Appeals court gives Mass. AG win over Coast Guard

Bryan Cohen May 23, 2011, 1:26pm


BOSTON (Legal Newsline) - Massachusetts Attorney General Martha Coakley announced Friday that a federal appeals court ruled to reinstate oil spill prevention measures at Buzzards Bay.

The decision ensures that oil barges traveling through the bay are properly manned and escorted in an effort to prevent future oil spills, Coakley said. The decision was made against the U.S. Coast Guard.

The U.S. Court of Appeals for the First Circuit accepted Coakley's claim that the U.S. Coast Guard violated the National Environmental Policy Act when it issued federal regulations that would invalidate certain provisions in the Massachusetts Oil Spill Prevention Act of 2004.

The court found that the Coast Guard failed to conduct any analysis of the environmental consequences of the regulations. As part of the decision, the Massachusetts Department of Environmental Protection will enforce OSPA's requirements for tugboat escorts and number of personnel on board towing vessels and barges.

"We are pleased that the U.S. Court of Appeals agreed with our position that the Coast Guard failed to live up to its legal obligations under the National Environmental Policy Act," Coakley said, "We hope that the U.S. Coast Guard will now seriously reconsider its position and, if it decides to move forward with new regulations, adopt ones that will provide Buzzards Bay with the protection that such a vital natural resource deserves."

The first provision of the OSPA is that tugboat escorts are required to accompany all tank barges, both single and double-hulled, that are transporting 6,000 or more barrels of oil through Buzzards Bay. The second provision is that additional lookout personnel and crew are required on vessels towing single-hulled tank barges.

Coakley's office filed challenges in the U.S. District Court to the Coast Guard regulations in late 2007 and early 2008. Coakley alleged that the Coast Guard violated NEPA by failing to consider potential environmental consequences of eliminating tugboat escorts for double-hulled oil tank barges transporting massive amounts of oil through the bay.

With federal law phasing out single-hulled tank barges by 2015, all tank barges carrying oil through the bay would have been un-escorted by Coast Guard regulations. Coakley said that tugboat escorts provide important safety for oil barges by warning them about navigational risks and providing immediate assistance if they encounter a mechanical or navigational problem.

The District Court upheld the Coast Guard's regulations on March 31, 2010, even though it found that there had not been any analysis of potential environmental consequences of those decisions, as required by federal law.

OSPA was enacted in the wake of the April 2003 spill of approximately 98,000 gallons of oil into the bay. As part of the First Circuit's ruling, the Coast Guard will have to reconsider its regulations for Buzzards Bay and MassDEP will be allowed to enforce the manning and tugboat escort requirements.

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