SAVAGE SERVICES CORPORATION, SAVAGE INLAND MARINE, LLC (UTAH), Plаintiffs - Counter-Defendants - Appellants, versus UNITED STATES OF AMERICA, Defendant - Counter-Claimant - Appellee.
No. 21-10745
United States Court of Appeals, Eleventh Circuit
02/08/2022
[PUBLISH]
Appeal from the United States District Court for the Southern District of Alabama
D.C. Docket No. 1:20-cv-00137-WS-N
Before ROSENBAUM and JILL PRYOR, Circuit Judges, and ALTMAN,* District Judge.
In the wake of the Exxon Valdez oil spill, which saw millions of gallons of oil pour into the waters off Alaska‘s coast, Congress passed the Oil Pollution Act of 1990 (the “OPA“). The OPA creates a comprehensive remedial scheme that governs—and apportions—liability for oil-removal costs. The statute holds oil spillers strictly liable upfront for oil-removal expenses and then carefully incentivizes their good behavior by allowing them, if they meet certain requirements, (1) to avail themselves of one of three liability defenses and (2) to seek contribution on the back end from other culpable parties.
In our case, the M/V SAVAGE VOYAGER was transporting oil through a Mississippi waterway when an accident at a boat lift—operated by the U.S. Army Corps of Engineers—caused a rupture in the SAVAGE VOYAGER‘s hull, through which thousands of gallons of oil poured into the river. Blaming the Government, the owners of the vessel sued the United States. Critically, though, they sued, not under the OPA, but under the common-law admiralty regime that has persisted for centuries. And, hoping to pierce the
Government‘s sovereign immunity, they relied on the Suits in Ad-miralty Act (the “SAA“), a 1920 law by which Congress generally waived sovereign immunity for most admiralty claims.
This case—hinging on the interplay betwеen the OPA and the SAA—presents an issue of first impression in the federal courts. The district court dismissed the vessel owner‘s claims for removal costs in two steps. First, the court held that the
BACKGROUND
I. The Spill
We start at the beginning—with an oil spill in the Tennessee-Tombigbee Waterway, a manmade system of canals, locks, and dams linking the Tennessee River in Mississippi with the Tombigbee River in Alabama. Here‘s a map of the Waterway:
On September 8, 2019, the M/V SAVAGE VOYAGER was pushing two tank barges along the Tennessee-Tombigbee Waterway.1 Our Plaintiffs—Savage Services Corp. and Savage Inland Marine LLC—owned the vessel.2 Along its journey, the vessel approached the Jamie Whitten Lock, a boat lift operated by the U.S. Army Corps of Engineers (the “Army Corps“).
Things quickly devolved from there. On Savage‘s account, when the barge entered the lock, the lock master “began de-watering the lock chamber without notice or warning to the crew” and without “confirm[ing] the tug and tow were within the miter walls.” At that point, the vessel‘s crew noticed that the “rake end” of one of the barges was caught on the north miter wall. The crew immediately relayed this information to the lock master. But, by then, it was too late. The lock chamber descended nearly sixty feet—and, as the water in the chamber fell, the barge rose
Savage alleges that the Army Corps was “solely responsible” for the accident and that “[t]here was nothing the SAVAGE VOYAGER could have done to avoid the accident.” Savage also says that, as a result of the Army Corps‘s sole negligence, Savage suffered $4 million in damages—mostly due to the time-consuming process of removing oil from the Waterway. Hoping to recover these costs, Savage sued the United States in admiralty, relying in large measure on the Suits in Admiralty Act of 1920. In the SAA, the United States waived its sovereign immunity for most admiralty claims. See
II. The Federal Water Pollution Control Act
Before the Oil Pollution Act of 1990—the law that now governs oil-removal liability—there was the Clean Water Act, more formally known as the Fedеral Water Pollution Control Act Amendments of 1972 (the “FWPCA“). The FWPCA was the cornerstone of a fractured liability scheme. See J.B. Ruhl & Michael J. Jewell, Oil Pollution Act of 1990: Opening a New Era in Federal and Texas Regulation of Oil Spill Prevention, Containment and Cleanup, and Liability, 32 S. TEX. L. REV. 475, 481 (1991) (“The cornerstone of pre-OPA federal oil spill liability law was found in the Federal Water Pollution Control Act[.] Supplementing that central provision in specified, limited contexts were the Trans-Alaska Pipeline Authorization Act, the Deepwater Port Act of 1974, and the Outer Continental Shelf Lands Act[.]“).
As to liability, the FWPCA provided that the “owner or operator of any vessel from which oil . . . is discharged . . . shall . . . be liable to the United States Government for the actual costs . . . for the removal of such oil or substance by the United States Government.”
On top of allowing complete defenses, the FWPCA left the door open for responsible parties to bring contribution claims against third parties: “The liabilities established by this section shall in no way affect any rights which . . . the owner or operator of a vessel . . . may have against any third party whose acts may in any way have caused or contributed to such discharge.”
III. The Oil Pollution Act of 1990
Congress passed the Oil Pollution Act of 1990 in the aftermath of the Exxon Valdez oil spill, which had resulted in more than 11 million gallons of crude oil spilling into Alaska‘s waters. S. REP. NO. 101-99, at 1 (1989). After Exxon Valdez, Congress concluded that “the costs of spilling [oil] and paying for its clean-up and damage is not high enough to encourage greater industry efforts to prevent spills and develop effective techniques to contain them.” S. REP. NO. 101-94, at 3 (1989). Congress also found fault in the “fragmented collection of Federal and State laws providing inadequate cleanup and damage remedies“—along with the “taxpayer subsidies to cover cleanup costs.” Id. at 1. The FWPCA, Congress felt, “set[] inappropriately low limits of liability.” Id. And its revolving fund was entirely inadequate: “Between 1971 and 1982 the United States Government obligated $124 million from the . . . revolving fund, but recovered only $49 million from spillers, for a total expenditure of $75 million in national funds. . . . [S]ince the fund is appropriated from the Treasury, it undercuts budget reduction goals and runs counter to cost internalization policies.” Id. at 3. The “purpose” of the OPA was “to establish a comprehensive system of liability and compensation for damages caused by oil pollution,” H.R. REP. NO. 101-242, pt. 2, at 31 (1989), and to “internalize those costs [associated with oil-spill cleanup]
To effectuate those ends, the OPA—which amends the FWPCA3—sets out a comprehensive scheme that apportions liability for oil-cleanup costs and damages. For starters, the OPA defines the “responsible party” in any oil spill as the “person owning, operating, or demise chartering the vessel.”
In exchange for this initial liability, the OPA offers vessel owners significant financial incentives to encourage them to fully perform their obligations. First, the OPA provides a complete defense to liability “if the responsible party establishes, by a preponderance of the evidence, that the discharge . . . of oil and the
resulting damages or removal costs were caused solely by . . . (1) an act of God; (2) an act of war; (3) an act or omission of a third party . . .; or (4) any combination of paragraphs (1), (2), and (3).”
In addition to supplying complete defenses to liability, the OPA also allows—in a carefully worded provision—responsible vessel owners to seek contribution from other culpable parties: a “person may bring a civil action,” the law says, “for contribution against any other person who is liable or potentially liable under this Act or another law.”
Through the OPA, Congress created the Oil Spill Liability Trust Fund. The Fund‘s resources come from (among other things) (1) environmental taxes on crude oil and certain petroleum products and (2) government collections from specified environmental
IV. The District Court‘s Order
In response to Savage‘s amended complaint, the Government filed a partial motion to dismiss, contending that the United States has not waived its sovereign immunity for Savage‘s “spill removal cost claim.” The Government didn‘t move to dismiss Savage‘s claims for other damages—e.g., its claims for barge-repair, loss-of-use, and lost-cargo costs.5 Savage, in turn, moved for partial summary judgment, seeking an affirmative ruling that the United States has waived its sovereign immunity as to those same oil-removal claims.
The district court granted the Government‘s motion to dismiss and denied Savage‘s motion for summary judgment. As the court put it: “Congress has enacted a specific, detailed statutе assigning responsibility for oil-spill cleanup costs (at the initial payee level, and beyond) that lacks any waiver of sovereign immunity applicable to the events pleaded in the Amended Complaint.” “In so doing,” the district court held, “Congress has expressed its intent to effect an implied repeal of the general sovereign immunity provision in the [SAA] as it pertains to oil-spill cleanup damages.” Savage timely appealed.
STANDARD OF REVIEW
We review the district court‘s order granting the motion to dismiss and denying the motion for summary judgment de novo. See Sun Life Assurance Co. of Can. v. Imperial Premium Fin., LLC, 904 F.3d 1197, 1207 (11th Cir. 2018).
DISCUSSION
This case is hard in part because (at least at first glance) it seems to fall squarely at the intersection between two well-established canons. On the one hand, we are “heirs to a system in which the sovereign, the king, was not amenable to suit.” ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS 281 (2012) [hereinafter READING LAW]. Tracking that tradition, “[a]bsent a
On the other hand, “[c]ourts generally adhere to the рrinciple that statutes relating to the same subject matter should be construed harmoniously if possible, and if not, that more recent or specific statutes should prevail over older or more general ones.” Tug Allie-B, Inc. v. United States, 273 F.3d 936, 941 (11th Cir. 2001) (quoting S. Nat. Gas Co. v. Land, Cullman Cnty., 197 F.3d 1368, 1373 (11th Cir. 1999)). In other words, while recognizing that what‘s new and specific trumps what‘s old and more general, we‘ve also warned that “[t]he conclusion that two statutes conflict . . . is one that courts must not reach lightly.” Miccosukee Tribe of Indians of Fla. v. U.S. Army Corps of Eng‘rs, 619 F.3d 1289, 1299 (11th Cir. 2010). “Courts must first assiduously attempt’ to try to construe two statutes in harmony before concluding that one impliedly repeals the other.”
The problem, as the parties present it, is that these presumptions pull (or seem to pull) in opposite directions in our case. The Government, guided by the presumption against waivers of sovereign immunity, says that the OPA sets out a comprehensive remedial scheme that doesn‘t allow responsible parties to sue the United States. Savage, by contrast, contends that the OPA, especially when read together with the SAA, does create a cause of action against the United States—or (alternatively) that it authorizes responsible parties to bring common-law admiralty claims against the federal government.
“In ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). In our view, the OPA‘s text and structure squarely foreclose the kind of oil-removal claim Savage has advanced here.
I. The OPA Does Not Create a Cause of Action Against the United States
We begin with the easier call: the OPA doesn‘t create a cause of action for oil spillers to seek contribution from the United States. The OPA, recall, provides that “[a] person may bring a civil action for contribution against any other person who is liable or potentially liable under this Act or another law.”
Pushing back, Savage argues that we should interpret the word “State” to include the United States because those terms are defined coextensively in the OPA.6 Savage is right that the OPA provides one definition for both terms. It says:
“United States” and “State” mean the several States of the United States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, American Samoa, the United States Virgin Islands, the Commonwealth of the Northern Marianas, and any other territory or possession of the United States[.]
States,” that includes facilities in Puerto Rico.
First, when Congress intended for a provision to apply to both the states and the United States, it referred to each separately—often pointing expressly to the “United States Government.” See, e.g.,
Second, when Congress waived sovereign immunity in the contribution prоvisions of other statutes, it did so much more explicitly. Take, for instance, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA“)—a strikingly similar statute with a modified strict-liability scheme for (non-oil-related) hazardous spills. CERCLA, like the OPA, defines “United States” and “State” together. See
jurisdiction.“). And, like the OPA, CERCLA provides that “[a]ny person may seek contribution from any other person who is liable or potentially liable.”
And CERCLA‘s not alone on this front. In crafting one provision of the Clean Water Act—housed in the same title of the Code as the OPA—Congress provided thаt “any citizen may commence a civil action on his own behalf . . . against any person . . . including . . . the United States“—again, unambiguously waiving its immunity with respect to civil actions.
these well-hashed sovereign-immunity waivers in the OPA. See generally Pinares v. United Techs. Corp., 973 F.3d 1254, 1262 (11th Cir. 2020) (“Where Congress knows how to say something but chooses not to, its silence is controlling.” (quoting Animal Legal Def. Fund v. U.S. Dep‘t of Agric., 789 F.3d 1206, 1217 (11th Cir. 2015)))).
Fourth, in defining “person” under the OPA, Congress set out a careful list of governmental entities: States, municipalities, political subdivisions of a State.
The OPA, in short, doesn‘t create a cause of action by which oil spillers can seek contribution from the United States for oil-removal costs.
II. The OPA Does Not Provide a Complete Defense to Liability for Governmental Negligence
Nor does the OPA allow a responsible party to escape all liability by pоinting to the federal government‘s negligence. As we‘ve noted, “courts have held that the enumerated defenses of other strict liability schemes are exclusive and should be narrowly construed.” Tug Allie-B, 273 F.3d at 943 n.7 (collecting cases). The OPA, recall, provides a complete defense to liability “if the responsible party establishes, by a preponderance of the evidence, that the discharge . . . of oil and the resulting damages or removal costs were caused solely by . . . (1) an act of God; (2) an act of war; (3) an act or omission of a third party . . . ; or (4) any combination of paragraphs (1), (2), and (3).”
As this list makes pellucid, there is no explicit defense for negligence on the part of the federal government. And, while the OPA does reference “an act or omission of a third party,” we simply cannot construe this exception to strict liability as including the United States. Why? Because a third party is a “party or person besides the two
And we are not alone in saying so. In In re Glacier Bay, 71 F.3d 1447 (9th Cir. 1995), the Ninth Circuit tackled a massive oil-spill action that had been brought under the FWPCA, the OPA‘s predecessor. That statute, in detailing a spiller‘s rights against those “who caused or contributed to [the] discharge,” provided that “[t]he liabilities established by this section shall in no way affect any rights which . . . the owner or operator of a vessel . . . may have against any third party whose acts may in any way have caused or contributed to such discharge.”
We cannot reconcile [the spiller‘s] reading with the structure of the statute. Read as a whole, [the FWPCA] sets out the rights and responsibilities of discharging vessel owners and the United States government vis-a-vis each other. These are the parties of the first and second parts. The term “third party” is used to refer [to] parties other than these two[.]
Id. We reach the same conclusion here.
The OPA‘s amendments to the FWPCA only further support our view that Congress removed governmental negligence as a complete defense to liability. As we have said, the FWPCA expressly allowed vessel owners to recover reasonable oil-removal costs from the United States if the “discharge was caused solely by (A) an act of God, (B) an act of war, (C) negligence on the part of the United States Government, or (D) an act or omission of a third party without regard to whether such act or omission was or was not negligent, or of any combination of the foregoing causes.”
Nonplussed, Savage argues that, even as Congress was removing the governmental-negligence defense, it tacitly (and simultaneously) restored that defense by transforming the United States into a “third party” under the third-party-defense clause. But there are several problems with this theory. For one thing, it violates the surplusage canon by needlessly forcing us to suppose that the FWPCA‘s governmental-negligence defense is (and long has been) redundant given the availability of the third-party defense. Cf. Nat‘l Ass‘n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 669 (2007) (“[W]e have cautioned against reading a text in a way that makes part of it redundant.“). For another, when “Congress acts to amend a statute, we
For all these reasons, we conclude that the OPA includes no complete defense for governmental negligence.
III. The OPA is Exclusive
So where does that leave us? The SAA “broadly waives the Government‘s sovereign immunity” for admiralty claims. Henderson v. United States, 517 U.S. 654, 656 (1996); see also Kasprik v. United States, 87 F.3d 462, 465 (11th Cir. 1996) (“The SAA does not provide a cause of action against the United States but rather constitutes the United States’ limited waiver of sovereign immunity with respect to admiralty suits.“). And the OPA, as we have now learned, is a specific statute that governs liability for oil-spill removals and which does not create a right of action for suits against the United States.8 But that‘s really only half the problem.
The heart of the parties’ disagreement lies here—on this question: is the OPA exclusive? Savage maintains that, even if the OPA may not itself contain a waiver of sovereign immunity, vessel owners may still go after the United States for removal costs and damages by bringing common-law admiralty claims against the Government pursuant to the SAA‘s sovereign-immunity waiver. The Government, for its part, contends that the OPA provides a comprehensive—and exclusive—remedy for oil-spill-removal claims, displacing any cause of action Savage could‘ve brought under the common law (or the SAA). We think the Government has the better side of this argument.
A. A Detailed Statute Preempts General Remedies
As an initial matter, our analysis is governed by “the well-established principle that, in most contexts, ‘a precisely drawn, detailed statute pre-empts more general remedies.‘” Hinck v. United States, 550 U.S. 501, 506 (2007) (quoting EC Term of Years Tr. v. United States, 550 U.S. 429, 433 (2007)).
Imagine a local municipality that promulgates two ordinances. The first provides a cause of action for trespass against any person who encroaches on private land. The second provides a cause of action for trespass against any police officer and outlines a limited set of circumstances in which the cause of action may be asserted—e.g., only when the officer was operating outside of his jurisdiction, was off duty, or was acting in violation of constitutional constraints. We think it beyond peradventure to say that a plaintiff in our city looking to sue a police officer for trespass could assert a claim only under the latter (more specific) ordinance—and not under the general trespass law. Otherwise, what purpose would the second ordinance serve?
And that is pretty much what happened here. In 1990, Congress enacted a detailed—and precisely drawn—statute that governed almost every aspect of an oil-spill cleanup. As we have explained, the OPA assigns initial liability to the vessel owner,
In similar circumstances, courts have routinely reached this same conclusion. Take United States v. Bormes, 568 U.S. 6 (2012), for instance. There, the plaintiff sued the government under the Fair Credit Reporting Act. In doing so, the plaintiff attempted to invoke a waiver of sovereign immunity from a different statute, the Little Tucker Act. The Little Tucker Act, like the SAA, doesn‘t create a cause of action against the federal government—but only waives sovereign immunity for certain “claim[s] against the United States, not exceeding $10,000.”
[O]ur precedents collectively stand for a more basic proposition: Where a specific statutory scheme provides the accoutrements
of a judicial action, the metes and bounds of the liability Congress intended to create can only be divined from the text of the statute itself. . . . Since FCRA is a detailed remedial scheme, only its own text can determine whether the damages liability Congress crafted extends to the Federal Government. To hold otherwise—to permit plaintiffs to remedy the absence of a waiver of sovereign immunity in specific, detailed statutes by pleading general Tucker Act jurisdiction—would transform the sovereign-immunity landscape.
Our case is just the same. The OPA is a “detailed remedial scheme” that “provides the accoutrements of a judicial action.” It carefully balances (and neatly circumscribes) liability for oil-removal claims. See generally
Or take the Supreme Court‘s decision in Brown v. General Services Administration, 425 U.S. 820 (1976). That case required the Court to decide whether Title VII of the Civil Rights Act of 1964 “provides the exclusive judicial remedy for claims of discrimination in federal employment.” Id. at 821. After a deep-dive into the law and its history, the Court determined that the “structure of the [statute] fully confirms the conclusion that Congress intended it to be exclusive and pre-emptive.” Id. at 829. In reaching this result, the Court pointed to the “balance, completeness, and structural integrity” of the statutory scheme and noted that the law “proscribes federal employment
The OPA does all оf those things. As we have said, it prescribes where to sue and when.
OPA). On Savage‘s view, however, a claimant can avoid all of these steps by simply asserting its claims under general admiralty law in federal court. To quote the Supreme Court: “[i]t would require the suspension of disbelief to ascribe to Congress the design to allow its careful and thorough remedial scheme to be circumvented by artful pleading.” Brown, 425 U.S. at 833.
B. The “Notwithstanding” Clause
The OPA‘s text—always a good place to start and end—likewise suggests that the law‘s remedial scheme is exclusive. Cf. READING LAW at 56 (“The words of a governing text are of paramount concern, and what they convey, in their context, is what the text means.“). In assigning liability, the very first (substantive) provision of the OPA says:
Notwithstanding any other provision or rule of law, and subject to the provisions of this Act, each responsible party for a vessel or a facility from which oil is discharged, or which poses the substantial threat of a discharge of oil, into or upon the navigable waters or adjoining shorelines or the exclusive economic zone is liable for the removal costs and damages specified in subsection (b) that result from such incident.
Savage disagrees. In its view, the OPA‘s “savings” clause leaves available to responsible parties certain alternative causes of action, not found in the OPA—like, for instance, the common-law maritime claims Savage has advanced here. The OPA‘s savings clause is fairly straightforward. It reads: “Excеpt as otherwise provided in this Act, this Act does not affect . . . admiralty and maritime law.”
There are a few things to say about this. First, “legislative history is not the law,” and “even those of us who believe that clear legislative history can illuminate ambiguous text won‘t allow ambiguous legislative history to muddy clear statutory language.” Azar v. Allina Health Servs., 139 S. Ct. 1804, 1814 (2019) (cleaned up); see also Ratzlaf v. United States, 510 U.S. 135, 147-48 (1994) (“There are, we recognize, contrary indications in the statute‘s legislative history. But we do not resort to legislative history to cloud a statutory text that is clear.“); Harris v. Garner, 216 F.3d 970, 976 (11th Cir. 2000) (en banc) (“When the import of the words Congress has used is clear, as it is here, we need not resort to legislative history, and we certainly should not do so to undermine the plain meaning of the statutory language.“); Alexander Hamilton, Final Version of an Opinion on the Constitutionality of an Act to Establish a Bank, in 8 THE PAPERS OF ALEXANDER HAMILTON 97, 111 (Harold C. Syrett ed., 1965) (Feb. 23, 1791) (“[W]hatever may have been the intention of the framers of a constitution, or of a law, that intention is to be sought for in the instrument itself[.]“).
Second, the text of the OPA is unambiguous. After all, “except as otherwise provided” does not mean, as the Deepwater Horizon Court supposed, “except as specifically provided otherwise” (whatever that might mean). And the fact is that the OPA has “provided otherwise.” The OPA is a detailed and comprehensive framework for apportioning oil-spill liability. Through its many parts, Congress chose not to afford vessel owners any cause of action against the United States. Quite the contrary: It eliminated, as we have said, a provision—present in the OPA‘s predecessor statute—that would‘ve allowed vessel owners to skirt liability in the case of governmental negligence. And it strayed from similar statutory schemes (like CERCLA and RCRA) that expressly allow for contribution claims against the federal government. The plain import of these unambiguous decisions, then, is that Congress has provided otherwise—by making clear that the Government is not liable for oil-removal costs. And at least one of our sister circuits has adopted this commonsense interpretation of the law—viz., that the OPA‘s savings clause “shows that the admiralty claims that are preserved are those that are not addressed in the OPA.” In re Settoon Towing, L.L.C., 859 F.3d 340, 351 (5th Cir. 2017).
An everyday example might help us clarify this point. Your friend, who is organizing a picnic, sends a group of people some rules, including this one: “Except as otherwise provided in this text message string, you can bring a sandwich to the picnic.” Just before the picnic, your friend texts the group a second rule: “You can bring a turkey bacon sandwich if it has lettuce, tomatoes, and onions.” If you arrive at the picnic with a turkey bacon
C. Other Circuits
While the interplay between the OPA and the SAA presents an issue of first impression across the federal courts, we are not painting on a blank canvas. That‘s because our sister circuits have universally concluded that the OPA embodies the exclusive remedy for oil-removal claims that fall within the statute‘s ambit. In United States v. American Commercial Lines, L.L.C., 759 F.3d 420, 425 (5th Cir. 2014), for example, the Fifth Circuit hеld that the OPA‘s “balanced and comprehensive remedial scheme provides the exclusive remedy for a claimant to recover statutory removal costs from a responsible party.” Id. Why? Because, “when Congress enacts a carefully calibrated liability scheme with respect to specific remedies, ‘the structure of the remedies suggests that Congress intended for the statutory remedies to be exclusive.‘” Id. at 424 (quoting United States v. M/V BIG SAM, 681 F.2d 432, 441 (5th Cir. 1982)). The OPA meets each of those criteria. Nor is the Fifth Circuit alone in saying so. See S. Port Marine, LLC v. Gulf Oil Ltd. P‘ship, 234 F.3d 58 (1st Cir. 2000). In South Port Marine, the First Circuit embarked on “a straightforward inquiry into whether Congress intended the enactment of the OPA to supplant the existing general admiralty and maritime law, which allowed punitive damages under certain circumstances in the area of oil pollution” and “conclude[d] that Congress did so intend.” Id. at 65; see also id. (“Congress intended the OPA to be the exclusive federal law governing oil spills[.]” (cleaned up)). Starting with “the text of the statute itself,” the court found that the “scheme is comprehensive.” Id. “We think,” it said, “that the OPA embodies Congress‘s attempt to balance the various concerns at issue, and trust that the resolution of these difficult policy questions is better suited to the political mechanisms of the legislature than to our deliberative process.” Id. at 66. We agree and thus reject Savage‘s attempt to have us disturb the comprehensive scheme Congress created—and to tip the careful balance Congress designed. See also Ironshore Specialty Ins. Co. v. United States, 871 F.3d 131, 139 (1st Cir. 2017) (“[W]e acknowledged in South Port Marine that the OPA supplants general admiralty and maritime law when the OPA is triggered[.]“).
And those decisions are just the tip of the iceberg. Long before the OPA was on anyone‘s radar, courts—including the Supreme Court—had held that the FWPCA (the OPA‘s predecessor) constituted the exclusive remedy for removal costs and damages. In the Supreme Court‘s words:
Congress’ intent in enacting the [FWPCA] was clearly to establish an all-encompassing program of water pollution regulation. Every point source discharge is prohibited unless covered by a permit, which directly subjects the discharger to the administrative apparatus established by Congress to achieve its goals. The “major purpose” of the [FWPCA] was “to establish a comprehensive
long-range policy for the elimination of water pollution.” S. REP. NO. 92-414, at 95. No Congressman‘s remarks on the legislation were complete without reference to the “comprehensive” nature of the [FWPCA].
City of Milwaukee v. Illinois & Michigan, 451 U.S. 304, 318 (1981) (holding that the FWPCA displaced a common-law nuisance claim);11 see also, e.g., United States v. Dixie Carriers, Inc., 627 F.2d 736, 737 (5th Cir. 1980) (“[W]e conclude that Congress intended for the Federal Water Pollution Control Act (FWPCA) to provide the exclusive legal remedy for the government to recover its oil spill cleanup costs[.]“); Steuart Transp. Co. v. Allied Towing Corp., 596 F.2d 609, 618 (4th Cir. 1979) (“We therefore conclude that [the FWPCA] was designed to replace, rather than to supplement, the judicial remedies developed in the absence of a comprehensive statute. Since the judicial remedies are inconsistent with the statute, the statute provides the sole means for the federal government to recover oil removal costs.“).12
Second, Baker noted that the FWPCA has a “saving clause reserving ‘obligations . . . under any provision of law for damages to any publicly owned or privately owned property resulting from a discharge of any oil.‘” Baker, 554 U.S. at 488 (quoting
Third, as Baker rightly observed, it‘s “hard to conclude that a statute expressly geared to protecting ‘water,’ ‘shorelines,’ and ‘natural resources’ was intended to eliminate sub silentio oil companies’ common law duties to refrain from injuring the bodies and livelihoods of private individuals.” Baker, 554 U.S. at 488-89. Here, the equities are just the reverse: it‘d be hard to conclude that a statute geared to shifting oil-pollution costs from the taxpayer to the oil industry would allow the oil industry to turn around and recover those same costs from the taxpayer. Baker, in short, is neither here nor there. remedy for removal costs. If Congress thought these interpretations were wrong, it could‘ve easily corrected the error by making clear that the OPA was not to be similarly construed. But it didn‘t—precisely because Congress agreed, as we do, that the OPA (like the FWPCA before it) provides the exclusive remedy for oil-removal costs.
D. Policy
Still resisting, Savage says that it would be unfair “to protect the Government from the consequences of its decisions when acting . . . as a tortfeasor that causes millions of dollars of property damage and environmental cleanup costs.” Two thoughts on this. First, it simply isn‘t our place to second-guess the legislature‘s fairness determinations or to supplant its considered judgment with our own. See Mamani v. Berzain, 825 F.3d 1304, 1310 (11th Cir. 2016) (“[U]nless and until the first and third branches of government swap duties and responsibilities, we cannot rewrite statutes.“). Second, there‘s plenty of reason to believe that the first branch did hope to narrowly tailor the taxpayer‘s burden in the event of an oil spill. The OPA, after all, puts the vessel owner first in line to pay any removal costs.
Relying on legislative history, Savage maintains that the OPA was not meant to permanently shift liability from the Government to a vessel owner—but simply (in Savage‘s words) to “close[] a loophole in the patchwork of predecessor statutes whereby the owner of a vessel leaking oil could deny liability long enough to force the Government to coordinate and fund the emergency response to a fast-expanding environmental disaster[.]” As we‘ve said, however, we needn‘t wade into the murky waters of the statute‘s legislative history because “a law is the best expositor of itself.” Pennington v. Coxe, 6 U.S. 33, 52 (1804) (Marshall, C.J.).13 And, through the OPA, Congress exposited itself rather clearly.
Which takes us back to where we started. Savage sees this case through the lens of the repeal-by-implication doctrine, which instructs that “[c]ourts must first ‘assiduously attempt’ to try to construe two statutes in harmony before concluding that one impliedly repeals the other.” Miccosukee, 619 F.3d at 1299 (quoting Tug Allie-B, 273 F.3d at 952 (Black, J., concurring)).
We very much doubt that this implied-repeal lens is the right way to view our case. The Supreme Court has recognized that “the expectation that there would be some expression of an intent to ‘repeal’ is particularly strong in a case . . . in which the ‘repeal’ would extend to virtually every case to which the statute had application.” United States v. United Cont‘l Tuna Corp., 425 U.S. 164, 169 (1976). But the converse is also true: when a highly specific statute narrowly displaces a general one, it‘s not at all clear that the presumption against implied repeal applies. See Harris v. Owens, 264 F.3d 1282, 1296 (10th Cir. 2001) (“The later statute simply addresses one particular application and carves out an exception. We see no repeal-by-implication problem.“); see also 1A SUTHERLAND STATUTORY CONSTRUCTION § 23:16 (“Where a later special or local statute is not irreconcilable with a general statute to the degree that both statutes cannot have a cоincident operation, the general statute is not repealed, and the special or local statute exists as an exception to its terms.“); READING LAW at 183 (explaining that, under the general/specific canon, “the specific provision is treated as an exception to the general rule“). The reasoning behind this interpretive canon is sound: When Congress undermines an entire statute, we tend to view that statute as repealed, and we generally expect Congress to say that it intended so drastic a result. But when the legislature merely carves out a narrow exception to an old provision by addressing a discrete sub-issue in the original statute—think: a law specifically targeting the Carolina northern flying squirrel against the backdrop of the Endangered Species Act—it‘s not at all clear that the legislature is repealing anything. And, in this circumstance at least, we wouldn‘t necessarily expect Congress to say that it was.14
In doing so, the Fourth Circuit concluded that the repeal-by-implication doctrine was inapposite. It distinguished run-of-the-mill implied-repeal decisions by observing that those “cases involve[d] repeals of entire statutes or rules.” Id. at 733 (emphasis added). “By contrast, the effect of the 1999 amendment is highly specific. The amendment does not repeal the general operation of
★★★
Through the OPA, Congress struck a balance between the obligations of oil-vessel owners and the rights those owners might have to seek reimbursement for their oil-removal costs. Whether that balance was the right one, it isn‘t for us to say. After careful review, we AFFIRM.
Notes
And the then-extant federal laws weren‘t doing the trick. The Senate Report noted that, “[b]etween 1971 and 1982 the United States Government obligated $124 million from the Clean Water Act‘s section 311(k) revolving fund, but recovered only $49 million from spillers, for a total expenditure of $75 million in national funds.” Id. The Report also signaled Congress‘s intent to move away from “taxpayer subsidies to cover cleanup costs” and towards “internaliz[ing] those costs within the oil industry and its transportation sector.” Id. at 2. By shifting the burden of cleanup costs onto the oil industry—and by precluding the oil industry from seeking contribution payments from the Government (read: taxpayers)—the OPA seems to further, rather than to frustrate, each of these objectives.
Our decision in Tug Allie-B is on point. In that case, a commercial tugboat “ran aground and collided with coral reefs in the vicinity of Ledbury Reef in Biscayne National Park.” Tug Allie-B, 273 F.3d at 936. The vessel owner filed a claim under the Limitation of Liability Act, which “limits a vessel owner‘s liability for any damages arising from a maritime accident to the post-accident value of the vessel and its pending freight.”
Our case, of course, is all-the-more compelling. While the SAA generally waives sovereign immunity for admiralty claims, the OPA doesn‘t. In enacting a comprehensive framework for oil-spill-cleanup liability, the OPA not only has no explicit waiver of sovereign immunity. It also eliminated a complete defense to liability premised on governmental negligence, and it defined “person“—in stark contrast to similar statutes like CERCLA—as including just about every governmental entity one could think of other than the federal government. In this way, our position is even stronger than it was in Tug Allie-B, where we were left only with “silence” on the part of Congress. As in that case, then, the OPA—the statute that‘s both more specific and more recent—controls.