                                                                           June 10, 1977


77-36       MEMORANDUM OPINION FOR THE
            ACTING GENERAL COUNSEL, FEDERAL
            ENERGY ADMINISTRATION
            State Jurisdiction to Regulate Pollutant Emissions


   This is in reply to your letter concerning the proposed oil tanker
terminal that a major oil company seeks to operate at Long Beach,
Calif. A major question that has arisen in a California Air Resources
Board administrative proceeding, is whether the State would have
“jurisdiction and authority to regulate pollutant emissions from oil
tankers using the proposed terminal, while such tankers are operating
beyond the 3-mile territorial limit of the State but are . . . within the
South Coast Air Basin . . . [that is, within an area extending up to 12
miles from shore].”
1. Introduction and Summary
   Preliminarily, it is necessary to distinguish between (1) the general
question of the extent of California’s authority or jurisdiction over
tankers using the proposed terminal, and (2) the question of the validity
of particular emission-control requirements which the State might seek
to impose. We shall consider the former, but not the latter.1 Our views
may be summarized as follows: Regarding operations in the contiguous
zone (i . e the area extending up to 12 miles from the shore) of Ships
using the proposed terminal, California would have some authority to
prescribe and enforce air pollution controls. However, the State’s au­
thority would not be unlimited. The validity of a particular requirement
or enforcement action would depend upon several factors. One require­
ment is that there be a sufficient connection between the regulated
activity and air quality within the State’s geographic limits. Other
pertinent factors include feasibility and practical consequences (e.g.,
cost), the relationship to Federal standards (e.g., safety standards pro­
mulgated by the Coast Guard), and, in particular, action taken by the

  1 O ur discussion does touch upon certain o f the conditions proposed by the oil com pa­
ny, but w e do not attem pt to assess their validity. Issues concerning the various means o f
enforcing the pollution-control requirem ents are also significant, but w e do not discuss
them.

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U.S. Environmental Protection Agency (EPA) regarding the proposed
terminal.
 2. Factual Background
    The main purpose of the proposed terminal would be to accommo­
 date tankers transporting crude oil from the North Slope of Alaska.
 T he bulk of the oil received at the terminal would then be sent, via
 pipeline systems, to refineries in the Midwest and on the G ulf Coast.
    The Los Angeles-Long Beach area, where the terminal would be
 built, has severe air pollution problems. Before the project can proceed,
 it must be approved by State environmental authorities and by EPA.
    Now pending before the California Air Resources Board is the oil
 company’s request for a construction permit. This proceeding is based
 upon State law. To date, EPA has not approved California’s proce­
dures for review, under the Clean Air Act, of new stationary sources of
emissions. Such approval may be granted in the future, but, if it is not,
the oil company’s ability to go forward will depend upon issuance of a
permit by E PA ,2 as well as a State permit. Issuance of a permit by
E PA will not occur until after issuance of a permit by the State; it is
possible that the terms and conditions of the EPA permit would simply
follow those of the State permit.
    In connection with the proceeding before the State agency, the oil
company has proposed a set of conditions to deal with the problem of
air pollution from the tankers. Some o f the conditions pertain to vessel
design or equipment, e.g., ballast capacity (§ 1) and inert gas systems
(§ 4). Others relate solely to tanker operations occurring within the
port, e.g., unloading procedures (§§ 3, 6). A third category consists of
conditions which apply to operations occurring not only within the 3-
mile limit but also within an area extending as much as 12 miles from
the coast, e.g., ballasting operations (§ 1), prohibition on expulsion of
hydrocarbon vapors (§ 2), and use of low sulfur fuel (§ 7).
   The California authorities are reluctant to agree to the permit condi­
tions proposed by the oil company unless the State is assured that it
would have authority to enforce them with respect to activities beyond
the 3-mile limit. Presumably, the State’s concern relates only to the
third category o f conditions. The terminal will be within the territory
of California so the extraterritorial issue is not raised by the rules
concerning unloading or other activities at the terminal itself. In addi­
tion, to the extent that the rules involve vessel characteristics or equip­
ment (as opposed to operations), the extraterritorial question appears to
be irrelevant.
3. Discussion
   There are several types of conditions that may raise certain legal
questions. For example, one of the conditions would require that the

  ’ F o r the E P A regulation concerning the granting o f such perm its in California, see 40
C F R 52.233.

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tankers have ballast capacity of a certain type (§ 1); another would
require the vessels to have an inert gas system or comparable equip­
ment (§ 4). Each of these matters is now addressed in Coast Guard
regulations.3 Clearly, the issues of preemption and burdens on com ­
merce apply generally to the proposed conditions.
   Another point that should be mentioned is that pertinent laws are in
a process of change. Amendments to the Clean Air Act are now being
considered in Congress.4
   In March, President Carter sent to Congress a message concerning
oil pollution of the oceans. 13 Weekly Compilation of Presidential
Documents 408 (1977). He pointed out that he had directed the Secre­
tary of Transportation to develop new regulations concerning oil tanker
standards, including the matters of segregated ballast and inert gas
systems. Proposed rules to this effect have been published in the Feder­
al Register.5
   Another pertinent bill, S. 682, the Tanker and Vessel Safety Act, was
recently passed by the Senate. See 123 Cong. Rec. S. 8823 (daily ed.,
May 27, 1977). The bill deals, in part, with design and operating
standards for all tankers entering U.S. ports. Probable jurisdiction was
noted in R ay v. Atlantic Richfield Co., 95 S. Ct. 1172 (1977), a case
now pending before the Supreme Court, which involves the preemptive
effect of the Ports and Waterways Safety Act. Relevant changes in
international law may result from the Law of the Sea Conference.
   The developments mentioned above are pertinent because their out­
come may affect California’s authority to regulate tanker operations.
   The subjects we have addressed are solely issues of Federal law. We
did not look into questions of California law, e.g., the extent o f the
authority of the State regulatory bodies, or into the possible signifi­
cance of contract or real estate law (Le., reliance on conditions set forth
by the Port of Long Beach in its lease with the company, in addition to
use of the State’s police power).
   Although we did not give separate attention to the existence of
Federal authority to regulate the tanker operations in question, it is
important to note that certain possible Federal limits upon the State’s
authority—for example, preemption—have no application to the Feder­
al Government. A related matter that could become significant is the
possibility of State enforcement of federally prescribed pollution con­
trol requirements. See, e.g., § 304 of the Clean Air Act, as amended, 42

   5 See 46 C F R 32.53 (inert gas system); 33 C F R 157.09 (segregated ballast). See also
proposed amendm ents to the C oast G uard regulations set forth in 42 Fed. Reg. 24868
(segregated ballast) and 24874 (inert gas system).
   4 R ecently, an am endm ent bearing directly upon the present issues w as introduced in
the H ouse o f Representatives, debated, and then w ithdraw n. See 123 Cong. Rec. H 5067-
72 (daily ed., May 25, 1977). T h e sponsor stated that a similar am endm ent m ight be
offered in the future. 123 Cong. Rec. H 5072 (daily ed., M ay 25, 1977) (R em arks o f
Representative Miller).
   5 See footnote 3, supra.

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U.S.C. 1857h-2, which authorizes the bringing of certain types of
“citizen suits.”

    a.   Preemption
(1) The Clean Air Act
   One question is whether the Clean A ir A ct furnishes a basis for
regulating emissions from vessels. Your Office and EPA have taken the
position that it does, and we agree. See, Texas v. EPA, 499 F. 2d 289,
316-317 (5th Cir. 1974).
   Under the Clean Air A ct, EPA sets national ambient air quality
standards for widespread pollutants, such as hydrocarbons. § 109, 42
U.S.C. 1857c-4. The basic means of achieving compliance with stand­
ards is a State implementation plan. § 110, 42 U.S.C. 1857c-5. The Act
expressly provides that “primary responsibility for assuring air quality
within . . . [its] geographic area” belongs to each State. § 107, 42
U.S.C. 1857c-2. If a State plan is inadequate in some respects, EPA is
required to cure the deficiency by issuing its own regulation. As noted
previously, E PA has not approved California’s procedure for review of
new sources and has promulgated a regulation providing for review by
EPA.
   It is clear that, with limited exceptions not pertinent here, the Clean
A ir A ct does not preempt State authority, i.e., use of the State’s police
pow er to impose standards regarding air pollution. The Act contains a
provision, § 116, 42 U.S.C. 1957d—1 (1975 Supp.), which provides that
there is no such preemption, so long as the standard based upon State
law is not less stringent than standards set forth in the Act.
  A ccording to your memorandum, E PA has stated that the conditions
proposed by the oil company are not less stringent than standards EPA
would impose in connection with its review of the terminal. O f course,
the action ultimately taken by EPA will be highly significant. One
possibility would be that, after issuance o f a permit by the California
agency, E PA would issue a permit setting forth the same conditions.
Such action by E P A would lend substantial support to the action taken
by the State agency. On the other hand, a finding by EPA that one or
more o f the State’s conditions would not be sufficiently strict would
probably mean that any such condition would be revised.
(2) Ports and Waterways Safety Act
  Title I of the Ports and Waterways Safety Act of 1972 (PWSA)
authorizes the Coast Guard to establish vessel traffic control systems
and to regulate certain types of vessel operations, in order to prevent
damage to vessels, bridges, and other structures and to protect the
navigable waters from environmental harm. 33 U.S.C 1221 (1975
Supp.). More pertinent here is Title II, 46 U.S.C. 391a (1975 Supp.),
which directs the Coast G uard to establish regulations concerning the
design and operations of certain kinds of vessels, including oil tankers,
in order to protect the navigable waters of the United States and the

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resources of those waters and adjoining land. Such regulations have
been issued. See 33 CFR 157.
   The District Court in Atlantic Richfield Co. v. Evans, a case now
pending in the Supreme Court,8 held that the PWSA preempted the
field so as to render invalid Washington statutes regulating the size and
design o f oil tankers operating in Puget Sound. We believe that even
assuming the District Court correctly decided the Atlantic Richfield
case, the facts differ significantly from the present situation.
   Here, if a California permit containing the oil company’s conditions is
ratified by EPA, the issue will not be preemption by the PWSA, but
the relationship between that statute and the Clean Air Act. C f, Texas
v. EPA, supra. In the event of conflict or inconsistency between the
California (or EPA) conditions and Coast Guard regulations, the result
will depend upon the specific facts. The task will be to reconcile the
two statutes, bearing in mind that a basic objective of the Clean Air
Act is to preserve the primary role of the States with respect to control
of air pollution. C f, Huron Portland Cement Co. v. Detroit, 362 U.S. 440
(1960).
   To summarize, it does not appear that the subject in question—
controlling air pollution caused by oil tankers—is preempted by the
PWSA or any other Federal law.7 Still, depending upon the particular
facts, the PWSA or Coast Guard regulations issued under it might have
the effect of overriding certain requirements imposed by California.

    b.    Burden on Commerce; Foreign Relations
   The Huron Portland Cement Co., supra, case and others that deal with
the question whether State laws impose an unconstitutional burden on
interstate commerce support the view that the proposed California
standards would not be invalid on this ground. However, depending
upon the factual record, certain of the requirements might be vulner­
able. Congress has indicated its view that, with regard to control of air
pollution, variation from State to State is permissible. Even if the
California standards were to impose requirements going beyond Coast
Guard regulations and entailing substantial expense {e.g., additional
equipment or changes in the vessels), California could assert that the
seriousness of its air pollution problem justifies the measures it has
adopted.
   The next matter to be discussed is the possible impairment of the
foreign relations of the United States, resulting from the application of
the California standards to foreign ships. In this regard, the decision in
Zschernig v. Miller, 389 U.S. 429 (1968) should not be given much
weight. That case involved an Oregon statute relating to the ability of

  •T h e decision o f the D istrict C ourt, No. C -75-648-M (W .D . W ash. Sept. 23, 1976), is
not reported.
  7 A num ber o f o ther statutes deal w ith aspect o f oil tanker operations. See, e.g., the Oil
Pollution A ct, 33 U.S.C. 1002. T h ere are also international conventions relating to the
subject, e.g.. the International C onvention for the Safety o f Life at Sea, 16 U.S.T. 185.

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nonresident aliens to inherit Oregon property; its provisions were such
that the State courts passed judgment upon the laws and practices of
the foreign country and the credibility of foreign officials. It was this
kind of inquiry that caused the Supreme Court to find an unconsitu-
tional intrusion by the State into the realm of foreign affairs. Here, in
contrast, the question would be one of applying to foreign ships State
regulations o f general applicability. No question of discrimination
against foreign ships would be presented.
   In general, the police power of a State extends to foreign persons
within its jurisdiction.8 See concurring opinion of Mr. Justice Harlan in
Zschernig, 389 U.S. at 459. An added factor here is that the California
requirements might have the imprimatur of EPA. Thus, we question
w hether the Zschernig issue indicates the need for exemption or special
treatm ent of foreign ships.

    c.    Operations Outside the 3-Mile Limit
   It is our opinion that with respect to tankers using the proposed
terminal, California has authority to regulate operations taking place
beyond the 3-mile limit. T his assumes, of course, that there is a proper
nexus between those operatiofts and the quality of the air over the
State’s territory.
   It is significant that the proposed conditions are limited to ships using
the terminal; the State does not seek to regulate all vessels coming
within the contiguous zone.
   It seems clear that Congress has the power to reach conduct occur­
ring in the contiguous zone, but one issue is whether the Clean Air Act
was intended to have that effect. A general rule of statutory construc­
tion is that “the legislation of Congress will not extend beyond the
boundaries o f the United States unless a contrary legislative intent
appears.” Steele v. Bulova Watch Co., 344 U.S. 280, 285 (1952).
   The view that the Clean Air Act has extraterritorial effect (at least to
the extent involved here) rests upon the purpose of the statute, rather
than any specific provision or legislative history. Your Office and EPA
have concluded that the A c t does have that effect. We are in accord
with your view. Because the purpose of the State’s requirements con­
cerning operations in the 12-mile zone would be to protect the air over
the State’s territory, not the air over the high seas. This would seem to
be a reasonable means of implementing the A ct.9
   In addition, as pointed o u t above, the States retain the authority to
exercise independent police power to deal with air pollution. If the
requisite nexus exists, that authority could be used to reach conduct in
  8 A n o th e r p ertinent consideration may be w hether a foreign-flag ship is ow ned or
con tro lled by U nited States persons. C f, Lauritzen v. Larsen, 345 U.S. 571 (1953).
  9 C learly, the present situation differs from one in w hich State A sought to regulate, on
the basis o f the C lean A ir Act, activities in S tate B. But see, Illinois.v. City o f Milwaukee,
406 U.S. 91, 103-108 (1972) (w a te r pollution suit based on F ederal com m on law of
nuisance).

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the contiguous zone. C f, Skiriotes v. Florida, 313 U.S. 69, 77 (1941).
This is another area where the issue of jurisdiction over foreign ships is
raised. In our opinion, California possesses some regulatory authority
over such ships.
   The Federal Government may impose reasonable conditions upon
foreign ships using its ports. C f, Cunard Steamship Co. v. Mellon, 262
U.S. 100, 124 (1923) (application of prohibition law). Such conditions
may relate to conduct beyond the 3-mile limit.
   For purposes of international law, the authority to impose such
conditions may be exercised not only by the Federal Government, but
also by a State government. Therefore, assuming there is no conflict
with an applicable treaty (or Federal statute or regulation), California
would have authority to regulate foreign ships, as well as United States
ships, using the proposed terminal.
                                           John M. H   armon
                                 Acting Assistant Attorney General
                                                Office o f Legal Counsel




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