In Re Bluewater Network And Ocean Advocates

234 F.3d 1305 (D.C. Cir. 2000)


On March 24, 1989, the Exxon Valdez supertanker struck Bligh Reef in Prince William Sound, dumping eleven million gallons of oil into Alaska's once-pristine coastal ecosystem. Congress passed the Oil Production Act (OPA). In part, the act established substantive tanker design and evaluation requirements to prevent spills. Section  4110--requires D, by August 18, 1991, to promulgate regulations establishing minimum compliance standards and use requirements for tank level and pressure monitoring (TLPM) devices. Section 4116(c)--requires D, by February 18, 1991, to initiate the issuance of regulations to define waters, including Prince William Sound and two other named areas, over which single-hulled tankers must be escorted by at least two towing vessels. Ps filed the present mandamus petition in December 1999, seeking to compel D to comply with its obligations under both § 4110 and § 4116(c) of the OPA. D has episodically engaged in some rulemaking and promulgated some regulations, pursuant to each of the provisions at issue. Approximately three months before the statutorily-imposed deadline on § 4110, D issued an advanced notice of proposed rulemaking seeking comments and suggestions regarding possible proposed rules for complying with §§ 4110(a) and (b). D also commissioned a technical feasibility study of existing TLPM devices, released in early 1993, which confirmed that, as of 1993, 'existing level detectors [were] not sufficiently sensitive to detect leakage before a large discharge occurred.' The study found that 'attainable accuracy is expected to be within 1.0-2.0% of the actual level.' D deemed this would provide 'insufficient warning to allow prompt action by the crew.' D called for a public hearing to augment comments to the original advanced notice. In 1995 D limited its proposed rule to the establishment of standards for TLPM devices pursuant to § 4110(a), leaving questions of installation and use of compliant devices, pursuant to § 4110(b), for another day. D acknowledged that 'currently available devices may not meet the proposed standards for meaningful leak detection. In March 1997, D adopted the proposed standards in the form of a temporary rule, effective for two years beginning April 28, 1997. D let the temp rule expire because the technology wasn’t available. There are currently no regulations in place under either of § 4110's two provisions. Moreover, the Coast Guard never even attempted rulemaking pursuant § 4110(b). For section 4116(c) D issued a final rule in August of 1994. The final rule did not expand coverage beyond the statutorily-mentioned areas. To date, the Coast Guard has not promulgated final 'other waters' escort requirements. D has stated that 'extending escort requirements beyond the OPA 90 mandated areas is discretionary.' The lower court refused to grant mandamus. Ps appealed.