Federal court hears Buzzards Bay oil spill appeal

The State of Washington wrote an amicus brief for this case.

By BECKY W. EVANS
Standard-Times staff writer
May 09, 2007 6:00 AM
BOSTON — Massachusetts has the right to enact special measures to protect Buzzards Bay and other sensitive waterways from oil spills, attorneys representing the state and a local environmental group argued yesterday before the U.S. Court of Appeals for the First Circuit.

Buzzards Bay’s shallow and narrow waters and “difficult reefs and currents” present a navigational challenge to barges that carry an estimated 2 billion gallons of oil through the bay each year, said attorney Jonathan M. Ettinger of Foley Hoag LLP, who argued on behalf of the Coalition for Buzzards Bay.

The bay’s “unique characteristics” made it necessary for the state to pass the Massachusetts Oil Spill Prevention Act in 2004 after the Bouchard Transportation Co. spill that polluted the pristine bay with up to 98,000 gallons of oil, Mr. Ettinger said.

A federal judge ruled last July that key parts of the act were unconstitutional because they covered areas of maritime law that are regulated by the Coast Guard.

The coalition and the state appealed the decision in September. Yesterday, they got to make their case before a three-judge panel, which also heard oral arguments from the shipping industry and the U.S. Department of Justice, which sued the state after then-Gov. Mitt Romney signed the act into law.

The appeal focused on three provisions of the act, including mandatory tugboat escorts, minimum watch and manning requirements for tankers and barges, and a certificate of financial backing to dock in Massachusetts.

Mr. Ettinger argued that the “state was perfectly justified” in enacting those provisions due to the bay’s peculiarities, which beg for special attention.

Pierce Gray, assistant attorney general for the state, said the provisions are a necessary supplement to Coast Guard regulations that do not address specific shipping concerns in local waterways such as Buzzards Bay.

“It is not clear that there are (federal) regulations addressing all this,” Mr. Gray said.

Attorneys for the oil industry and the federal Justice Department argued in defense of U.S. District Court Judge Joseph L. Tauro’s ruling that the provisions “are pre-empted, invalid and unconstitutional under the Supremacy Clause of the United States Constitution.”

“We think the district court’s analysis was correct,” U.S. Department of Justice Attorney Mark B. Stern said. Attorney C. Jonathan Benner of Troutman Sanders LLP, who represented the shipping industry, challenged the defendants’ position that the local peculiarities of Buzzards Bay justify the state provisions.

“This local conditions exception is not an exception,” Mr. Benner said.

The judges requested that both sides submit supplemental materials by the end of next week. No timetable was given for when a decision will be announced.

After the hearing, Mr. Ettinger said he is pleased that the court is taking a close look at the act, which is “critical for the protection of Buzzards Bay.”

He said his firm chose to represent the coalition pro bono because of the case’s broad significance.

Mark Rasmussen, executive director of the coalition, said he is happy that the “court really seemed to understand the nature of what’s at stake” in the case.

Mr. Rasmussen said he hopes the Coast Guard is “listening to all this” as it finalizes a new rule to improve navigational safety in Buzzards Bay.

“I hope it passes a stronger rule than what was published” in the March 2006 proposed rule, he said.

On April 27, 2003, a Bouchard barge drifted off course and struck a rocky ledge in Buzzards Bay, rupturing its hull. The barge leaked up to 98,000 gallons of thick No. 6 fuel oil, which polluted more than 100 miles of shoreline, killed hundreds of birds and shut down 90,000 acres of shellfish beds for months.

Bouchard paid a $10 million fine to the federal government after pleading guilty to violating the Clean Water Act and causing the deaths of at least 450 federally protected birds. The company has spent more than $40 million mopping up the spill.

Franklin Robert Hill, first mate of the tugboat Evening Tide that caused the spill, was sentenced to five months in federal prison in September 2005 after pleading guilty to the same charges.

On a clear day, Mr. Hill left unmanned the wheelhouse of the Evening Tide, which pulled the Bouchard barge with a 1,000-foot cable. The tug’s failure to maintain radio communication caused it to miss several warnings from a nearby ship that the barge was drifting off course, according to court documents.

With Mr. Hill away from the tug’s wheelhouse, the barge struck a reef about a quarter-mile outside the shipping channel. The barge continued to travel 12 miles before it stopped, leaving behind a 10-mile oil sheen.

Contact Becky W. Evans

at revans@s-t.com

~ by fredfelleman on May 9, 2007.

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