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- Title
OPA OR NOPA? RESTORING COOPERATIVE FEDERALISM IN OIL POLLUTION ENFORCEMENT.
- Authors
LAMB, JENNIFER
- Abstract
Catastrophic oil spills are some of the most visible and devastating contemporary environmental disasters. Unfortunately, a loophole in the Clean Water Act has significant potential to limit the United States 's ability to prosecute those who spill oil. Commonly known as the statutory preclusion provision, the provision prevents the federal government from prosecuting an action when a state acts first--even if the state has only acted administratively against a violator. Expansive interpretation of statutory preclusion by federal courts creates an emerging impediment to effective enforcement against oil pollution. The highly publicized 2013 decision of United States v. CITGO Petroleum Corp. was the first oil spill case to address the issue of statutory preclusion. This Comment argues that the application of statutory preclusion to Oil Pollution Act cases is contrary to the original intent of the Congress in drafting the statutory preclusion provision of the Clean Water Act and subsequent Oil Pollution Act amendments. Further, applying statutory preclusion to oil pollution cases undermines effective enforcement. This Comment proposes that the Environmental Protection Agency (EPA) should take a leadership role by arguing that its interpretation of the statutory preclusion provision in its regulations should be entitled to deference under Chevron v. National Resource Defense Council. Providing Chevron deference to the EPA's prosecutorial determinations will resolve a three-way split among the federal circuits. A uniform rule will also facilitate effective relationships under cooperative federalism for the benefit of the environment.
- Subjects
UNITED States; OIL spill laws; COOPERATIVE federalism; LAW enforcement; WATER pollution laws; UNITED States. Environmental Protection Agency
- Publication
Emory Law Journal, 2016, Vol 65, Issue 3, p841
- ISSN
0094-4076
- Publication type
Article