LSI 2010 NRD Santa Fe final conference binder 072110.pdf

Allan Kanner of Kanner & Whiteley, L.L.C. Speaker 23: 42
presumption is that powers historically belonging to the states are not preempted by federal
legislation unless that is the clear and manifest purpose of Congress.” 164
The fact that the states
have historically been entrusted with the protection of natural resources lends credence to the
argument that federal laws will rarely preempt state law claims for NRD.
In In the Matter of Allied Towing Corporation, a party who spilled oil into the
Chesapeake Bay filed a complaint seeking limitation of liability pursuant to the Limitation of
Liability Act 165 and § 1321(f) of the CWA. 166
The United States responded by filing a claim for
cleanup costs and the State of Virginia also responded by filing a claim seeking civil penalties,
cleanup costs and damages for injury to natural resources. 167
The court held that federal law
does not supersede a valid exercise of a state’s police power unless there is a specific
manifestation of Congress’s intent to preempt state law. 168
With respect to the interaction
between the CWA and Virginia state statutes, the court stated:
Nothing in this scheme [of the CWA], however, conflicts with or otherwise
preempts any state statute, such as Virginia’s, imposing liability on the owner or
operator of any vessel which illegally discharges oil, nor does it limit the
amount of liability. Similarly, nothing in the FWPCA precludes the states from
imposing civil penalties upon vessel owners or operators who violate state
statutes by discharging oil illegally. It merely provides the states with an
alternative federal remedy which assures that, either through the action and
expenditure of the state or Federal Government, the natural resources of this
country will be preserved.” 169
164 Id.
165 46 U.S.C. §§ 181-189 (1976).
166 In the Matter of Allied Towing Corporation, 478 F. Supp. 398, 400 (E.D. Va. 1979).
167 Id. at 400.
168 Id. at 401.
169 Id. at 403.
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Law Seminars International | Natural Resource Damages | 07/16/10 in Santa Fe, NM