Locke

ORDER

The panel has unanimously voted to deny the petitions for rehearing. Judge Browning and Judge O’Scannlain have voted to reject the suggestions for rehearing en banc, and Judge Marquez so recommends.

The full court was advised of the suggestions for rehearing en banc. An active judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused judges in favor of en banc consideration. Fed. R.App. P. 35.

The petitions for rehearing are DENIED and the suggestions for rehearing en banc are REJECTED.

dissenting:

I respectfully dissent from the court’s decision not to rehear this case en banc.

This is the first published appellate decision interpreting the preemptive effect of the Oil Pollution Act of 1990 (OPA 90). The preemptive effect of OPA 90 is an issue of exceptional importance to the coastal states within the Ninth Circuit. See Fed. R.App. P. 35(a)(2) (providing that en banc consideration is appropriate “when the proceeding involves a question of exceptional importance”).

Additionally, although I do not suggest that the Washington regulations necessarily *1221 are invalid, the opinion’s analysis is incorrect in two exceptionally important respects: (1) The opinion places too much weight on two clauses in Title I of OPA 90 that limit OPA 90’s preemptive effect. (2) Portions of the opinion that discuss the Coast Guard regulations are inconsistent with Ninth Circuit and Supreme Court precedent. Those issues warrant en banc consideration even if the opinion’s ultimate result proves to be correct, a question as to which I express no view.

APPLICATION OF OPA 90’S PREEMPTION CLAUSES

Congress enacted OPA 90 in response to the Exxon Valdez oil spill. OPA 90 combined…