Michigan Oil Spill Preemption?

4 Aug 2010

US Supreme Court

All across Michigan, the Newspapers and bloggers are asking, why didn’t the State do more to prevent the Marshall spill. As I posted previously, this pipeline was and is governed by the US Department of Transportation regulations. There are a number of relevant statutes, the Pipeline Safety Improvement Act of 2002, 49 U.S.C. § 60101 et seq. and the Oil Pollution Act of 1990 (OPA), 33 U.S.C. § 2701 et seq., being two of the most prominent.  The key question comes down to, “Is State regulation preempted?”  Preemption is a legal concept that bars a lower jurisdiction from regulating when a higher jurisdiction has already regulated.  This is intended to promote national standards and avoid cross-boundary conflicts.

The Supremacy Clause of Article VI of the US Constitution grants Congress the power to preempt state or local law. Under this doctrine, a federal law can displace state law through express preemption, field preemption, or conflict preemption. Express preemption exists where Congress enacts an explicit statutory demand that state law be displaced. Field preemption occurs when federal regulation is so comprehensive to conclude that Congress left no room for supplementary state regulation, even if it didn’t expressly say so. Conflict preemption is when compliance with both federal and state regulation is impossible or where state law is deemed an obstacle to achieving and executing Congress’ objectives – something of a flexible standard.

For interstate pipelines, state and local authorities are statutorily barred from adopting or continuing in force safety standards.  49 U.S.C. §60104.  There are two exceptions to this prohibition. First, a state authority may enter into a pipeline safety agreement with the DOT, through which the DOT authorizes the state authority to participate in the oversight of interstate pipeline facilities.  Second, the DOT may designate an agent with delegated authority to conduct inspections of pipeline operators and facilities to ensure compliance with federal safety standards on behalf of the DOT.

The OPA has an explicit savings clause that should preserve private state law claims, such as personal injury or property damage claims, but it appears that without approval, the State simply cannot regulate interstate oil pipelines like the interstate Enbridge line that leaked almost 1,000,000 gallons into the Kalamazoo River.  The federal government has certified Michigan to  regulate, inspect, and enforce intrastate gas pipeline safety requirements. This work is performed by the Gas Safety Office of the Michigan Public Service Commission.

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