concurring separately:

I concur in the court’s opinion, but believe that some of its unintended effects could have been resolved by a clear finding *1067 that Shell’s pipeline is in interstate commerce.

For the purposes of resolving the issues raised by Shell’s commerce clause arguments, the court necessarily assumes that the pipeline is operating in an interstate fashion. This was for reviewing the summary judgment against Shell. But for the purposes of resolving Santa Monica’s preemption arguments, we had to assume that the pipeline was in mirastate commerce.

What I take issue with is the court’s conclusion that the record is unclear on the pipeline’s status as a part of interstate or intrastate commerce. I have no doubts that, as a matter of law, it is interstate and that the Hazardous Liquids Pipeline Safety Act (HLPSA), 49 U.S.C.A. §§ 2001-2014 (Supp.1987), preempts Santa Monica’s safety regulations.

That the pipeline originates from the outer continental shelf (OCS) should be enough to validate this conclusion. See 49 C.F.R. pt. 195, app. A & ex. 7 (1986). The fact that the pipeline connects with other pipelines which terminate in other states seems to me also to be decisive. Id. ex. 4. Moreover, Shell’s pipeline could not really be considered as a “delivery lateral," as this term was used by another appeals court, Southern Pac. Pipe Lines, Inc. v. United States Dep’t of Transp., 796 F.2d 539, 541 (D.C.Cir.1986), when it ruled that the operation in question was intrastate. Id. at 542 . Rather, it seems clear that Shell’s pipeline from Ventura County to the Wilmington refinery is a trunk line, originating from the OCS, its oil already in interstate commerce. The guidelines offered by the HLPSA should be enough to make this determination and no recourse need be made to the “intentionalist” theory which the parties, apparently, believe is controlling.

I would conclude that the pipeline operates in interstate commerce. Moreover, Santa Monica would not be exempted under some “municipal-proprietor” exception to the preemption doctrine, for the same reasons stated by the court in its discussion of why Santa Monica cannot avail itself of the “market participant” exception to the commerce clause.

This case is narrow in its reasoning, as it should be. But it also sounds a clarion call to Congress for action. It is true that Congress has not prevented the disruption of interstate traffic in petroleum products which Santa Monica’s imposition of rent, if it were emulated by every municipality on the pipeline’s course, presents. The only check on this ominous form of over-reaching by local authorities against politically unpopular enterprises, such as oil producers, is the vague notion of proportionality of rent to services provided by the city. Santa Monica did not, I agree, cross the line in this case. But I do have my doubts whether this decision addresses an invitation to like-situated localities in California (or Nevada and Alaska, for that matter), to press the limits of proportionality, and enter the realm of confiscation. Besides increasing prices to consumers of gasoline, the result of all this will be the “Balkanization” of the economy. This is more than a quaint and picturesque phrase describing a hypothetical danger. The Supreme Court intended it as a warning to deter the states from interfering in the national economy. Hughes v. Oklahoma, 441 U.S. 322, 325-26 , 99 S.Ct. 1727, 1730-31 , 60 L.Ed.2d 250 (1979). The danger of exorbitant rents on oil pipeline traffic and the resultant burden to commerce cannot be met in this court; it must be answered by Congress.