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NEWS - Justices Weigh States' Right



Subject: NEWS - Justices Weigh States' Rights vs. Treaty Rules

December 8, 1999

Justices Weigh States' Rights vs. Treaty Rules

        By LINDA GREENHOUSE

              ASHINGTON -- Adding a foreign policy
              component to its exploration of federal-state
        relations, the Supreme Court heard arguments on
        Tuesday on whether states can set safety and
        environmental standards for ships entering their
        harbors that are stricter than federal regulations or
        international agreements the United States has signed.

        The justices appeared torn between
        their solicitude for state sovereignty --
        "Why shouldn't the state have
        something to say about that?" Chief Justice William H.
        Rehnquist demanded at one point with reference to
        staffing and operational requirements set by the State
        of Washington -- and their concern that states not be in
        a position to prevent the federal government from
        meetings its international obligations. 

        "Congress has made international uniformity a key
        issue," David C. Frederick, an assistant solicitor
        general arguing for the federal government, told the
        court. "It would greatly upset that uniformity if 23
        coastal states were able to pick and choose" the
        regulations they would enforce. 

        The case is a joint appeal by the federal government
        and the International Association of Independent
        Tanker Owners, an organization known as Intertanko,
        representing owners of 2,000 tankers of United States
        and foreign registry. Both are asking the justices to
        overturn a decision by the federal appeals court in San
        Francisco, which ruled last year that a series of
        regulations the State of Washington adopted in 1995
        were not pre-empted by federal law even when
        inconsistent with federal regulations and international
        standards. 

        Washington adopted its regulations after the Exxon
        Valdez oil spill in 1989, which dumped 11 million
        gallons of oil into waters off Alaska. The state and a
        coalition of environmental groups that support the
        regulations are defending them as an appropriate
        response to the concerns raised by that ecological
        disaster, tailored to the specific navigation challenges
        of Puget Sound. 

        "This case concerns Washington's authority to prevent
        oil spills," William B. Collins, the state's senior assistant
        attorney general, told the court, adding that "the whole
        system of cooperative federalism can make the waters
        safer." 

        Collins said that Congress had not expressly barred
        the states from regulating in this area. He said that
        while "it's clear that Coast Guard regulations would
        pre-empt the state if there's a conflict," the state's
        regulations, properly viewed, complemented rather
        than conflicted with the federal rules. 

        That assertion appeared difficult for the court to
        accept. The Washington regulations, for example,
        establish language proficiency requirements for some
        officers, requiring them to be able to speak English and
        also to communicate in a language understood by the
        crew. Justice Stephen G. Breyer objected that a crew
        on a given ship might speak "14 different languages,
        and I don't think any of us could meet that standard." 

        Collins replied that in the state's judgment, for safety
        purposes the officers had to be able to give orders in
        languages their crew could understand. 

        The state also requires records to be kept of alcohol
        and drug testing, to be performed on foreign as well as
        domestic ships even before the ships enter
        Washington's waters. 

        "We require the testing of both because we can't think
        of any reason that foreign crews hold their liquor
        better," Collins said. The state has a "zero tolerance"
        policy for alcohol, while Coast Guard regulations permit
        blood alcohol levels of up to 0.04 percent. Another
        Washington regulation requires three officers on deck
        under certain conditions, while Coast Guard rules
        require two. 

        Various treaties, based on the principle of reciprocity,
        assure that ships that are certified by their own "flag
        nations" as meeting international standards will be
        accepted in the waters of all countries that have signed
        the treaty. 

        The Supreme Court's pre-emption doctrines are
        technical and complex, and much of the argument in
        the case, United States v. Locke, No. 98-1701,
        consisted of a debate over which of several
        pre-emption theories was most applicable. The two
        sides also debated the continuing relevance of a 1978
        Supreme Court decision that found Washington's
        regulations for the design of oil tankers to be
        pre-empted. 

        But Jonathan Benner, arguing for the tanker owners'
        organization, tried to put the case in a broader
        historical and political perspective. The nation's
        founders "knew this industry very well," he said. "They
        knew its links to international law. They knew each
        vessel carried with it the physical projection of the
        sovereignty of another country." 

        He said the decision in this case by the United States
        Court of Appeals for the Ninth Circuit "for the first time
        in history countenanced an intrusion by a state into this
        area." 

        Although unrelated as a legal matter, the case bears
        some similarity to a case the court accepted for review
        last week, on whether a Massachusetts law limiting the
        state's commerce with Myanmar, the former Burma,
        violated the federal government's exclusive right to
        conduct foreign policy. 

        The large number of briefs filed in the case today
        underscore the range of concerns. On the one hand,
        the governments of Canada and 14 other countries,
        including Belgium, Greece and Japan, urged the court
        to overturn the appeals court's decision. "Shipping is a
        truly international enterprise" on which countries must
        be able to speak with one voice, one groups of
        countries said. 

        On the other hand, 20 states, including New York, New
        Jersey and Connecticut, told the court that the case
        raised "concerns at the heart of the states' police
        power."