil tanker of from 40,000 to 125,000 DWT either possess
certain safety features or
Page 435 U. S. 181
utilize tug escorts while operating in Puget Sound, §
88.16.190(2); and (3) a size limitation, barring tankers in excess
of 125,000 DWT from the Sound, § 88.16.190(1).
I agree with the Court that the pilotage requirement is
preempted only with respect to enrolled vessels. I also agree that
the tug escort requirement is fully valid, at least until such time
as the Secretary of Transportation or his delegate promulgates a
federal tug escort rule or decides, after full consideration, that
no such rule is necessary. I therefore join Parts I, II, III, V,
and VII of the Court's opinion.
In the current posture of this case, however, I see no need to
speculate, as the Court does, on the validity of the safety
features alternative to the tug requirement. Since the effective
date of the Tanker Law, all tankers -- including those owned or
chartered by appellees -- have employed tug escorts rather than
attempting to satisfy the alternative safety requirements. The
relative expense of compliance, moreover, makes it extremely
unlikely, at least for the foreseeable future, that any tankers
will be constructed or redesigned to meet the law's requirements.
[
Footnote 2/1] Indeed, the Court
itself concludes that § 88.16.190(2)
"may be viewed as simply a tug escort requirement, since it does
not have the effect of forcing compliance with the design
specifications set forth in the provision."
Ante at
435 U. S. 179;
see ante at
435 U. S. 173
n. 25, and
435 U. S. 180.
Accordingly, I cannot join
435 U. S.
I also cannot agree with the Court's conclusion in
435 U.
S. S. 182� is invalid under the Supremacy Clause. To
reach this conclusion, the Court relies primarily on an analysis of
Title I of the PWSA and the Secretary of Transportation's actions
thereunder. I agree with the Court that the Secretary has authority
to establish vessel size limitations based on the characteristics
of particular waters, [
Footnote
2/2] and that a State is not free to impose more stringent
requirements once the Secretary has exercised that authority or has
decided, after balancing all of the relevant factors, that a size
limitation would not be appropriate. On the other hand, Title I
does not, by its own force, preempt all state regulation of vessel
size, since it "merely authorizes, and does not require, the
Secretary to issue regulations to implement the provisions of the
Title."
Ante at
435 U. S. 171.
Thus, as the Court notes,
"[t]he pertinent inquiry at this point . . . [is] whether the
Secretary, through his delegate, has addressed and acted upon the
question of size limitations."
Ante at
435 U. S. 174.
The Court concludes that the Secretary's delegate, the Coast Guard,
has in fact considered the issue of size limitations for Puget
Sound and reached a judgment contrary to the one embodied in the
Tanker Law. Under well established principles, however, state law
should be displaced "
only to the extent necessary to protect
the achievement of the aims of'"
Page 435 U. S.
183
federal law; whenever possible, we should "reconcile `the
operation of both statutory schemes with one another, rather than
holding [the state scheme] completely ousted.'" Merrill Lynch,
Pierce, Fenner & Smith v. Ware, 414 U.
S. 117, 414 U. S. 127
(1973), quoting Silver v. New York Stock Exchange,
373 U. S. 341,
373 U. S. 361,
357 (1963); accord, De Canas v. Bica, 424 U.
S. 351, 424 U. S.
357-358, n. 5 (1976). Viewed in light of these
principles, the record simply does not support the Court's finding
of conflict between state and federal law.
The Coast Guard's unwritten "local navigation rule," which
prohibits passage of more than one 70,000 DWT vessel through
Rosario Strait at any given time, is the sole evidence cited by the
Court to show that size limitations for Puget Sound have been
considered by federal authorities.
Ante at
435 U. S.
174-175. On this record, however, the rule cannot be
said to reflect a determination that the size limitations set forth
in the Tanker Law are inappropriate or unnecessary. First, there is
no indication that, in establishing the vessel traffic rule for
Rosario Strait, the Coast Guard considered the need for
promulgating size limitations for the entire Sound. [
Footnote 2/3] Second, even assuming that
the Rosario Strait rule resulted from consideration of the size
issue with respect to the entire area, appellees have not
demonstrated
Page 435 U. S. 184
that the rule evinces a judgment contrary to the provisions of
the Tanker Law. Under the express terms of the PWSA, the existence
of local vessel traffic control schemes must be weighed in the
balance in determining whether, and to what extent, federal size
limitations should be imposed. [
Footnote 2/4] There is no evidence in the record that
the Rosario Strait "size limitation" was in existence or even under
consideration prior to passage of the Tanker Law. [
Footnote 2/5] Thus, appellees have left unrebutted
the inference that the Coast Guard's own limited rule was built
upon, and is therefore entirely consistent with, the framework
already created by the Tanker Law's restrictions.
Perhaps in recognition of the tenuousness of its finding of
conflict with federal regulation under Title I, the Court suggests
that the size limitation imposed by the Tanker Law might also be
preempted under Title II of the PWSA.
Ante at
435 U. S. 175.
In particular, the Court theorizes that the state rule might be
preempted if it "represents a state judgment that, as a matter of
safety and environmental protection
generally, tankers
should not exceed 125,000 DWT."
Ibid. (Emphasis added.) It
is clear, however, that the Tanker Law was not merely a reaction to
the problems arising out of tanker operations in general, but
instead was a measure tailored to respond to unique local
conditioning -- in particular, the unusual
Page 435 U. S. 185
susceptibility of Puget Sound to damage from large oil spills
and the peculiar navigational problems associated with tanker
operations in the Sound. [
Footnote
2/6] Thus, there is no basis for preemption under Title II.
[
Footnote 2/7]
Page 435 U. S. 186
For similar reasons, I would hold that Washington's size
regulation does not violate the Commerce Clause. Since water depth
and other navigational conditions vary from port to port, local
regulation of tanker access -- like pilotage and tug requirements,
and other harbor and river regulation -- is certainly appropriate,
and perhaps even necessary, in the absence of determinative federal
action.
See, e.g., 53 U. S. Board of
Wardens, 12 How. 299,
53 U. S. 319 (1852);
Packet Co. v.
Catlettsburg, 105 U. S. 559,
105 U. S.
562-563 (1882). Appellees have not demonstrated that the
Tanker Law's size limit is an irrational or ineffective means of
promoting safety and environmental protection, [
Footnote 2/8]
Page 435 U. S. 187
nor have they shown that the provision imposes any substantial
burden on interstate or foreign commerce. [
Footnote 2/9] Consequently, it is clear that appellees
have not carried their burden of showing that the provision's
impact on interstate or foreign commerce "is clearly excessive in
relation to the putative local benefits."
Pike v. Bruce Church,
Inc., 397 U. S. 137,
397 U. S. 142
(1970).
I do not find any of appellees' other arguments persuasive. I
would therefore sustain the size limitation imposed by the Tanker
Law.
[
Footnote 2/1]
According to the record, no tanker currently afloat has all the
design features prescribed by the Tanker Law. Neither Atlantic
Richfield nor Seatrain has plans to modify any tankers currently in
operation to satisfy the design standards, "because such retrofit
is not economically feasible under current and anticipated market
conditions." App. 67. Moreover, the vessels being constructed by
Seatrain will not meet the majority of the design requirements,
and, as the Court convincingly demonstrates,
ante at
435 U. S. 173
n. 25, the Tanker Law is not likely to induce tanker owners to
incorporate the specified design features into new tankers.
[
Footnote 2/2]
The relevant provision of Title I states:
"In order to prevent damage to, or the destruction or loss of
any vessel, bridge, or other structure on or in the navigable
waters of the United States, or any land structure or shore area
immediately adjacent to those waters; and to protect the navigable
waters and the resources therein from environmental harm resulting
from vessel or structure damage, destruction, or loss, the
Secretary of the department in which the Coast Guard is operating
may --"
"
* * * *"
"(3) control vessel traffic in areas which he determines to be
especially hazardous, or under conditions of reduced visibility,
adverse weather, vessel congestion, or other hazardous
circumstances by --"
"
* * * * "
"(iii) establishing vessel size and speed limitations and vessel
operating conditions. . . ."
33 U.S.C. § 1221(3)(iii) (1970 ed., Supp. V).
[
Footnote 2/3]
The Rosario Strait "size limitation" is not contained in any
written rule or regulation, and the record does not indicate how it
came into existence. The only reference in the record is the
following statement in the stipulation of facts:
"The Coast Guard prohibits the passage of more than one 70,000
DWT vessel through Rosario Strait in either direction at any given
time. During periods of bad weather, the size limitation is reduced
to approximately 40,000 DWT."
App. 65.
The Puget Sound Vessel Traffic System, 33 CFR Part 161, Subpart
B (1976), as amended, 42 Fed.Reg. 29480 (1977), does not contain
any size limitation, and the necessity for such a limitation
apparently was never considered during the rulemaking process.
See 38 Fed.Reg. 21228 (1973) (notice of proposed
rulemaking); 39 Fed.Reg. 25430 (1974) (summary of comments received
during rulemaking).
[
Footnote 2/4]
Title I provides in relevant part:
"In determining the need for, and the substance of, any rule or
regulation or the exercise of other authority hereunder the
Secretary shall, among other things, consider -- "
"
* * * *"
"(6) existing vessel traffic control systems, services, and
schemes; and"
"(7) local practices and customs. . . ."
33 U.S.C. § 1222(e) (1970 ed., Supp. V).
[
Footnote 2/5]
The stipulation of facts does not specify when the size rule for
Rosario Strait was established. The rule apparently was in force at
the time the stipulation was entered,
see 435
U.S. 151fn2/3|>n. 3,
supra, but the Tanker Law had
gone into effect prior to that time.
[
Footnote 2/6]
The Tanker Law contains the following statement of intent and
purpose:
"Because of the danger of spills, the legislature finds that the
transportation of crude oil and refined petroleum products by
tankers on Puget Sound and adjacent waters creates a great
potential hazard to important natural resources of the state and to
jobs and incomes dependent on these resources."
"The legislature also recognizes Puget Sound and adjacent waters
are a relatively confined salt water environment with irregular
shorelines and therefore there is a greater than usual likelihood
of long-term damage from any large oil spill."
"The legislature further recognizes that certain areas of Puget
Sound and adjacent waters have limited space for maneuvering a
large oil tanker and that these waters contain many natural
navigational obstacles as well as a high density of commercial and
pleasure boat traffic."
Wash.Rev.Code § 88.16.170 (Supp. 1975). The natural navigational
hazards in the Sound are compounded by fog, tidal currents, and
wind conditions, in addition to the high density of vehicle
traffic. App. 69.
Among the "areas . . . [with] limited space for maneuvering a
large oil tanker" referred to by the Washington Legislature is
undoubtedly Rosario Strait. The Strait is less than one-half mile
wide at its narrowest point, Exh. G, and portions of the shipping
route through the Strait have a depth of only 60 feet. App. 65. (A
190,000 DWT tanker has a draft of approximately 61 feet, and a
120,000 DWT tanker has a draft of approximately 52 feet.
Id. at 80.)
[
Footnote 2/7]
In addition to finding the Tanker Law's size limit to be
inconsistent with the PWSA and federal actions thereunder, the
Court suggests that "[t]here is some force to the argument" that
the size limit conflicts with the tanker construction program
established by the Maritime Administration pursuant to the Merchant
Marine Act, 1936.
Ante at
435 U. S. 179
n. 28. The Court does not rely on this argument, however, and it is
totally lacking in factual basis. While it is true that
construction of tankers larger than 125,000 DWT has been subsidized
under the program, almost two-thirds of the tankers that have been
or are being constructed have been smaller than 125,000 DWT, App.
60; of the remainder, the smallest are 225,000 DWT vessels with
drafts well in excess of 60 feet -- too large to pass through
Rosario Strait,
see 435
U.S. 151fn2/6|>n. 6,
supra, or dock at any of the
refineries on Puget Sound (Atlantic Richfield's refinery at Cherry
Point has a dockside depth of 55 feet; none of the other five
refineries on Puget Sound has sufficient dockside depth even to
accommodate tankers as large as 125,000 DWT. App. 47-48, 80).
Appellees advance one final argument for invalidating the
125,000 DWT size limit under the Supremacy Clause. Relying on the
well established proposition that federal enrollment and licensing
of a vessel give it authority to engage in coastwise trade and to
navigate in state waters,
Douglas v. Seacoast Products,
Inc., 431 U. S. 265,
431 U. S. 276,
431 U. S.
280-281 (1977);
Gibbons v.
Ogden, 9 Wheat. 1,
22 U. S. 212-214
(1824), appellees assert that Washington may not exclude from any
of its waters tankers that have been enrolled and licensed, or
registered, pursuant to the federal vessel registration,
enrollment, and licensing laws, 46 U.S.C. §§ 221, 251, 263. Even
assuming that registration of a vessel carries with it the same
privileges as enrollment and licensing, this argument ignores a
proposition as well established as the one relied on by appellees:
notwithstanding the privileges conferred by the federal vessel
license,
"States may impose upon federal licensees reasonable,
nondiscriminatory conservation and environmental protection
measures otherwise within their police power."
Douglas v. Seacoast Products, Inc., supra at
431 U. S. 277;
see, e.g., Huron Portland Cement Co. v. Detroit,
362 U. S. 440
(1960);
Manchester v. Massachusetts, 139 U.
S. 240 (1891);
Smith v.
Maryland, 18 How. 71 (1855). The Tanker Law's size
limitation appears to be a reasonable environmental protection
measure,
see 435
U.S. 151fn2/8|>n. 8,
infra and it is imposed
evenhandedly against both residents and nonresidents of the
State.
[
Footnote 2/8]
The stipulation quoted by the Court,
ante at
435 U. S. 176
n. 27, merely establishes that there is good faith dispute as to
whether exclusion of large tankers will, in fact, reduce the risk
of oil spillage in Puget Sound. A showing that there is conflicting
evidence is not sufficient to undercut the presumption that a
State's police power has been exercised in a rational manner.
See, e.g., Firemen v. Chicago, R.I. & P. R. Co.,
393 U. S. 129,
393 U. S.
138-139 (1968).
[
Footnote 2/9]
Exclusion of tankers larger than 125,000 DWT has not resulted in
any reduction in the amount of oil processed at the Puget Sound
refineries. App. 68. Moreover, according to the record, use of a
120,000 DWT tanker rather than a 150,000 DWT tanker increases the
cost of shipping oil from Valdez, Alaska, to Cherry Point by a mere
$.02 to $.04 per barrel,
id. at 64; and the record does
not specify the relevant cost data for the Persian Gulf-Cherry
Point route. Finally, appellees offered no concrete evidence of any
significant disruption in their tanker operations, or of any
decrease in the market value of the tankers that they own, as a
result of the Tanker Law's provisions.
MR. JUSTICE STEVENS, with whom MR. JUSTICE POWELL joins,
concurring in part and dissenting in part.
The federal interest in uniform regulation of commerce on the
high seas, reinforced by the Supremacy Clause, "dictates that the
federal judgment that a vessel is safe to navigate United States
waters prevail over the contrary state judgment."
Ante at
435 U. S. 165.
For that reason, as the Court explains in
435 U.
S. we must reject the judgment expressed by the
Legislature of the State of Washington that
Page 435 U. S. 188
an oil tanker of 40,000 to 125,000 deadweight tons cannot safely
navigate in Puget Sound unless it possesses the "standard safety
features" prescribed by § 88.16.190(2) of the Washington Code.
[
Footnote 3/1] As the Court holds,
the state statute imposing those design requirements is invalid. It
follows, I believe, that the State may not impose any special
restrictions on vessels which do not satisfy these invalid
criteria.
The Court correctly holds that the State may not exclude vessels
in that category from Puget Sound but it inconsistently allows the
State to impose a costly tug escort requirement on those vessels
and no others. This tug escort requirement is not, by its terms, a
general safety rule from which tankers are exempt if they possess
the invalid design features. [
Footnote
3/2] Quite the
Page 435 U. S. 189
contrary, the tug escort requirement is merely a proviso in §
88.16.190(2) -- the section of the Washington Tanker Law that
prescribes the design requirements; it is imposed only on tankers
that do not comply with those requirements. The federal interest
that prohibits state enforcement of those requirements should also
prohibit state enforcement of a special penalty for failure to
comply with them.
If the federal interest in uniformity is to be vindicated, the
magnitude of the special burden imposed by any one State's attempt
to penalize noncompliance with its invalid rules is of no
consequence. The tug escort penalty imposed by Washington will cost
appellee ARCO approximately $277,500 per year. The significance of
that cost cannot be determined simply by comparison with the
capital investment which would be involved in complying with
Washington's invalid design specifications. Rather, it should be
recognized that this initial burden is subject to addition and
multiplication by similar action in other States. [
Footnote 3/3] Moreover, whether or not so
multiplied, the imposition of any special restriction impairs the
congressional determination to provide uniform standards for vessel
design and construction. [
Footnote
3/4]
Page 435 U. S. 190
Since I am persuaded that the tug escort requirement is an
inseparable appendage to the invalid design requirements, the
invalidity of one necessarily infects the other. I therefore
respectfully dissent from Parts V and VII of the Court's opinion.
[
Footnote 3/5]
[
Footnote 3/1]
Washington Rev.Code § 88.16.190(2) (Supp. 1975) reads as
follows:
"(2) An oil tanker, whether enrolled or registered, of forty to
one hundred and twenty-five thousand deadweight tons may proceed
beyond the points enumerated in subsection (1) if such tanker
possesses all of the following standard safety features:"
"(a) Shaft horsepower in the ratio of one horsepower to each two
and one-half deadweight tons; and"
"(b) Twin screws; and"
"(c) Double bottoms, underneath all oil and liquid cargo
compartments; and"
"(d) Two radars in working order and operating, one of which
must be collision avoidance radar; and"
"(e) Such other navigational position location systems as may be
prescribed from time to time by the board of pilotage
commissioners:"
Provided, That, if such forty to one hundred and
twenty-five thousand deadweight ton tanker is in ballast or is
under escort of a tug or tugs with an aggregate shaft horsepower
equivalent to five percent of the deadweight tons of that tanker,
subsection (2) of this section shall not apply:
Provided
further, That additional tug shaft horsepower equivalencies
may be required under certain conditions as established by rule and
regulation of the Washington utilities and transportation
commission pursuant to chapter 34.04 RCW:
Provided
further, That a tanker of less than forty thousand deadweight
tons is not subject to the provisions of [this Act].
[
Footnote 3/2]
The Court,
ante at
435 U. S. 173,
seems to characterize the tug escort requirement as such a "general
rule."
[
Footnote 3/3]
The possibility of States' enacting legislation similar to
Washington's is not remote. Alaska has enacted legislation
requiring payment of a "risk charge" by vessels that do not conform
to state design requirements, Alaska Stat.Ann. § 30.20.010
et
seq. (Sept.1977), and California is considering comparable
legislation.
See Brief for State of California
et
al. as
Amici Curiae 3 n. 2.
[
Footnote 3/4]
No matter how small the cost in the individual case, the State's
effort here to enforce its general determinations on vessel safety
must be viewed as an "obstacle" to the attainment of Congress'
objective of providing comprehensive standards for vessel design.
See Hines v. Davidowitz, 312 U. S. 52,
312 U. S. 67.
This does not mean that the State cannot adopt any general rules
imposing tug escort requirements, but it does mean that it cannot
condition those requirements on safety determinations that are
preempted by federal law, thus "impos[ing] additional burdens not
contemplated by Congress."
De Canas v. Bica, 424 U.
S. 351,
424 U. S. 358
n. 6.
[
Footnote 3/5]
The validity of Washington's tug escort provision may be
short-lived, despite today's opinion. The Secretary is now
contemplating regulations in this area, and even the majority
concedes that they may preempt the State's regulation.
Ante at
435 U. S. 172.
While this lessens the impact of the State's regulation and the
threat it poses to the federal scheme, the legal issue is not
affected by the imminence of agency action.