HERE'S TO UNSUNG HEROES _ THOSE WHO SAVE THEIR CLIENTS AND THEIR CLIENTS' CLIENTS BUNDLES

HERE'S TO UNSUNG HEROES _ THOSE WHO SAVE THEIR CLIENTS AND THEIR CLIENTS' CLIENTS BUNDLES

Imagine winning a case that potentially saved your client millions of dollars and his customers billions and nobody seemed to notice?



I am sure that is how the attorneys from the U.S. Coast Guard and the Department of Justice felt after successfully petitioning a federal judge to dismiss a suit brought by the Natural Resources Defense Council, an environmental group, seeking to overturn the Coast Guard's rules on interim structural measures for single-hull tank vessels.

The suit was Natural Resources Defense Council Inc., et al v. United States Coast Guard (D.N.J., Civil Action 97-3910).

OPA 90 MANDATES

COAST GUARD ACTION

Under the Oil Pollution Act of 1990, single-hull tank vessels are required to be phased out and replaced with double-hull tonnage. To enhance environmental protection of single-hull vessels prior to their phaseout date, OPA 90 directed the Coast Guard to issue interim structural and operational requirements to provide as much environmental protection as was ''economically and technologically feasible.''

While the Coast Guard was supposed to issue these rules within 12 months of the enactment of OPA 90, or Aug. 18, 1991, this artificial deadline did not take into consideration the complexity of the issue, the multitude of other OPA 90 mandated rule-makings the Coast Guard had to deal with, or the inherently slow pace of the federal regulatory process.

Consequently, the Coast Guard came nowhere near meeting this unrealistic deadline - the final rules on operational measures were issued in July 1996 and the final structural rules were issued in January 1997.

After examining all the possible alternatives, the Coast Guard determined not to require any structural measures for existing tank vessels without double hulls. Retrofitting double bottoms or sides, implementing hydrostatic balance loading, restricting existing tanks from carrying cargo, and retrofitting spaces so that they are located protectively around cargo tanks were all examined.

The Coast Guard found that while these alternatives were technologically feasible, none was economically feasible, given the costs of implementation.

Eight months later, the NRDC filed its lawsuit in the U.S. District Court of the District of New Jersey. The NRDC alleged that the Coast Guard did not issue its rule-making in a timely fashion and that the agency employed an impermissible and flawed cost benefit analysis.

According to the NRDC, the Coast Guard's actions made the alternatives appear to cost more than they really did, rendering them all economically infeasible. The NRDC requested the court order the Coast Guard to recommence its rule-making on an expedited basis without consideration of costs.

NRDC SUIT

IS DISMISSED

The NRDC suit faced rough going from the start. After filing the complaint, various procedural discrepancies prolonged the time period the Coast Guard needed to respond to the NRDC. Once it needed to respond, the Department of Justice - acting for the Coast Guard - filed a motion to dismiss.

The motion to dismiss argued that under the litigation jurisdiction and venue clause of OPA 90, any regulation promulgated under ''the act'' could only be challenged in the Circuit Court of Appeals of the United States for the District of Columbia and any such challenge had to be made within 90 days of promulgation of a regulation. Since the NRDC suit was filed in the District Court of New Jersey and was beyond the 90-day time period, the District Court lacked subject-matter jurisdiction to consider the case.

The NRDC countered that the jurisdiction and venue provision was only applicable to regulations regarding liability and compensation. Since the interim structural measure rule was issued pursuant to authority under title 46, United States Code, the general jurisdiction and venue provisions of the Administrative Procedures Act applied. Consequently, the suit was properly filed.

District Court Judge John Lifland disagreed with the NRDC. In an unpublished opinion issued last month, Judge Lifland agreed with the Department of Justice and found that the District Court lacked subject-matter jurisdiction. He, therefore, granted the U.S. government's motion to dismiss.

As of this writing, the NRDC has not appealed this decision.

CONGRATULATIONS

ARE IN ORDER

Congratulations and thank-yous are in order for the largely anonymous attorneys from the Coast Guard and Department of Justice. Their efforts and the court's decision have unquestionably saved the maritime industry a great deal of trouble and money.

If the Coast Guard had been forced to begin a rule-making without due consideration of the economic impacts of any potential requirements, rules costing billions of dollars in lost revenue and capacity were not only possible, but probable.