Related Pages: Navigation Issues
This page is provided as background to oil spill legislation prompted by the 2003 Bouchard oil spill. For the latest on how DEP is implementing the act and utilizing revenues, go to their Oil Spill Act Advisory Committee page.
Background to the Law
In July 2003, shortly after the Bouchard oil spill, two of the state legislators involved with the passage of the Buzzards Bay pilotage legislation in the 1990s (see our navigation issues page for background info), Eric Turkington of Falmouth, and John Quinn of Dartmouth wrote an opinion article noting that there were loopholes in past state legislation that they and other state legislators wanted to fix. Read the Turkington/Quinn Article ‘Buzzards Bay has suffered enough’. These legislators were also part of the Massachusetts Oil Spill Commission.
Coast Guard Proposed Rule Changes
The US Coast Guard already has the authority to implement many of the provisions of the Massachusetts Oil Spill Act into their coastal navigation regulations, but until August 30, 2007, had not done so.
In October 2004, the US Coast Guard proposed new required shipping lanes in Buzzards Bay for hazardous cargo (one of the recommendations of the Oil Spill Commission and in the Massachusetts Oil Spill Act). The regulations are still posted in the October 2004 Federal Register (pdf file posting). The announcement included dates and locations of public hearings. Comments submitted in response to this announcement were posted at this USCG public docket.
These regulations were not finalized, and instead the Coast Guard issued further revised regulations in 2006 (read the March 29, 2006 Federal Register). These further revised regulations attempted to better address the state’s need for tug escorts in Buzzards Bay.
These new Buzzards Bay navigation regulations were not finalized until August 30, 2007. They differ from the Massachusetts law in several respects, such as the fact in that escorts are needed only for single hull vessels under the federal regulations, whereas the state law requires escorts for both single and double hull vessels. Read the US Coast Guard press release, or the complete 2007 regulations. The new rules went into effect November 28, 2007. That same day, the Massachusetts Attorney General filed a legal challenge describing the new rules as inadequate, and that the requirements specified by the MA Oil Spill Prevention Act must be adhered to (see legal battle section below).
One of the focuses of state legislators after the 2003 Bouchard Oil Spill was need for pilot escorts for oil barges and tankers. Based on past legal decisions, it appeared that pilotage regulations were one area where states had the authority to regulate. However, it was also clear that the US Supreme court had decided that states have limited authority to regulate other areas of navigation. For example, in 2000, the US Supreme Court threw out the State of Washington’s tanker navigation regulations because it was concluded that federal law preempted the state regulations, and they felt that existing USCG regulations already comprehensively regulated oil tanker operation and navigation. This Cornell University web site posts the full US Supreme Court Locke Case Decision.
If the primary responsibility of regulating tankers rests with the Coast Guard and Congress, and not the States, have any navigational rules and regulation improvements been proposed relevant to tank barge navigation in Buzzards Bay in recent years? The answer is yes. In October 1998, the US Coast Guard First District (Boston) proposed rule making that would affect the transport of tank barges like the Bouchard No. 120. The proposed rule making, titled Regulated Navigation Area: Navigable Waters Within the First Coast Guard District addressed a wide range of issues. According to the Coast Guard,
“the proposed rule would require four sets of measure for towing vessels and tank barges operating in the waters of the Northeastern United States, including positive control for barges, enhanced communications, voyage planning, and areas of restricted navigation. These measures should reduce the risk of oil spills from the many tank barges operating in the waters of the region, and so too reduce the risk of environmental damage to the unique and extremely sensitive marine environment.”
However, after publishing the proposed rule making in October 1998, in November, the US Congress passed Coast Guard Authorization Act of 1998, which enabled the USCG Commandant to immediately implement 4 out of 8 of the recommended rules for the northeast that regulated towing vessel and tank barge safety. It was felt the other rules would require changes in the national rules. The eight rules were actually originally based on ten recommendations made Regional Risk Assessment Team (RRAT), and were conveyed in the Regional Risk Assessment of Petroleum Transportation in the Northeast Territorial Waters of the United States, issued in June 1997. Some of the meetings for this group were at the Massachusetts Maritime Academy in Buzzards Bay. The First District Commander, under authority delegated from the Commandant, adopted in December 1998 the final rule titled “Regulated Navigation Area: Navigable Waters Within the First Coast Guard District ” 1998 Federal Register vol. 63 No. 250 Pages 71764-71771. Some concerns and rule delays were requested by tank barge operators at the time.
On August 30, 2007, the Coast Guard promulgated new rules in response to the Bouchard oil spill (see box above for link and legal battle section below). These rules went into effect on November 28, 2007.
The 2004 Massachusetts Oil Spill Law
In the context of these past actions and legal decisions as described above and on our navigation issues for Buzzards Bay page, and based on recommendations of the Massachusetts Oil Spill Commission, in 2004 both the Governor of Massachusetts and the Massachusetts Legislature developed new legislation that would raise fines for oil spills, implemented new safety standards, changes navigational rules including tug escort pilotage requirements and Massachusetts Pilots licenses for Buzzards Bay, and also imposed a two cent per barrel fee to establish a $10 million dollar fund for state and local oil spill response and training. On August 3, 2004 Governor Romney signed the landmark legislation, and on August 4, the legislation was enacted into law. The fee established by the legislation was imposed on deliveries of oil to Massachusetts and would end when the oil spill account reaches $10 million dollars, which will probably take 5 to 7 years. The links below have more information about the legislation and aftereffects. DEP first began using the oil delivery fees to fund local oil spill response preparation in June 2005, then later on Cape Cod (see the New Bedford Standard Times article: Oil spill response trailer coming to town from DEP). See also DEP’s web site for a draft plan to use the oil delivery revenues at: Oil Spill Act Information.
In the week before the passage of the legislation, the Legislature added an emergency preamble to the bill, which made it immediately effective, as opposed to allowing for a typical 90-day delay before enactment. This caused some confusion among the affected industries about what documentation is needed for the new financial assurance requirements, and other provisions. To clarify the impacts of the law, DEP published in the fall of 2004 interim guidance on the new oil spill legislation. DEP subsequently published the final regulations, which were promulgated on March 25, 2005, and can be downloaded at its
314 CMR 19.00 Regulations: Oil Spill Prevention And Response web page.
Read the legislation: Chapter 251 of the Acts of 2004. AN ACT RELATIVE TO OIL SPILL PREVENTION AND RESPONSE IN BUZZARDS BAY AND OTHER HARBORS AND BAYS OF THE COMMONWEALTH.
Ongoing Legal Battles
Timeline of Legal Actions on The MA Act
- August 3, 2004: Governor signs legislatures MA Oil Spill Prevention Act into law
- January 18, 2005: the United States (later joined by international shipping companies) files a lawsuit against Massachusetts claiming that the United States has the exclusive authority to regulate oil tanker shipping
- July 24, 2006: Federal District Court rules that certain elements of Massachusetts Oil Spill Prevention Act are invalid. MA Attorney General and the Buzzards Bay Coalition appealed this decision
- June 21, 2007: First Circuit Court reverses the District Court’s decision and remand it back to the District Court with guidance.
- October 29, 2007: United States requests a preliminary and permanent injunction in federal district court
- November 16, 2007: Attorney General’s Office and the Buzzards Bay Coalition vigorously opposed the United States’ request, which is currently pending before the Court. The federal District Court has not yet scheduled a hearing on the United States’ request for a preliminary and permanent injunction. The United States has until
- February 17, 2008 is the government’s deadline to file a response to the Commonwealth’s counterclaim. In the interim, the new federal rule and the existing state law will remain in effect.
- August 11, 2008: Governor signs law amending the Oil Spill Act creating a workaround solution to the federal ruling. The new law has the state providing escort tugs for double hull vessels at its expense, funding the service with an increase of oil delivery fees from 2 cents to 5 cents a barrel.
After passage of the legislation, the Coast Guard and the US Attorney General’s office questioned the ability of the state of Massachusetts to regulate interstate shipping and impose a pilotage requirement for Buzzards Bay and they filed suit in federal court. In July 2006, a federal judge ruled that major portions of the law (including pilotage requirements) were unconstitutional (read this newspaper article SouthCoastToday.com: Judge Guts Oil Spill Act . After this decision, the state DEP stopped attempting enforce this pilotage provision or to issue fines for non-compliance. The state continued to collect the per barrel oil delivery fee, which was not affected by the ruling.
Both the Massachusetts Attorney General and the Buzzards Bay Coalition appealed the judge’s decision in September 2006 (read this newspaper article SouthCoastToday.com: State appeals to save oil spill act .
In June 2007, in response to the state’s and Coalition’s appeal, a federal appeals court overturned the lower court’s ruling and sent it back to U.S. District Court for a new hearing on the evidence (read this newspaper Article SouthCoastToday.com: Appeals court revives state’s oil spill act. In August 2007 the Massachusetts Attorney General State again ordered tug escorts for oil transport in Buzzards Bay (read this newspaper Article SouthCoastToday.com: AG to oil shippers: Use tugboat escorts crossing Buzzards Bay.
However, on August 30, 2007, the US Coast Guard announced it would issue its own navigation rules for Buzzards Bay effective November 28, 2007 (read this New Bedford Standard Times South Coast Today article: New Coast Guard rule supersedes state oil spill law (see also the links in the callout box above). The Coast Guard rules differ from the state law in a number of areas, including the fact that they require tug escorts only for single hulled vessels (whereas the state law requires escorts for double hulled vessels as well).
When the rules were issued in a public notice in August 2007, area legislators, and environmental advocacy groups like the Buzzards Bay Coalition, and local officials made it clear they did not believe the new rules go far enough, and that the new Coast Guard rules should mirror the state’s 2004 law. In September 2006, The Coalition for Buzzards bay urged the state legislature to pass new legislation in response to the to the Coast Guard’s anticipated November 2007 rules. (Coalition revives oil spill bill) On November 6, the Massachusetts Senate unanimously passed a bill seeking to adopt a new law requiring tug escorts and pilotage for the (read Standard Times article: New Buzzards Bay oil spill law advances. Meanwhile, on November 28, the Massachusetts Attorney General filed a new legal challenge to the new Coast Guard rules. In a nutshell, the federal government has filed suit against Massachusetts saying state law cannot regulate shipping in Buzzards Bay, and the state has file suit against the federal government saying they do have that right to regulate shipping in inland waters, there is legal precedent to do so, and that the federal rules are inadequate and should match the state law.
In the summer of 2008, in an effort to skirt the federal-state legal battle, the Massachusetts legislature passed a law (AN ACT FURTHER PROTECTING BUZZARDS BAY, signed by the Governor on August 3, 2008) that had the state providing escort services for double hull vessels at its expense, funding the service with an increase of oil delivery fees from 2 cents to 5 cents a barrel.
New Bedford Standard Times Article: Governor signs oil spill bill