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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."