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U.S. Supreme Court unanimously holds that Washington state laws designed to reduce risk of oil spills in Puget Sound region invaded several fields occupied by federal legislation and regulations related to international maritime conventions
The State of Washington includes some of the Nation’s most significant waters and coastal regions. Its seacoast largely consists of “wave-exposed rocky headlands separated by stretches of beach.” The inland sea of Puget Sound constitutes 2,500 square miles of inlets, bays and channels supporting fisheries as well as plant and animal life of great value to the Nation and to the world.
The Strait of Juan de Fuca divides Washington from the Canadian Province of British Columbia and provides access from the high seas not only to the U.S. ports of Seattle and Tacoma but also to the Canadian port of Vancouver. The international boundary runs down the center of the Strait. Pursuant to the Agreement for a Cooperative Vessel Traffic Management System for the Juan de Fuca Region [32 U.S.T. 377, T.I.A.S. No. 9706], all inbound ocean commerce sails through Washington’s waters while the outbound ships use Canadian territorial waters. U.S. flag ocean-going tankers from Alaska’s North Slope reserve and foreign-flag tankers, e.g., from Venezuela and Indonesia, bring large quantities of crude oil to refineries adjacent to Puget Sound.
During World War II, tankers averaged about 16,000 tons but by the mid 1970s, 366 tankers on the world’s oceans exceeded 175,000 tons. Between 1955 and 1998, the number of tankers afloat went up from 2,500 to 6,739. The vast amounts of oil carried by these (sometimes underpowered) vessels with only a few inches of metal separating the oil from the sea create serious pollution risks to Washington waters.
In 1967, the supertanker “Torrey Canyon” had spread crude oil along the coast of England. This sparked Congress to enact the Port and Waterways Safety Act of 1972 (PWSA). Similarly, the State of Washington passed stricter regulations for tankers and afforded a wider range of remedies in the case of an oil spill. After the “Exxon Valdez” ran aground in Alaska and brought about the largest oil spill in U.S. history (about 11,000,000 gallons), both Congress and Washington state took further regulatory actions. At the federal level, there was the Oil Pollution Act of 1990 (OPA). Washington state set up a new agency charged with coming up with standards to furnish the “best achievable protection” (BAP) from oil spill damages.
The International Association of Independent Tanker Owners (Intertanko) is a trade association of 305 tanker operators whose ships carry about 60% of the oil imported into the United States. It brought suit in federal court seeking declaratory and injunctive relief against Washington state and local officials responsible for carrying out the BAP regulations. The district court upheld the state regulations, spurning Intertanko’s contentions that the BAP norms trespassed on regions long pre-empted by the Federal Government.
Before the U.S. Court of Appeals for the Ninth Circuit, the United States intervened on Intertanko’s side and urged that the district court had erred in undervaluing the substantial foreign affairs interests of the Federal Government. For the most part, however, the Ninth Circuit upheld the district court [see 148 F.3d 1053]. The U.S. Supreme Court granted certiorari and unanimously reverses and remands the dispute for further consideration by the lower courts.
In support of its pre-emption arguments, the United States cited the web of international treaties and maritime agreements that deal with the licensing, manning and operation of vessels. For example, the U.S. is party to the International Convention for the Safety of Life at Sea, 1974 [32 U.S.T. 47, T.I.A.S. No. 9700], the International Convention for [the] Prevention of Pollution from Ships, 1973 [12 U.S.T. 2989; T.I.A.S. No. 4900], and the International Convention of [sic] Standards of Training, Certification and Watchkeeping for Seafarers, With Annex, 1978 (STCW), Sen. Treaty Doc. No. 96 1, C.T.I.A. No. 7624. The United States also represented that these agreements work on the principle of reciprocity or mutual certification of compliance with the conventions.
“The United States argues that these treaties, as the supreme law of the land, have pre emptive force over the state regulations in question here. We need not reach that issue at this stage of the case because the state regulations we address in detail below are pre empted by federal statute and regulations. The existence of the treaties and agreements on standards of shipping is of relevance, of course, for these agreements give force to the longstanding rule that the enactment of a uniform federal scheme displaces state law, and the treaties indicate Congress will have demanded national uniformity regarding maritime commerce.” [1145]
The Court’s opinion next stresses the historic federal interest in maritime matters going back to the dawn of the Republic and the need for the nation to speak with one voice in international affairs. It then provides several illustrations of the field pre-emption rule that surrounds PWSA Title II and 46 U.S.C. Section 3703(a).
First, imposing a series of training requirements on a tanker’s crew goes beyond matters unique to Washington waters into the domain of the staffing, operation and manning of a tanker outside of those waters. Section 3703(a) pre-empts Washington’s training and drill requirements since they have to do with “operation” and “personnel qualifications.”
Secondly, requiring a tanker’s crew to be fluent in the English language is not merely a regional traffic matter or a local peculiarity. Not only Section 3703(a) but also 33 U.S.C. Section 1228(a)(7) occupies the field here. The latter, for example, merely demands that any vessel operating in U.S. waters have at least one licensed deck officer on the navigation bridge who can clearly understand English.
Moreover, in requiring that the navigation watch amount to at least two licensed deck officers, a helmsman and a lookout, the Washington rules are trying to regulate the “operation” and “manning” of a tanker — areas already covered by Section 3703(a). Finally, when the state rules demand that ships in Washington waters report on certain marine casualties world-wide they run afoul of U.S. Coast Guard regulations in the same area. Pursuant to 46 U.S.C. Sections 6101, 3717(a)(4), Congress had in mind that these alone would define a vessel’s reporting duties.
Citation: United States v. Locke, 120 S.Ct. 1135 (2000).
Filed in: 2000 International Law Update, Issue 4
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French Conseil d’Etat upholds ban on pesticide containing imidaproclid pending determination whether, when applied to sunflower seeds, it kills honey bees that feed on mature sunflowers
On January 22, 1999, the French Ministry of Agriculture put out a ban on the use of Bayer’s “Gaucho” pesticide wherever sunflowers grew. Bee farmers had complained to the government that the rampant use of Gaucho on sunflower crops had caused a serious reduction in the size of honeybee swarms.
Supporting the bee raisers, environmentalists pointed out that bees died after feeding on sunflowers whose seeds the growers had treated with Gaucho. Imidaproclid is the controversial active ingredient not only in Gaucho but also in other crop control products marketed worldwide, such as “Admire” and “Provado.” The Ministry’s ban was to gain time to scientifically determine the actual effect of the chemical on French honey bees.
Several large agro-industrial producers of sunflower seeds such as Societe Force Limagrain S.A., Monsanto and Novartis joined Bayer in challenging the ban in court. Eventually they ended up in the Conseil d’Etat, the highest tribunal in matters involving French governmental and administrative actions.
The parties contended that the Ministry had exceeded its powers by banning not only the product but also the treated seeds. They also claimed that some unidentified virus or bacteria must have harmed the bees, not Gaucho. Bayer also argued that Gaucho’s innovation was its direct application to the seeds. This safeguarded the plant from feeding insects while cutting down on the needed dosage and hence on the contamination of soil and water tables.
They failed, however, to convince the Conseil d’Etat. It upholds the Ministry’s action as according with the public interest on the principle that “precaution must prevail in matters of environmental protection.”
Citation: Conseil d’Etat Decision No. 206687, 2007303, December 29, 1999, as reported in Daily Environmental Report (BNA), Vol. 23, No. 3, February 2, 2000.
Filed in: 2000 International Law Update, Issue 4
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U.S. and seven other nations conclude Multilateral Dolphin Protection Agreement
On May 21, 1998, the U.S., Colombia, Costa Rica, Ecuador, Mexico, Nicaragua, Panama and Venezuela signed a Multilateral Dolphin Protection Agreement in Washington, D.C. U.S. Secretary of State Madeleine K. Albright signed the Agreement on behalf of the U.S.
The Agreement resulted from the negotiations of the Inter-American Tropical Tuna Commission. Its purpose is to protect dolphins during tuna fishing operations. The Agreement provides a basis for the U.S. to remove its tuna-trade embargoes from nations that become parties to the Agreement. It will enter into force after ratification by four countries.
The Agreement is also open to signature by Belize, Chile, El Salvador, the EU, France, Guatemala, Honduras, Japan, Peru, Spain, and Vanuatu.
Citation: U.S. Department of State Press State¬ment (May 21, 1998).
Filed in: 1998 International Law Update, Issue 6
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European Union publishes directive regulating “biocidal” products that will affect many products used in households and industry
After several years of preparation, the EU has finally published the directive on biocidal products, Directive 98/8/EC [Biocides Directive]. The Directive will regulate all products that control “any harmful organism.” It will therefore apply to products including disinfectants, non-agricultural pesticides, and preservatives.
The Directive contains a list of regulated product types such as “Human hygiene biocidal products” and “In-can preservatives” used to extend a product’s shelf life (Annex VI). Because of the broad definition of affected products and substances, the Directive will affect tens of thousands of products on the EU market.
All “biocidal” products must be registered in an EU Member States, and properly classified, packaged and labelled. Advertisements must state “Use biocides safely. Always read the label and product information before use,” and may not use words such as “non-toxic,” or “harmless.”
The Directive has substantial technical requirements and explanations which will be refined in the future. For example, no substances are yet listed in Annexes I (List of active substances), IA (Low-risk list of active substances) and IB (Basic substances). The Annexes also outline the required toxicological tests and other technical reviews necessary for registration of a biocidal product.
The Member States must implement the Directive into national law within 24 months of the effective date of the Directive, that is, by May 2000. A ten-year transitional period during which Member States may continue to permit the distribution of biocidal products under their national rules will facilitate the industry’s compliance with the new regulatory requirements.
The Directive will complicate the regulatory requirements for chemical products, because most of those products were previously unregulated, or regulated as “chemical substances” under EC Directive 67/548/EEC [dangerous substances]. Many products must again be tested and registered with Member State authorities. In the U.S., many of such products are regulated as pesticides under FIFRA.
Citation: Directive 98/8/EC … concerning the placing of biocidal products on the market, 1998 O.J. of the European Communities (L 123) 1, 24 April 1998. [See 1997 Int'l Law Update 115].
Filed in: 1998 International Law Update, Issue 5
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Ninety-five nations draft agreement to require “prior informed consent” before states that make dangerous chemicals and pesticides export them to developing countries
Representatives from the U.S. and 94 other countries have reached an agreement through the U.N. Food and Agriculture Organization (FAO) and the U.S. Environment Program (UNEP) to control the export of dangerous chemicals by requiring a developing country to give “prior informed consent” (PIC). The purpose is to tighten international control of trade in dangerous pesticides such as DDT and Aldrin. The FAO and UNEP had already set up a voluntary PIC system that required the express agreement of a developing country before such restricted chemicals could be taken there. The new Convention will replace the voluntary PIC system.
Under the Convention, exporting countries must inform importing countries about their impending exports of severely restricted chemicals. The exporting state must not only furnish this notification before the first export, but also has to repeat the notice for the first export each year. Signatory countries will also undertake to transpose the Convention into national law and to create domestic enforcement mechanisms. The International Court of Justice is to decide disputes over compliance with the Convention.
The Manufacturing countries severely restrict the chemicals concerned in the Convention but developing countries often lack the resources to control their distribution and use. The initial agreement includes 27 chemicals (22 pesticides and 5 industrial chemicals). They include Aldrin, Chlordane, DDT, HCH, Crocidolite, PBB, PCB, and PCT.
The Convention will be open for signature at a diplomatic conference in Rotterdam in September of this year.
Citation: UNEP News Release 1998/11 (16 March 1998); U.S. Department of State Press Statement (March 18, 1998). [For more informa¬tion, contact Mr. Michael Williams, UNEP, Geneva, Phone: (41-22) 979-9242/44, FAX: (41-22) 797-3464, E-mail: mwilliams@unep¬.ch].
Filed in: 1998 International Law Update, Issue 4
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U.S. State Department issues rules for determining comparability of foreign and U.S. programs for turtle protection in the course of trawling for shrimp
The U.S. Department of State has issued guidelines for determining whether foreign countries have programs for turtle protection in shrimp trawl fishing that are comparable to the U.S. Program. The following species of sea turtles are protected: green, hawksbill, Kemp’s ridley, leatherback, and loggerhead.
Under Section 609 of the Endangered Species Act amendment (Pub.Law 101-162), no one may import shrimp harvested with technology that may adversely affect protected sea turtles unless there is an annual certification to Congress (1) that the foreign country has a regulatory program and an incidental take rate that is similar to that of the U.S., or (2) that the foreign country does not pose a threat of incidental taking of sea turtles.
The State Department has revised the previous guidelines in accordance with an order of the U.S. Court of International Trade in the case of Earth Island Institute v. Christopher, 913 F.Supp. 559 (Ct. Int’l. Trade 1995). In that case, the Court held that Section 609 applies to wild shrimp harvested in all foreign countries, not just in the wider Caribbean region. On April 10, the Court refused to grant a stay. Therefore, the government has until May 1 to bar the importation of wild shrimp from countries that are not adequately protecting sea turtles.
Starting May 1, an exporter must accompany the exports of shrimp with an attestation that fisherman harvested the shrimp under conditions that did not adversely affect sea turtles, or in waters of a country that has a “comparable” program. On the other hand, the Section 609 import prohibitions will not apply to shrimp or shrimp products that are harvested (1) in aquaculture facilities, (2) with fishing equipment that would not require “turtle excluder devices” (TEDs) under the U.S. program, or (3) in areas where there are no sea turtles.
Citation: 61 Federal Register 17342 (April 19, 1996).
Filed in: 1996 International Law Update, Issue 5
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U.S. Environmental Protection Agency publishes final rule listing substances that are subject to Basel Convention on transboundary movements of hazardous wastes
The Basel Convention on the transboundary movements of hazardous wastes and other waste [28 I.L.M. 657 (1989)] seeks to restrict uncontrolled transfers and dumping of hazardous materials. The Convention established procedures for controlling imports, exports and transit of such wastes. It itemizes the various types of waste in red, amber and green lists.
The U.S. Environmental Protection Agency has published a final rule that, under the Resource Conservation and Recovery Act (RCRA), identifies the wastes that are subject to the Basel Convention. This rule will apply only to U.S. exporters and importers of RCRA hazardous wastes destined for “recovery” in OECD countries (except Canada and Mexico, where bilateral agreements and regulations govern waste transfer).
The new rule enters into force on July 11, 1996.
Citation: 61 Federal Register 16290 (April 12, 1996). [Additional material is available on the internet: http://www.epa.gov].
Filed in: 1996 International Law Update, Issue 5
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Note on the ability of EU member states to have environmental requirements that are stricter than EU requirements
Environmental restrictions in EU Member States that differ from EU requirements affect U.S. exporters whose products must comply to be distributed freely. Under Articles 100a(4) and 130t of the EC Treaty, the EU Member States may have “more stringent” environmental requirements that are compatible with the Treaty. The scope of this provision is far from clear, but recently the EU’s position has been clarified in two decisions regarding the hazardous chemical substance Pentachlorophenol (PCP). PCP is a common industrial chemical substance used in the leather industry, wood preservation, textile treatment, as well as the pulp and paper industry.
The basic EC directive on PCP (Directive 91/173/EEC) generally prohibits the marketing and use of PCP and its salts and esters in a concentration equal to or greater than 0.1% by mass in substances and preparations. Compared to the Directive, the German permissible limit value is so low that it virtually prohibits the use of PCP. The Commission had endorsed the German restriction in 1992, but the European Court of Justice annulled that endorsement for the Commission’s failure to provide a statement of reasons.
In December 1996, the Commission issued a reasoned opinion that it does not consider the German restriction a trade barrier. In March 1996, the Commission issued a similar decision regarding Denmark. The EC Commission accepted the Danish justification that such restrictions are necessary to protect human health, especially in light of present PCP pollution in Denmark.
Citation: Commission Decision of 14 September 1994 concerning the prohibition of PCP notified by the Federal Republic of Germany, 1994 Official Journal of the European Communities (O.J.) (L 316) 43, 9 December 1994; Commission Decision of 26 February 1996 concerning the prohibition of pentachlorophenol (PCP) notified by Denmark, 1996 O.J. (L 68) 32, 19 March 1996 [The European Union adopts (a) directives, which the member states must enact into national law before they become effective, (b) regulations, which are directly applicable in all member states, and (c) decisions, which are directly applicable to the persons to whom they are addressed, including member states, legal persons, and individuals - The Editors].
Filed in: 1996 International Law Update, Issue 5
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United States and Mexico agree to work together on exchanging data needed to support biological resources
The U.S. Department of the Interior has signed an agreement with Mexico’s Secretariat of Environment, Natural Resources and Fisheries (SEMARNAP) to pursue scientific and technical cooperation in developing, analyzing, and communicating data and information needed to support biological resources. Effective May 16, 1995, and indefinite in duration, the collaboration may consist of exchanges of technical information, visits of professional specialists, cooperative research, training activities, and fora such as seminars, workshops, and conferences. Other matters dealt with include funding, personnel, and intellectual property rights. The agreement does not involve the exchange of classified material in the absence of joint consultation between the two governments as to security measures.
Citation: State Dept. No. 95 99; KAV No. 4224.
Filed in: 1995 International Law Update, Issue 3
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EC and Canada to agree on fishing quotas to resolve recent shooting dispute in North Atlantic
The EC Commission published a proposal for an agreement with Canada on fisheries in the North Atlantic. A dispute between the EC and Canada developed in March of this year when Canada seized the Spanish fishing boat “Estai” in international waters just outside the 200-mile zone near Newfoundland. The Canadian navy fired warning shots at Spanish vessels, and the Spanish dispatched its navy vessels for the protection of its fishing fleet.
The dispute began on February 1, when the North Atlantic Fisheries Organization (NAFO), which sets voluntary quotas for member states in international waters, granted Canada a 1995 quota for turbot (Greenland halibut) of 16,300 metric tons, while granting the EC only 3,200 tons. Canada justified its stance as aiming to preserve the turbot in the overfished waters. The EC nevertheless intended to catch up to 19,000 tons.
The Commission has come up with a proposal for an agreement to resolve the conflict, which may very well become a model for preserving common resources. The agreement applies provisionally until December 31, 1995, or until adopted by NAFO, if that is earlier. The agreement provides that the EC and Canada propose to the NAFO Fisheries Commission specific measures to improve fisheries control and enforcement. These include tonnage limits for catches of turbot, satellite tracking of fishing vessels and reports to NAFO of turbot catches at least every 48 hours.
Citation: Proposal for a Council Decision on the conclusion of the Agreement on fisheries in the form of an agreed minute, an exchange of letters, an exchange of notes and the annexes thereto, between the European Community and the Government of Canada, 1995 Official Journal (C 239) 8, September 14, 1995.
Filed in: 1995 International Law Update, Issue 1