The Aftermath of the Intertanko Decision - How Far can the States Go in Regulating the Maritime Industry

ABSTRACT Since the enactment of the Oil Pollution Act of 1990 (“OPA 90”) more than 10 years ago, many states took aggressive action regulating the marine industry. States, sometimes stepping well beyond their bounds, enacted comprehensive oil pollution laws that imposed additional liability, as well as prevention and response planning requirements, beyond those contained in OPA 90. Washington State was clearly the most aggressive when it implemented its Best Achievable Protection (BAP) regulations in the early 1990s. The International Association of Independent Tanker Owners (Intertanko) challenged the BAP regulations, and the Supreme Court sided with Intertanko and reaffirmed that states may not regulate vessel construction, design, operation, and manning. States, however, have not given up the gauntlet and continue to aggressively regulate the marine industry by expanding their regulation beyond tank vessels to include passenger vessels, cargo vessels, and tugs/barges. This paper will review newly enact...