January 2012

FactCheck.org argued that the Jones Act, which ordinarily bans both foreign ships and foreign crews from working in U.S. waters, did not interfere with foreign assistance in cleaning up the massive oil spill at BP’s Deepwater Horizon.  Factcheck readers like Jarrett Wampler disagreed, and called FactCheck’s reasoning flawed.  As he notes:

Newspapers like the Wall Street Journal, and even Democrats in Congress, have criticized the Obama Administration for refusing to waive those Jones Act restrictions (as the law lets the President do) to take advantage of foreign aid. Canada’s Financial Post has chronicled how the Administration rejected valuable expertise, and delayed vital assistance in fighting the spill, by many weeks, simply because of its foreign origin (so, too, has a federal news source, Voice of America, which said Dutch help was rejected ‘partly because of the Jones Act, which restricts foreign ships from certain activities in U.S. waters’).

But in a June 23 analysis, ’Oil Spill, Foreign Help, and the Jones Act,’ FactCheck made it sound like only right-wingers like Sarah Palin viewed the Jones Act as an obstacle to cleaning up the Gulf. It also claimed that the Jones Act couldn’t be a barrier to aid, because the federal government hasn’t cited the Jones Act in specifically rejecting many offers of foreign aid. (Although it apparently cited it again more recently in rejecting an offer of foreign assistance).  That claim made little sense, since a ban on a category of foreign assistance can make even offering the assistance pointless, resulting in few if any offers. Why would you even offer someone something they don’t want, or may not even be able to accept — even if you would otherwise be perfectly happy to give it to them?  As I noted in a June 29 letter in response to FactCheck.Org’s claim (“Gulf Spill Cleanup,” in “FactCheck Mailbag, Week of June 22-28):

‘Many respected newspapers, such as the Wall Street Journal and Canada’s Financial Post, as well as Voice of America News, have stated that the U.S. government rejected some offers of foreign assistance in cleaning up the Gulf oil spill. Canadian environmentalist Lawrence Solomon says the U.S. rejected critically-important Dutch expertise. Moreover, the Obama Administration has issued no general waiver of the Jones Act, which bars foreign crews and ships from working in U.S. waters or moving goods between U.S. ports.. . . .’If the Jones Act has not been waived, as FactCheck concedes, one would not expect many offers of assistance to be made in the first place, since accepting such offers would generally be forbidden. Does FactCheck.Org really expect a foreign country to hire an American lobbyist or lawyer for big bucks to try and convince the government to waive the Act to accept its help?’

The Jones Act certainly restricts foreign ships and crews in U.S. waters.  A ban or restriction can be a significant barrier even if it seldom leads to formal rejections, by discouraging offers or applications from being made in the first place, or leading to tentative offers being dropped prior to a formal rejection.  The Supreme Court recognized this principle in Teamsters v. United States, 431 U.S. 324, 365-66 (1977).  In that case, it held that even non-applicants could sue an employer for discrimination, where the policy of discrimination discouraged minorities from even applying.  It approvingly cited a federal appeals court’s observation that “as a practical matter . . . a member of the affected class may well have concluded that an application . . . was not worth the candle.”  The Supreme Court rejected  “the company’s assertion that a person who has not actually applied for a job can never be awarded” relief, noting that “A consistently enforced discriminatory policy can surely deter job applications from those who are aware of it and are unwilling to subject themselves to . . . explicit and certain rejection.  If an employer should announce his policy of discrimination by a sign reading ‘Whites Only’ on the hiring-office door, his victims would not be limited to the few who ignored the sign and subjected themselves to personal rebuffs. The same message can be communicated to potential applicants more subtly but just as clearly by an employer’s actual practices,” such as ”his responses to casual or tentative inquiries, and even by the . . . composition of . . . his work force . . . When a person’s desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application.”  A similar principle exists in administrative and constitutional law, where regulations can be challenged even by people who did not apply under them, if an application would have been futile under the regulation. See, e.g., Grid Radio v. FCC, 278 F.3d 1314, 1319 (D.C. Cir. 2002); Pihl v. Massachusetts Dep’t of Educ., 9 F.3d 184, 190 (1st Cir.1993).

On the other hand, the Jones Act was not the only potential obstacle to foreign aid in cleaning up the oil spill, and I may well have inadvertently overstated its significance in making the federal government so slow to accept many forms of foreign assistance.  A French offer of assistance was apparently rejected due to environmental regulations, for example.  Expansive interpretations of environmental regulations also seem to have been involved in the federal government delaying the use of barges to clean up the Gulf of Mexico by sucking thousands of gallons of oil out of Louisiana’s oil-soaked waters.  Such regulations have impeded even domestic clean-up efforts. (A TV station in New Orleans reported that “the federal government is shutting down the dredging that was being done to create protective sand berms in the Gulf of Mexico.”)   The news stories attributing some rejections of foreign assistance to the Jones Act do not say it was the basis for all the rejections (Voice of America News noted that ”The Dutch also offered assistance with building sand berms (barriers) along the coast of Louisiana to protect sensitive marshlands, but that offer was also rejected, even though Louisiana Governor Bobby Jindal had been requesting such protective barriers.”  Moreover, a CNBC commentator says that an example I earlier cited from a Voice of America News report of Dutch help being rejected, which the VOA attributed to the Jones Act, actually involved a rejection by the EPA instead.)

Moreover, the Jones Act is less likely to be an obstacle going forward.  After weeks of delay, the federal government finally accepted various offers of foreign assistance.  And while the administration has failed to provide a general waiver of the Jones Act, it has now belatedly provided for reciprocal approval of skimmers, and set up an expedited process for applicants to seek individualized waivers.