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sounded in state law. Under the Su- ages actions taken or omitted to be taken acting as agents of and at the direction of premacy Clause of the Constitution, by a person in the course of rendering the federal government, those defendants federal law may preempt state law when care, assistance, or advice consistent could only be held liable for the alleged compliance with both federal and state with the National Contingency Plan or injuries if the federal government could regulations is a physical impossibility otherwise as directed by the President have been held liable if it had engaged or when the state law stands as an ob- relating to a discharge or the substantial in this conduct directly. Since the fed- stacle to the accomplishment and execu- threat of a discharge of oil or a hazardous eral government is clearly immune from tion of the full purposes and objectives substance. such liability, it follows that the clean-up of federal law. Permitting these state This provision, though, has two im- responders are also immune.

law claims to proceed against defendant portant caveats as respects clean-up re- This well-reasoned decision, a case clean-up responders could cause clean- sponders. It does not apply with respect of ? rst impression, has addressed and up responders in the future to refuse to personal injury or wrongful death and overcome the ? nal theoretical obstacle or hesitate to provide their services to it does not apply if the person was gross- to responder immunity that has haunted mitigate the impact of future spills. It ly negligent or engaged in willful mis- clean-up responders since enactment of is precisely this second-guessing of the conduct. In the instant case, plaintiffs’ the Clean Water Act. While district court government’s decisions that would stand complaints included allegations that they decisions have no precedential effect, as an obstacle to federal law. Thus, the suffered personal injury and that the de- this one, rendered by a respected jurist,

The Author doctrine of implied con? ict preemption fendants were grossly negligent. will carry great weight and is expected to prevents these types of claims against resolve the responder immunity question

Dennis L. Bryant is with Maritime Regu- clean-up responders acting at the direc- Conclusion for the foreseeable future.

latory Consulting, and a regular contribu- tion and with the oversight of the federal The court here, though, sidestepped As alluded to by the court, it is of little tor to Maritime Reporter & Engineering government from going forward. these issues, ? nding that implied con- moment that we have the most robust

News as well as online at MaritimePro- ? ict preemption is consistent with the spill response regime in the world if no fessional.com.

CWA Liability Exemption purpose of CWA liability exemption and one will show up to do the work for fear t: 1 352 692 5493

The Clean Water Act includes a pro- going directly to the heart of the matter. of litigation. That fear has now been e: [email protected] vision exempting from liability for dam- It ruled that since the defendants were largely dissipated.

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