Federal Law Trumps Mass. Oil Spill Law, Judge Rules

A federal judge has thrown out key provisions of a 2004 Massachusetts law aimed at preventing oil spills, ruling that the statute is pre-empted by federal law and therefore unconstitutional.

The Legislature passed the Oil Spill Prevention Act after a Bouchard Transportation Co. barge struck a rocky ledge at the mouth of Buzzards Bay, spilling 98,000 gallons of oil, polluting more than 90 miles of shoreline and closing nearly 100,000 acres of acres of shellfish beds.

The law created a series of rules and regulations governing vessels transporting oil in Massachusetts waters, including requiring vessel owners to hire a Massachusetts-licensed navigational guide and to implement alcohol and drug-testing policies. The law also mandated tugboat escorts for vessels traveling in certain waters.

The federal government, along with barge operators, challenged the law, arguing that federal law already mandated regulations for oil tankers.

U.S. District Judge Joseph Tauro agreed, saying those portions of the law are pre-empted by federal laws, including the Port and Waterways Safety Act of 1972 and the Port and Tanker Safety Act of 1978.

Tauro said the challenged provisions of the state law are “pre-empted, invalid and unconstitutional.” His ruling bars the state from enforcing seven provisions of the law.

Supporters of the law said they were angered by the ruling.

“We felt criminally abused by the initial oil spill and now we feel abused twice,” said state Sen. Mark Montigny, D-New Bedford, one of the lead sponsors of the law.

“We have no faith that the Coast Guard will enforce regulations adequate to prevent serious abuse of Buzzards Bay by corporate polluters,” he said.

Attorney General Tom Reilly, whose office defended the law, said he would review the ruling and decide what other legal action his office may take.

“I am proud of Massachusetts’ efforts to protect our precious coastline and our coastal communities. We were forced to pass a new state law in part because the Coast Guard had failed to adopt its own adequate safeguards,” Reilly said in a statement.

“We’re pleased with the court’s ruling,” said Charles Miller, a spokesman for the Justice Department.

The Coast Guard is aware of the criticism from state officials and is working with state and local governments to toughen regulations regarding Buzzards Bay, Lt. Cmdr. Benjamin Benson said.

“This suit was necessary to uphold the regulatory framework that Congress gave the Coast Guard to implement,” Rear Adm. Timothy Sullivan, the Coast Guard’s district commander in Boston, said in a statement.

Tom Allegretti, president and chief executive of American Waterways Operators, an industry group representing tugboat and barge operators, was “gratified” by the ruling. “For each portion of the Massachusetts state statute struck down in this case, there is a federal statute or regulation already in place,” he said.

The law established a trust fund that receives two cents for every barrel of industrial oil shipped into Massachusetts. That portion of the law was not challenged, so it remains in place, said Mark Rasmussen, executive director of the Coalition for Buzzards Bay, one of the sponsors of the state law.

Rasmussen said environmental groups are disappointed by the ruling because it strips them of safeguards and protections added by the law.

“It sort of puts us back in the dark ages of oil spill prevention in Buzzards Bay,” Rasmussen said. “There’s nothing to say we are not just as much at risk as we were the day the last spill happened.”

Bouchard, based in Melville, N.Y., paid a $9 million fine after the 2003 spill.

The seven provisions of the law struck down by Tauro’s ruling were:

A prohibition of vessels with certain design characteristics from docking, loading or unloading in Massachusetts waters.

The establishment of manning and navigation watch requirements for towing vessels and tank barges.

A requirement that vessels carrying oil in certain waters employ a Massachusetts-licensed navigational guide.

A requirement that tank vessel owners implement alcohol and drug-testing policies, and equip their vessels to conduct such testing.

A mandate for tugboat escorts for tank vessels traveling in certain waters.

A requirement that tank vessels follow mandatory vessel routes through Massachusetts waters.

A requirement that any vessel carrying oil in Massachusetts waters presents a certificate of financial assurance to the state Department of Environmental Protection.