the state for judicial relief from a state agency decision and for compensatory damages that, if successful, would be paid by the state. It is therefore barred by the eleventh amendment. Edelman, 415 U.S. at 666.
B. QUALIFIED IMMUNITY
Even if the suit is against the defendants in their personal capacity, they are afforded qualified immunity for violations of constitutional rights resulting from the exercise of official powers. Butz v. Economou, 438 U.S. 478, 499-504, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978); cf. Sprecher v. Graber, 716 F.2d 968, 976 (2d Cir. 1983). Under Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982), immunity for agency officials acting within the discretion granted them by the legislature will be found unless their conduct "violates clearly established statutory or constitutional rights of which a reasonable person would have known." Simply alleging, as plaintiffs do here, that the defendants acted with a malicious intention to deprive them of their rights, is no longer sufficient after Harlow. See id. at 815-17 (rejecting "subjective" component of test for qualified immunity; "bare allegations of malice should not suffice"). Since even at this stage it is not clear that any federally created rights have been violated, the defendants are entitled to immunity.
Dismissal is also warranted on grounds of abstention under Burford v. Sun Oil Co., 319 U.S. 315, 87 L. Ed. 1424, 63 S. Ct. 1098 (1943), and Railroad Commission v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941).
Under Burford, federal courts should abstain from deciding questions of state law where it would hamper the states' efforts to establish a coherent regulatory scheme on issues of importance to the state. In Burford itself, Sun Oil Company had challenged decisions by the Texas Railroad Commission granting Burford permission to drill several oil wells. Since federal decisions would have substantially interfered with the Commission's regulatory procedures, the Supreme Court ordered the federal suit dismissed.
In this case, New York state has a comprehensive statutory scheme and settled administrative procedures for dealing with environmental and safety violations threatening pollution of New York's waterways and beaches. We take judicial notice of the huge amount of oil and oil-related products transported in and near New York's shore lines by vessels, pipeline and vehicles. Many oil spills occur each year in the port of New York. They threaten the safety and welfare of the state's population. Closing of New York's beaches because of pollution poses risks to the health and well-being of millions of people and could prove a disaster to the state's tourist industry. Fire resulting from petroleum spills and the interruption of shipping with adverse effects on commerce, jobs and tax revenues are properly of great concern to New York state.
Deciding the state statutory and regulatory issues in this case may disrupt state efforts to create a viable statutory and administrative scheme for coping with pollution of New York's waterways. Under Burford, dismissal is mandated as a matter of law and in the exercise of the court's discretion. See, e.g., Onondaga Landfill Sys., Inc. v. Williams, 624 F. Supp. 25 (N.D.N.Y. 1984) (abstention applied in case challenging constitutionality of New York Environmental Conservation Law provisions granting DEC Commissioner broad inspection powers).
Abstention under Pullman is proper where a state proceeding can be brought with reasonable promptness, and a decision on an unsettled question of state law may moot the federal case. Once a court has abstained, the plaintiff must generally file a state court action and expose the federal constitutional issue so that the state court may "interpret the statute in light of the constitutional objections presented." Government & Civic Employees Org. Comm. v. Windsor, 353 U.S. 364, 366, 1 L. Ed. 2d 894, 77 S. Ct. 838 (1957).
Plaintiffs' complaint raises serious questions about New York's laws. On its face, section 71-0301 offers little guidance on when the Commissioner may act, and apparently offers none as to when and how Summary Abatement Orders are terminated. Moreover, the licensing provisions of New York's Navigation Law, while empowering the Commissioner to impose fines, do not appear to explicitly authorize the Commissioner to revoke licenses as implicitly claimed in 17 NYCRR § 30.10(b). It is precisely because these are unresolved and difficult questions of state law that abstention is appropriate. The state courts have not had occasion to provide an authoritative interpretation of these statutes. If a state court were to decide that the Commissioner exceed his statutory power, the plaintiffs' licenses would be reinstated and the federal constitutional questions avoided. Accord Brookhaven Aggregates, Inc. v. Williams, 23 E.R.C. 1927 (E.D.N.Y.), aff'd, 795 F.2d 78 (2d Cir. 1985) (motion to enjoin Summary Abatement Order denied on grounds of abstention).
State laws must give way to conflicting federal laws or regulations under the supremacy clause. See generally Wisconsin Pub. Intervenor v. Mortier, 115 L. Ed. 2d 532, 111 S. Ct. 2476, 2481-83 (1991). Preemption will be found if compliance with both state and federal law is impossible. See, e.g., Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 10 L. Ed. 2d 248, 83 S. Ct. 1210 (1963). It may also be inferred where state law inhibits conduct that federal law specifically encourages. See, e.g., Nash v. Florida Indus. Comm'n, 389 U.S. 235, 239, 19 L. Ed. 2d 438, 88 S. Ct. 362 (1967). Preemption will also occur even in the absence of any conflict between state and federal provisions if there is evidence that Congress has completely "occupied the field" in which the state seeks to regulate. See, e.g., Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947). Plaintiffs have not established that Article 12 of New York's Navigation Law is preempted on any of these theories. Plaintiffs' contention that New York's summary abatement statute ought to be voided as preempted is also meritless.
Plaintiffs contend that the licensing provisions of New York Navigation Law, insofar as they provide for the safe operation of seagoing vessels, are preempted by the Ports and Waterways Safety Act of 1972 (PWSA), as amended, see 33 U.S.C. §§ 1221-36, and by Subtitle II of Title 46 of the United States Code (governing shipping). See 46 U.S.C. §§ 2101-14702. 33 U.S.C. § 1223 authorizes the Secretary of Transportation to establish rules and regulations to ensure the safe operation of vessels in port waters. Existing regulations affecting oil tankers include 33 C.F.R. § 161 (establishing vessel traffic rules for various United States ports); 33 C.F.R. § 160 (empowering Coast Guard officers to ensure safety of vessels and port waters); and 33 C.F.R. § 157 (establishing design and operation regulations for oil tankers). Federal regulations promulgated under the PWSA also specifically grant the United States Coast Guard authority to prohibit vessels from operating in United States waters if the vessels' operational records suggest that they pose an environmental threat. See 33 C.F.R. § 160.113. 46 U.S.C. § 3703(a) requires the Secretary of Transportation to prescribe regulations for the design, construction, maintenance, and operation of certain tanker vessels. See 46 C.F.R. § 30.01-30.30. Further regulations specific to oil tankers are found in 46 U.S.C. § 3703a.
There is no conflict between these federal statutes and the applicable state law. The only relevant substantive standards (i.e., standards governing the actual operation of oil-carrying vessels) in Article 12 of New York Navigation Law are contained in section 174, which sets as a condition precedent to the issuance of an operating license that the licensee comply with state and federal plans for control of petroleum discharges and that the licensee provide necessary equipment to prevent, contain and remove discharges of petroleum. New York Navigation Law § 174(3) & (8). (Regulations of "new vessels" sold in New York requiring "fuel oil tank vents" do not become effective until 1994 and are not implicated in the current suit. See New York Navigation Law § 173(2).) Plaintiffs do not maintain that these conditions conflict with, or inhibit the implementation of, federal law. In fact they admit that the New York regulations are for the most part merely duplicative of their federal counterparts. Supplemental Memorandum of Law in Opposition to Defendants' Motion to Dismiss, at 6-7. Plaintiffs thus concede that "the issue of federal preemption of New York State regulation in this area is practically moot because . . . there is little state regulation." Id. at 6.
Since there is no direct conflict between state and federal law, plaintiffs must rely on a claim that New York law discourages behavior whose promotion is the aim of federal law or that Congress has occupied the field of oil pollution control. Plaintiffs maintain that Ray v. Atlantic Richfield Co., 435 U.S. 151, 55 L. Ed. 2d 179, 98 S. Ct. 988 (1978), is conclusively in its favor on these points. Contrary to plaintiffs' view, Ray indicates how far the Supreme Court is willing to go to allow local regulation of oil tanker activity. See L. Tribe, American Constitutional Law § 6-26, at 487 (2d ed. 1988) ("The basic teaching of the [Ray ] decision is that state pressure to act in derogation of a federal statutory scheme is not to be inferred lightly.").
Ray concerned an attempt by the State of Washington to impose restrictions on oil tankers operating in Puget Sound. The Washington statute contained three provisions. The first required tankers "enrolled in the coastwise trade" to have on board a pilot licensed by Washington state; the second established that vessels entering Puget Sound were required either to meet specific design criteria or be escorted into port by tugboats; the third provision excluded from Puget Sound any tanker in excess of certain tonnage.
The Supreme Court held that the third provision of the state statute was preempted because it directly conflicted with vessel size regulations enacted by the Secretary of Transportation pursuant to the PWSA. Ray, 435 U.S. at 173-75. Likewise, the Court found that the first provision of the Washington law requiring a local pilot for vessels engaged in coastwise trade was, if read literally, preempted because it conflicted with PWSA provisions governing the licensing of pilots. Nevertheless, the Court indicated that this holding was necessary only because of the overly broad language of the state statute. Insofar as the statute required local pilots for vessels only when operating in the confines of Puget Sound, the Court found no preemption. Accordingly, it reversed a lower court ruling voiding the state provision in its entirety. Id. at 159-60.
The Court also stretched to avoid preemption in ruling on the second provision (providing the option of meeting certain design requirements or using a tugboat escort). The design requirements were ruled preempted by regulations issued pursuant to PWSA provisions authorizing the Secretary of Transportation to establish "comprehensive minimum standards of design, construction, alteration, repair, maintenance, and operation," as well as a system of inspection to ensure compliance with these standards. See id. at 161. The Court nevertheless held that the second provision was saved by the fact that these preempted requirements were posed as an alternative to the tugboat escort. Since the latter provision was not preempted, the statute was deemed enforceable to the extent it imposed only the tugboat escort requirement. Id. at 172-73.
Plaintiffs claim that the licensing provisions of Article 12 of the New York Navigation Law are akin to the design, construction and operation requirements and the tonnage limitations invalidated in Ray. Ray, however, only invalidated state provisions where there was an actual conflict between state and federal law. Where there was no such conflict, the Court steadfastly refused to infer preemption in the field of environmental protection, an area that lies at the core of the states' police powers. See Ray, 435 U.S. at 157 ("When a State's exercise of its police power is challenged under the Supremacy Clause, 'we start with the assumption that the historic police powers of the States [are] not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'") (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947)). The Ray Court thus emphasized:
We do not question in the slightest the prior cases holding that enrolled and registered vessels must conform to "reasonable, nondiscriminatory conservation and environmental protection measures . . ." imposed by a State.
Id. at 164 (quoting Douglas v. Seacoast Prods., Inc., 431 U.S. 265, 277, 52 L. Ed. 2d 304, 97 S. Ct. 1740 (1977)).
The New York licensing provisions present an even weaker case for preemption than did the provisions upheld in Ray. As plaintiffs themselves emphasized at oral argument, section 174's licensing scheme effectively places a tax on vessels seeking to operate in New York waters to finance oil spill cleanups. There is no evidence that such a tax discourages navigation that Congress sought to promote. Particular classes of vessels are not barred from New York harbors. The scheme does not appear to require any design or operational modifications beyond those set by federal law. The licensing system is not discriminatory against non-New Yorkers. Long Island Oil Terminals Ass'n v. Commissioner, 70 A.D.2d 303, 421 N.Y.S.2d 405, 407 (App. Div. 3d Dep't 1979). For all these reasons, a finding of preemption is unwarranted.
If there were any doubt as to congressional design, provisions in the Federal Water Pollution Control Act (the Clean Water Act), 33 U.S.C. §§ 1251-1387, as amended by the Oil Pollution Control Act of 1990 (OPCA), 33 U.S.C. § 2701-61, settle the issue. The original Clean Water Act specifically establishes a system of liability for the release of oil into waters that is almost identical to the provisions of Article 12. See 33 U.S.C. § 1321. Vessel owners and operators are subject to imprisonment, fines, and civil liability for illegal discharges of oil. Id. § 1321(b). Section 1321(s) also allows use of the "Oil Spill Liability Trust Fund" created under the Internal Revenue Code to compensate government for cleanup costs. The Fund is financed in part from fines assessed under section 1321(b). Although section 1321 was recently modified by the passage of the OPCA, vessel owners and operators are still liable for unpermitted discharges of oil and the Fund continues to operate much as it did before. See 33 U.S.C. §§ 2701(32), 2702.
If Congressional plans to preempt statutes like Article 12 were to be found anywhere, it would be in these two statutes. Yet both the Clean Water Act and OPCA explicitly state the opposite. 33 U.S.C. § 1321(o)(2) reads:
Nothing in this section shall be construed as preempting any State . . . from imposing any requirement or liability with respect to the discharge of oil . . . into any waters within such State, or with respect to any removal activities related to such discharge.