First Circuit Reinstates Oil Spill Prevention Measures for Buzzards Bay
The U.S. Court of Appeals for the First Circuit accepted AG Coakley's claim that the U.S. Coast Guard violated the National Environmental Policy Act (NEPA) when the agency issued federal regulations designed to invalidate key provisions of the Massachusetts Oil Spill Prevention Act of 2004 (OSPA). In its ruling, the court found that the Coast Guard failed to conduct any analysis of the environmental consequences of its regulations. The First Circuit's decision will allow the Massachusetts Department of Environmental Protection (MassDEP) to enforce OSPA's requirements for tugboat escorts and the number of personnel on board the barges and their towing vessels.
"We are pleased that the U.S. Court of Appeals agreed with our position that the Coast Guard failed to live up to its legal obligations under the National Environmental Policy Act," said AG Coakley. "We hope that the U.S. Coast Guard will now seriously reconsider its position and, if it decides to move forward with new regulations, adopt ones that will provide Buzzards Bay with the protection that such a vital natural resource deserves."
There are two provisions of OSPA at issue in the case decided earlier this week. The first provision requires tugboat escorts to accompany all tank barges - both single and double-hulled - transporting 6,000 or more barrels of oil through Buzzards Bay. The second provision requires additional crew and lookout personnel on vessels towing single-hulled tank barges.
"This ruling presents the Commonwealth with an opportunity to re-engage with the Coast Guard to develop and implement a comprehensive program to protect Buzzards Bay from future oil spills," said MassDEP Commissioner Kenneth Kimmell. "MassDEP looks forward to working with the Coast Guard to develop a regulatory program that ensures that single- and double-hulled vessels traveling through Buzzards Bay do not pose an environmental threat to the valuable and historic natural resources within and throughout Buzzards Bay."
In late 2007 and early 2008, the Attorney General's Office filed challenges in the U.S. District Court to Coast Guard regulations that sought to invalidate important provisions of OSPA. The Coast Guard's 2007 regulations require tugboat escorts and a federally licensed pilot for single hulled vessels only, and declare that the new federal regulations preempt OSPA's tugboat escort requirement for both single and double-hulled oil barges and manning requirements for single-hulled oil barges. The Attorney General alleged that, among other things, the Coast Guard violated NEPA by failing to consider potential environmental consequences of eliminating tugboat escorts for double-hulled oil tank barges transporting massive amounts of oil through Buzzards Bay. Since federal law requires the complete phase out of single-hulled tank barges by 2015, the Coast Guard's regulations would have left all tank barges carrying oil through Buzzards Bay un-escorted by a tugboat. Tugboat escorts provide an important safety net for oil barges by being able to warn barges about potential navigational risks and being able to provide immediate assistance to the oil tank barge and its towing vessel if they encounter a navigational or mechanical problem in Buzzards Bay.
On March 31, 2010, the District Court upheld the Coast Guard's regulations, even though it found that the Coast Guard had not analyzed the potential environmental consequences of those decisions, as required by federal law.
The Massachusetts Legislature enacted OSPA in the wake of the April 2003 spill of approximately 98,000 gallons of oil into Buzzards Bay, believing that federal regulations were inadequate to protect Massachusetts' sensitive natural resources. As a result of the First Circuit's ruling, the Coast Guard will have to reconsider its regulations for Buzzards Bay and MassDEP will again be allowed to enforce the Commonwealth's manning and tugboat escort requirements.
The appeal was argued by Assistant Attorney General Seth Schofield of Attorney General Coakley's Environmental Protection Division, with whom Assistant Attorney General Pierce O. Cray of Attorney General Coakley's Administrative Law Division was on the briefs. Christine Ayers of MassDEP's Office of General Counsel is handling the matter for MassDEP, along with assistance from Richard Packard in MassDEP's Oil Spill Prevention and Response Program.