Huron Portland Cement Co. v. City Of Detroit		
362 U.S. 440 (U.S. Sup. Ct. 1960)
Stewart, J. This appeal from a judgment of the Supreme Court of Michigan draws in question the constitutional validity of certain provisions of Detroit’s Smoke Abatement Code as applied to ships owned by the appellant and operated in interstate commerce.
The appellant is a Michigan corporation, engaged in the manufacture and sale of cement [and] maintains a fleet of five vessels which it uses to transport cement...to distributing plants located in various states bordering the Great Lakes. Two of the ships, the S. S. Crapo and the S. S. Boardman, are equipped with hand-fired Scotch marine boilers. While these vessels are docked for loading and unloading it is necessary, in order to operate deck machinery, to keep the boilers fired and to clean the fires periodically. When the fires are cleaned, the ship’s boiler stacks emit smoke which in density and duration exceeds the maximum standards allowable under the Detroit Smoke Abatement Code.... The Detroit ordinance contains provisions making it unlawful to operate appellant’s equipment without a [air quality] certificate from the city, [and the ships’ boilers cannot meet certification standards]. Structural alterations would be required in order to insure compliance with the Code.
Criminal proceedings were instituted...for violations of the city law during periods when the vessels were docked at the Port of Detroit.... [In this appeal] two basic arguments are advanced. First, it is asserted that since the vessels and their equipment, including their boilers, have been inspected, approved and licensed to operate in interstate commerce in accordance with a comprehensive system of regulation enacted by Congress, the City of Detroit may not legislate in such a way as, in effect, to impose additional or inconsistent standards. Secondly, the argument is made that even if Congress has not expressly pre-empted the field, the municipal ordinance “materially affects interstate commerce in matters where uniformity is necessary.” We have concluded that neither of these contentions can prevail, and that the Federal Constitution does not prohibit application to the appellant’s vessels of the criminal provisions of the Detroit ordinance.... 
The ordinance was enacted for the manifest purpose of promoting the health and welfare of the city’s inhabitants. Legislation designed to free from pollution the very air that people breathe clearly falls within the exercise of even the most traditional concept of what is compendiously known as the police power. In the exercise of that power, the states and their instrumentalities may act, in many areas of interstate commerce and maritime activities, concurrently with the federal government. The basic limitations upon local legislative power in this area are clear enough. The controlling principles have been reiterated over the years in a host of this Court’s decisions. Evenhanded local regulation to effectuate a legitimate local public interest is valid unless preempted by federal action, or unduly burdensome on maritime activities or interstate commerce. In determining whether state regulation has been preempted by federal action, “the intent to supersede the exercise by the State of its police power as to matters not covered by the Federal legislation...is not to be implied unless the act of Congress fairly interpreted is in actual conflict with the law of the State.” 
In determining whether the state has imposed an undue burden on interstate commerce, it must be borne in mind that the Constitution when “conferring upon Congress the regulation of commerce,... never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country.... But a state may not impose a burden which materially affects interstate commerce in an area where uniformity of regulation is necessary....
Federal inspection of steam vessels was first required in 1838, 5 Stat. 304, and the requirement has been continued ever since.... It is unlawful for a vessel to operate without...a certificate.... As is apparent on the face of the legislation, however, the purpose of the federal inspection statutes is to insure the seagoing safety of vessels subject to inspection.... The thrust of the federal inspection laws is clearly limited to affording protection from the perils of maritime navigation.
By contrast, the sole aim of the Detroit ordinance is the elimination of air pollution to protect the health and enhance the cleanliness of the local community. Congress recently recognized the importance and legitimacy of such a purpose [in the first CAA] in 1955.... The Senate Committee Report [said]:
“The committee recognizes that it is the primary responsibility of State and local governments to prevent air pollution. The bill does not propose any exercise of police power by the Federal Government and no provision in it invades the sovereignty of States, counties or cities.” S. Rep. No. 389, 84th Cong., 1st Sess. 3. 
We conclude that there is no overlap between the scope of the federal ship inspection laws and that of the municipal ordinance here involved. For this reason we cannot find that the federal inspection legislation has pre-empted local action. To hold otherwise would be to ignore the teaching of this Court’s decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists. 
An additional argument is advanced, however, based...upon the fact that the appellant’s vessels were actually licensed by the national government. It is asserted that the vessels have thus been given a dominant federal right to the use of the navigable waters of the United States, free from the local impediment that would be imposed by the Detroit ordinance.... 
 
A state may not exclude from its waters a ship operating under a federal license.... The mere possession of a federal license, however, does not immunize a ship from the operation of the normal incidents of local police power, not constituting a direct regulation of commerce. Thus, a federally licensed vessel is not, as such, exempt from local pilotage laws, or local quarantine laws, or local safety inspections, or the local regulation of wharves and docks.... The Detroit ordinance requires no more than compliance with an orderly and reasonable scheme of community regulation....
The claim that the Detroit ordinance...imposes as to the appellant’s ships an undue burden on interstate commerce needs no extended discussion. State regulation, based on the police power, which does not discriminate against interstate commerce or operate to disrupt its required uniformity, may constitutionally stand. It has not been suggested that the local ordinance, applicable alike to “any person, firm or corporation” within the city, discriminates against interstate commerce as such. It is a regulation of general application, designed to better the health and welfare of the community. And while the appellant argues that other local governments might impose differing requirements as to air pollution, it has pointed to none. The record contains nothing to suggest the existence of any such competing or conflicting local regulations. We conclude that no impermissible burden on commerce has been shown. 
The judgment is affirmed. 

Douglas, J., dissenting, joined by Frankfurter, J. ...Here we have a criminal prosecution against a shipowner and officers of two of its vessels for using the very equipment on these vessels which the Federal Government says may be used. At stake are a possible fine of $100 on the owner and both a fine and a 30-day jail sentence on the officers [per offense]...and each day a violation is permitted to exist constitutes a separate offense....
Under the Detroit ordinance a [municipal] certificate of operation would not issue for a hand-fired Scotch marine boiler, even though it had been approved by the Coast Guard. In other words, this equipment approved and licensed by the Federal Government for use on navigable waters cannot pass muster under local law.
If local law required federally licensed vessels to observe local speed laws, obey local traffic regulations, or dock at certain times or under prescribed conditions, we would have local laws not at war with the federal license, but complementary to it. [But] state rules which change...the federal standards for the structure and equipment of vessels...may be deemed to fall within the class of regulations which Congress alone can provide. For example, Congress may establish standards and designs for the structure and equipment of vessels, and may prescribe rules for their operation, which could not properly be left to the diverse action of the States. The State of Washington might prescribe standards, designs, equipment and rules of one sort, Oregon another, California another, and so on.... The boats of appellant...have credentials good for any port; and I would not allow this local smoke ordinance to work in derogation of them. The fact that the Federal Government in certifying equipment applies standards of safety for seagoing vessels, while Detroit applies standards of air pollution seems immaterial. Federal pre-emption occurs when the boilers and fuel to be used in the vessels are specified in the certificate. No state authority can, in my view, change those specifications. Yet that is in effect what is allowed here.... By what authority can a local government fine people or send them to jail for using in interstate commerce the precise equipment which the federal regulatory agency has certified and approved?... 

COMMENTARY & QUESTIONS
1. Huron Portland raises two different federalism arguments. Viewed analytically, the decision raises two separate arguments of attack against the local Detroit air pollution ordinance: that a federal statute preempts the local law, and that the local law puts an impermissible burden on interstate comerce, i.e. violates the so-called “Dormant Commerce Clause.” Which does the Court spend most time on? Which is most relevant in these circumstances?
2. Preemption: understanding federal preemption of state or municipal law. As noted in the coursebook at page 270 ff., the easiest case of preemption is express preemption, where Congress specifically says that the federal rule overrides all other rules. There can also be implied preemption where Congress implicitly shows an intent to override, most typically when it appears that Congress was trying to manage an entire problem area, leaving no room for state or local laws (also called field preemption). If a state or local law conflicts with a federal law—if you cannot simultaneously comply with both—then there is conflict preemption. 
In Huron Portland, does there appear to be any express or implied intent of Congress to preempt state or local pollution laws? Seems not. And the federal boiler safety law did not purport to “occupy the entire field” of all forms of regulation of ship operations. So what is a “conflict”? Is the S.S. Crapo able to comply simultaneously with both the federal and the city laws? Yes, by installing cleaner boilers, or never again coming to Detroit. If those compliance actions are too impractical or expensive, does that excessive burden create a preemption conflict? Is the federal license of ship boiler safety an affirmative authorization that those ships can go wherever they want, unhindered by any kind of lower-level law? 
The Court majority notes that such boiler-licensed ships can be subject to local piloting requirements, local health quarantine laws, and local safety laws. Does air pollution fit into that category? Could “local safety laws” include local boiler safety laws? The majority makes much of the fact that the Detroit ordinance’s purpose, air quality, is different from the federal law’s purpose, boiler safety. Just having a state law and a federal law with the same purpose doesn’t automatically mean they conflict: A statewide 55MPH law does not conflict with a nationwide 65MPH law. And just because a local government claims a different purpose from the federal law does not automatically mean that the two laws do not conflict. But the different purposes of laws do seem to make some difference: A state or local law putting a limit on air pollution does not seem to be in conflict with a federal law putting a limit on the riskiness of boilers. They both set maximum limits in their areas, but don’t guarantee that other valid limits won’t apply.
The more relevant and tougher question is one neither opinion in Huron Portland really deals with: what if one local air pollution ordinance is tougher on ships than all others? In that case there is an inefficient lack of uniformity—as ships on the Great Lakes could find different smoke standards for harbors in Toledo, Buffalo, Toronto, Cleveland, Chicago, Milwaukee, Duluth, etc.—and in effect all ships that want to use Detroit harbor would be held to redesign their boilers to suit Detroit’s high standards. 
This raises the specter of an unconstitutional burden on interstate commerce.....
2. Unconstitutional burdens on interstate commerce: the Dormant Commerce Clause.  Even if a local law is not preempted by a congressional statute, it can be ruled unconstitutional if it places too great a burden on interstate commerce. The Detroit ordinance could be struck down under this “dormant commerce clause” test in several ways: (1) if the local government lacks authority over the regulated subjects (for example the local law is being improperly extended extra-territorially), (2) if the local law has a poison purpose, typically discriminatory, protectionist, economic favoritism, an intent to favor local commerce over other commerce, and (3) even if it has a benign purpose, if it imposes too much burden on interstate trade and companies and individuals involved therein.
Which of the three kinds of DCC argument most closely addresses the Huron Portland setting? 
As to the third test, it certainly is possible to argue that the local law imposes a substantial burden on Great Lakes commerce. Do the opposing opinions explore this? The majority dismissively focuses only on the uniformity issue, and notes that there is no evidence of other harbor cities levying different standards. The dissent opposes the local air pollution ordinance on grounds that it “burdens the federal license,” not that it “burdens interstate commerce.”
Even if the Court had focused on the burden on commerce, how much is too much? Would all conflicts between local laws that imposed a 20% burden on interstate commerce, for example, have to be treated the same? One local law might be protecting local public safety, and another merely local aesthetics like coastal vistas. Shouldn’t there be a balancing that weighs them differently? The Pike test, noted in the coursebook at page 280, is the answer: In Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970), the Court said—
Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.... If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities....
How does the Detroit smoke ordinance fare when weighed in a thoughtful Pike balancing?