98
Opinion of the Court
Although the United States declined to intervene when the case was in the District Court, the governments of 13 ocean-going nations expressed concerns through a diplomatic note directed to the United States. Intertanko lodged a copy of the note with the District Court. The concerned governments represented that "legislation by the State of Washington on tanker personnel, equipment and operations would cause inconsistency between the regulatory regime of the US Government and that of an individual State of the US. Differing regimes in different parts of the US would create uncertainty and confusion. This would also set an unwelcome precedent for other Federally administered countries." Note Verbale from the Royal Danish Embassy to the U. S. Dept. of State 1 (June 14, 1996).
The District Court rejected all of Intertanko's arguments and upheld the state regulations. International Assn. of Independent Tanker Owners (Intertanko) v. Lowry, 947 F. Supp. 1484 (WD Wash. 1996). The appeal followed, and at that stage the United States intervened on Intertanko's behalf, contending that the District Court's ruling failed to give sufficient weight to the substantial foreign affairs interests of the Federal Government. The United States Court of Appeals for the Ninth Circuit held that the State could enforce its laws, save the one requiring the vessels to install certain navigation and towing equipment. 148 F. 3d 1053 (1998). The Court of Appeals reasoned that this requirement, found in WAC § 317-21-265, was "virtually identical to" requirements declared pre-empted in Ray v. Atlantic Richfield Co., 435 U. S. 151 (1978). 148 F. 3d, at 1066. Over Judge Graber's dissent, the Court of Appeals denied petitions for rehearing en banc. 159 F. 3d 1220 (1998). Judge Graber, although unwilling, without further analysis, to conclude that the panel reached the wrong result, argued that the opinion was "incorrect in two exceptionally important respects: (1) The opinion places too much weight on two clauses in Title I of OPA 90 [The Oil Pollution Act of 1990]
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