[*PG119]THE BILL OF ATTAINDER CLAUSE: A NEW WEAPON TO CHALLENGE THE OIL POLLUTION ACT OF 1990

Alison C. Carrigan*

Abstract:  SeaRiver Maritime, Exxon Oil Company’s United States shipping subsidiary, recently challenged section 5007 of the Oil Pollution Act of 1990 as a bill of attainder. SeaRiver Maritime is the owner and operator of the former Exxon Valdez, which was renamed the SeaRiver Mediterranean following the Valdez’s infamous spill in Alaska’s Prince William Sound in 1989. SeaRiver Maritime argued that section 5007, which prohibits any vessel that has spilled more than one million gallons of oil into the marine environment from ever re-entering Prince William Sound, is an unconstitutional legislative punishment, and that this portion of the Oil Pollution Act was meant to apply only to the SeaRiver Mediterranean. This Comment examines the Oil Pollution Act’s primary provisions and the Act’s Prince William Sound provisions, which include section 5007. Further, this Comment explains the reasons for the constitutional prohibition on bills of attainder and the modern analysis to which courts subject legislation challenged under the Bill of Attainder Clause. Finally, this Comment argues that SeaRiver Maritime’s claim fails both prongs of the Supreme Court’s bill of attainder analysis and that section 5007 is legal and valid as enacted.

Introduction

In 1990, Congress passed the Oil Pollution Act (OPA).1 OPA consolidated the various existing federal liability provisions into one statute, providing cleanup authority, penalties, and a liability scheme for oil pollution.2 The statute resulted from a fifteen-year effort to enact comprehensive oil pollution legislation and response to a number of [*PG120]oil spills in 1989 and 1990, including the infamous Exxon Valdez oil spill.3

In addition to the enactment of OPA, the Exxon Valdez oil spill had other significant legal impacts. Exxon Corporation, Alaska, and the United States entered into a $1 billion settlement to dismiss all civil and criminal claims surrounding the spill.4 While this consent decree should have ended the litigation between the parties, Exxon’s shipping subsidiary has recently brought claims in federal district courts, alleging in part, that section 5007 of OPA, is an unconstitutional bill of attainder.5

This question is an interesting one, since the protection from bills of attainder is found in the text of the Constitution and offers a potentially powerful means of protecting individual rights against arbitrary or punitive legislative action.6 Bills of attainder have been found in laws that prevented Communists from being part of labor unions7 and in statutes that specifically mentioned individuals as subversive and unfit to work for the federal government.8 The United States Supreme Court’s most comprehensive articulation of its test for bills of attainder is set out in Nixon v. Administrator of General Services.9 According to that test, when a law is challenged as a bill of attainder, it is subjected to a two-part inquiry, examining the law for both specificity and punishment.10 Since Nixon, courts have expanded upon the punishment prong of the analysis so that if a law has a legitimate nonpunitive purpose, it can survive a bill of attainder challenge.11 The importance of this element has gained a firm foothold in the federal circuit courts, where the weapons and telecommunications industries have challenged laws as violations of the Bill of At[*PG121]tainder Clause.12 As a result, legislation so specific that it names companies and imposes a legislative burden on them can still stand on the basis that it also furthers what the court perceives to be a nonpunitive legislative purpose.13

SeaRiver Maritime Financial Holdings (SeaRiver Maritime), Exxon’s U.S. shipping subsidiary, has made a bill of attainder challenge to section 5007 of OPA, which prevents any vessel that has spilled more than one million gallons of oil into the marine environment from ever re-entering Prince William Sound, Alaska.14 Given that OPA’s overall purpose is to set up a statutory scheme that reduces the likelihood of future oil spills and to create a liability structure that ensures that spillers will fully compensate those affected by oil spills, the challenge has little chance of success.15 While SeaRiver Maritime’s specific bill of attainder challenge is not presently before any tribunal,16 its claims bear discussion. This Comment argues that SeaRiver Maritime’s claim fails both prongs of the Supreme Court’s bill of attainder analysis and that section 5007 should be upheld.

Section I recounts the causes of the Exxon Valdez spill and the impacts of its aftermath on the environment. Section II discusses how the primary provisions of the Oil Pollution Act of 1990 drastically changed the landscape for oil pollution prevention, cleanup, and liability. Further, this Section outlines OPA’s Prince William Sound provisions, remedies directed specifically to the region most dramatically affected by the Exxon Valdez spill. Section III details the litigation surrounding the spill, focusing closely on the recent legal battles between the United States government and SeaRiver Maritime, an Exxon shipping subsidiary. Section IV explains the reasons for the constitutional prohibition on bills of attainder and the modern analysis to which courts subject legislation challenged under the Bill of Attainder Clause. Section V suggests the result to be reached should a [*PG122]court hear SeaRiver Maritime’s attack on OPA as a violation of the Bill of Attainder Clause in the future.

I.  The Exxon Valdez Oil Spill

The story of the Exxon Valdez begins in San Diego in 1986. Exxon Shipping Company commissioned the construction of the 987-foot tanker vessel specifically to transport crude oil from Alaska to refineries in the East Bay and in Southern California.17 The newest, best-equipped ship in Exxon’s fleet was named for Valdez, Alaska, making it the pride of the town that sits at the end of the 800-mile Alaska oil pipeline.18 Three years later, on March 24, 1989, the pride of Valdez was transformed into shock as the nation witnessed the worst oil spill in United States history when the Valdez ran aground on Bligh Reef in Prince William Sound.19 By the time it was over, the Exxon Valdez had spilled almost eleven million gallons of oil into the sea, creating a slick big enough to reach from Cape Cod to North Carolina.20

The nation’s horror magnified as the truth about the events leading up to the oil spill came to light.21 The tanker had maneuvered around ice floes on auto-pilot, accelerating her speed as she moved out of her designated navigation route and into the in-bound shipping lanes.22 Furthermore, Captain Joseph Hazelwood had been drinking within two hours of the Valdez’s departure,23 a violation of Coast Guard regulations prohibiting officers from drinking alcohol [*PG123]within four hours of embarking on ship.24 Hazelwood had also left third mate Gregory Cousins in charge of the bridge.25 Cousins was not only unqualified to operate the vessel on his own,26 but Coast Guard procedures also dictated that two officers be present on the bridge in dangerous conditions.27 The Exxon Valdez’s twenty-member crew later testified that they were exhausted, having worked an average of 140 hours of overtime a month per person.28

To complicate matters, the response to the accident was simply too slow.29 In 1981, Alyeska Pipeline Service Company, a consortium of seven oil companies including Exxon, had dismissed its round-the-clock emergency oil response team, leaving Valdez Harbor and Prince William Sound unprepared for oil spills.30 As a result, cleanup efforts were severely delayed, and the barge carrying 50,000 pounds of much-needed cleanup equipment did not arrive at the accident scene until fourteen hours after the grounding.31 There was also confusion as to whether Exxon, the state of Alaska, or the federal government was to direct the cleanup; whether chemical dispersants could be used; and what steps were to be taken to stabilize and empty the remaining crude oil from the punctured vessel.32 As a result, Exxon squandered the calm seas and weather during the first two days following the spill, in which the oil could have been effectively encircled with booms and scooped up by skimmers.33

The consequences of the accident were horrible, but perhaps even more tragic was the accident’s preventable nature.34 The oil in [*PG124]the water wreaked havoc on seventeen bird and animal species, only two of which have recovered to date.35 Some of these species had important commercial value.36 For example, the spill affected all levels of the fishing industry, especially the commercial fishermen, salmon hatcheries and local canneries.37 The spill had consequences for more than just commercial interests.38 Subsistence use of wild resources was an important aspect of the economy, culture, and way of life of many families within the Alaskan native communities before the spill.39 After the spill, many Alaskan natives ceased to eat species from the sea out of fear of contamination throughout the food chain.40

Throughout the rest of 1989 and into 1990, oil spills dominated the nation’s consciousness. In June 1989, the World Prodigy spill into Narragansett Bay off the coast of Rhode Island, the President Rivera spill into the Delaware River, and the Rachel-B spill into the Houston Ship Channel all occurred in a twenty-four period.41 In June 1990, the supertanker Mega Borg exploded and burned in the Gulf of Mexico while transferring its cargo to another ship.42 This incident created a slick thirty miles wide and eight miles long off the shore of Galveston, Texas, and killed four crewmembers.43 These spills led to the conclu[*PG125]sion that the unsafe transportation of oil was a national problem that required a serious remedy.44

II.  The Oil Pollution Act of 1990

A.  OPA’s Primary Provisions: Liability, Prevention, and Compensation

While these accidents created a fresh public awareness of the dangers inherent in transporting oil, Congress had been searching for a consensus on oil pollution legislation since 1976.45 For almost fifteen years, Congress directed its efforts at the consolidation of oil spill response mechanisms under the various federal laws already in place.46 These federal laws included section 311 of the Federal Water Pollution Control Act (Clean Water Act or CWA),47 the Deepwater Port Act of 1974 (DPA),48 the Trans-Alaska Pipeline Authorization Act [*PG126](TAPAA),49 and the Outer Continental Shelf Lands Act Amendments of 1978 (OCSLAA).50 This patchwork of legislation also had to coordinate with state laws, international conventions, and other federal environmental laws.51

The CWA was the primary piece of legislation applicable to oil spills prior to the passage of the OPA, but the CWA historically provided only partial protection.52 The legislative history of OPA cited the CWA’s gross inadequacy in dealing with spiller responsibility for cleanup expenses and the inability of its revolving fund to cover the costs of large spills like that of the Exxon Valdez.53 The DPA, TAPAA, and OCSLAA imposed greater liability and permitted wider recovery than a statute of general application like the CWA.54 However, they were also considered deficient because of uneven liability standards and a scope of coverage for cleanup costs and damages that applied only to the activities that each individual law covered.55

Ironically, oil spill legislation was once again introduced in Congress just one week before the Valdez spill.56 Following the oil spills in Narragansett Bay, the Delaware River, the Houston Ship Channel, and

[*PG127]the Gulf of Mexico during March and June 1989, Congress was at last ready to take action and come to an agreement.57 The Exxon Valdez tragedy provided the necessary catalyst for resolving congressional differences and the passage of a comprehensive bill.58

The result was OPA,59 a comprehensive oil spill liability, response, and compensation statute.60 The 1990 law consolidated the various federal liability provisions into one statute, providing cleanup authority, penalties, and liability for oil pollution.61 The primary provisions of OPA begin with a “polluter pays” policy that extends liability to all responsible parties,62 increases the limits of liability for cleanup costs,63 and expands the types of damages recoverable to governments and private parties.64 The statute created a single fund to pay for oil removal and damages, replacing the funds created under DPA, TAPAA, and OCSLAA65 with the federally maintained Oil Spill Liability Trust Fund.66 OPA also increased the role of the federal government in pollution cleanup and compensation by federalizing these operations.67 Prevention measures became a part of OPA’s federal scheme, [*PG128]by requiring contingency planning,68 double hulls,69 and a series of personnel licensing measures.70 Finally, OPA permitted states to supplement its provisions with their own liability and compensation schemes.71

B.  OPA’s Prince William Sound Provisions

While the provisions concerning liability, cleanup, and prevention constitute the heart of OPA, OPA’s Prince William Sound provisions72 are also important because they raise significant constitutional issues in the context of their effect on Exxon and its subsidiary, SeaRiver Maritime.73 Whereas OPA addresses oil spill liability, prevention, and cleanup on the national scale, the Prince William Sound provisions concern the regional problems and consequences of the Exxon Valdez oil spill.74 The impact of the Exxon Valdez accident, a spill [*PG129]that introduced almost eleven million gallons of oil into one of America’s most pristine environments, is evident throughout the legislative history of OPA.75 Given the circumstances surrounding the accident, including an over-tired crew, a captain under the influence of alcohol, and an uncoordinated cleanup, the legislative history suggests that Congress hoped to create a direct remedy for some of the more dire consequences of the accident through the enactment of the Prince William Sound provisions.76

First, OPA established the Prince William Sound Oil Spill Recovery Institute to conduct research and carry out education and demonstration programs.77 The purpose of these programs was to identify and develop the best available techniques, equipment, and materials for dealing with oil spills in arctic and subarctic environments, and to complement the efforts of federal and state governments in understanding the long-range effects of oil spills on Prince William Sound’s environment.78 OPA also created two programs to involve the oil industry, the government, and local communities in a partnership responsible for the environmental monitoring of the terminal facilities in Prince William Sound and Cook Inlet.79 The statute established several different associations to carry out these environmental monitoring programs, including: an Oil Terminal Facilities and Oil Tanker Operations Association, designed to monitor the operation and maintenance policies of oil terminals and crude oil tankers;80 and a Regional Citizens’ Advisory Council81 with representatives from virtually every segment of the population to provide environmental monitor[*PG130]ing,82 and to review and assess measures for oil spill prevention and response.83

In addition to the establishment of advisory councils and scientific programs, the Prince William Sound provisions introduced measures directed at specific aspects of the Exxon Valdez accident. Congress ordered the installation of a navigation light on Bligh Reef84 and the installation of equipment to track the movements of tanker vessels through Prince William Sound with the ability to alert tracking personnel when tankers departed from designated navigation routes.85 The provisions also directed tanker and facility response plans to provide for oil spill containment and removal equipment in nearby communities,86 the establishment of an oil spill removal organization at appropriate locations in Prince William Sound,87 and training, practice exercises, and periodic testing of equipment for oil removal, to address the lack of available equipment after the Valdez spill.88

Finally, the most dramatic, and perhaps most drastic, provision, section 5007 states that all tank vessels that have spilled more than one million gallons of oil into the marine environment after March 22, 1989, are prohibited from operating in Prince William Sound.89 When the bill went into conference committee, Senator Ted Stevens of Alaska inserted this particular provision, and it passed with no debate or discussion.90 At the time OPA was signed into law, no other vessel fulfilled the conditions set out in the statute, nor has any other vessel met them since, making this provision of the federal law applicable to only the former Exxon Valdez.91

[*PG131] President George Bush signed OPA into law on August 18, 1990.92 The outcome for the United States has been positive.93 The law’s liability and compensation scheme fundamentally changed the way the United States manages oil spill prevention and response, and is credited with reducing the risk of massive tanker spills.94 However, OPA’s aftereffects continue to take their toll on Exxon and its subsidiaries.95

III.  The Legal Consequences of the Exxon Valdez Spill and the Enactment of OPA

A.  Exxon Settles Its Litigation

For Exxon, the consequences of the Valdez spill included not only the passage of OPA, but also various other financial and legal ramifications.96 The corporation gave the Valdez a $30 million overhaul, and dispatched the vessel to the Mediterranean Sea to shuttle Middle Eastern oil to various ports.97 It was back in service under the name Exxon Mediterranean about the same time that OPA was signed.98 A few years later, the vessel was renamed again, this time becoming the SeaRiver Mediterranean in acknowledgement of its new owner, Exxon’s United States shipping subsidiary, SeaRiver Maritime Financial Holdings.99

In September 1991, one year after OPA was passed, Exxon entered into a consent decree with the United States and Alaska, settling all civil and criminal matters resulting from the Valdez spill for $1 billion.100 A federal jury in Anchorage awarded thousands of fishermen, [*PG132]natives, and property owners a larger punitive damage verdict of $5.3 billion against Exxon in 1994.101 The verdict was compensation for the economic losses of thousands of native villagers, fisherman, and property owners who were harmed by the spill.102

B.  The SeaRiver Litigation: Texas, the District of Columbia, and Alaska

Despite the consent decree, the litigation between the United States and Exxon continued.103 In 1996, SeaRiver Maritime brought suit in federal district court in Houston, Texas, seeking a declaratory judgment that section 5007 of OPA is unconstitutional.104

SeaRiver Maritime alleged that section 5007 is an unconstitutional bill of attainder because the SeaRiver Mediterranean is the only vessel in the United States to which section 5007 applies, both now and when the statute was passed in 1990.105 Further, SeaRiver Maritime argued that the statute effectively bars the SeaRiver Mediterranean from participating in any trade from Alaska to other U.S. ports, thus thwarting the purpose for which the vessel was originally constructed.106 Among SeaRiver Maritime’s claims was that OPA bars the SeaRiver Mediterranean from Prince William Sound, so that she has had no access to Port Valdez.107 Not only is the SeaRiver Mediterranean in fine mechanical condition after her 1990 overhaul, but her identical [*PG133]sister ship, SeaRiver Long Beach, currently operates in Prince William Sound.108 According to SeaRiver Maritime, prohibiting the vessel from operating in the Prince William Sound has diminished the value of the vessel and resulted in considerably lower profit margins than would be possible on the Alaska run.109 As a result, operation of the vessel in the Middle East has forced the SeaRiver Mediterranean to face far more competition than she would have in the American Pacific, making her much less cost efficient.110

In defense, the government asserted that venue in Houston was improper and that the District Court of Alaska was the appropriate court to hear the case.111 SeaRiver Maritime’s attempt to have its claims heard in Texas was undoubtedly a strategic maneuver to secure a friendlier jurisdiction than could be found in Alaska.112 Accordingly, the corporation argued that venue was appropriate in Houston because it resides in Houston and a substantial part of the events or omissions that gave rise to the claim occurred there.113 The district court in Texas held that SeaRiver Maritime’s decisions in Houston regarding the SeaRiver Mediterranean and the harm felt in Houston by the vessel’s inability to operate in Prince William Sound did not bear a sufficiently substantial connection to the events giving rise to the corporation’s claim.114 Since there was no basis for venue in Texas, the suit was dismissed without prejudice and SeaRiver Maritime was given [*PG134]the opportunity to select either the District of Columbia or Alaska as the forum in which to bring their suit.115

SeaRiver Maritime chose to refile its claims in the District of Columbia, again challenging section 5007 on the basis that it violated the due process and double jeopardy clauses of the Fifth Amendment, constituted a bill of attainder in violation of Article I, section 9 of the Constitution, and operated as an ex post facto law in violation of Article I, section 9.116 In the interim, however, the district court in Texas reconsidered and elected to transfer the case to the District of Columbia.117 In doing so, the Texas court noted that it was not taking a position that the District of Columbia was a better forum than Alaska, but rather that it was proper venue under federal law.118 Again, the government made a motion to transfer the suit to Alaska for either improper venue119 or the doctrine of forum non conveniens.120

The district court in the District of Columbia decided that the factors weighing in favor of keeping the case in the District of Columbia did not outweigh the interest of the state of Alaska.121 While the District of Columbia was the forum chosen by SeaRiver Maritime and a forum where the government could defend the action without any great inconvenience, the court reasoned that there would be virtually no discovery and no issues relating to convenience of witnesses.122 Rather, the issues would most likely be decided on a motion for sum[*PG135]mary judgment, thus avoiding an evidentiary trial.123 Given these circumstances, there were simply not enough factors to outweigh Alaska’s strong interests in the suit.124 In addition, the District of Alaska had retained jurisdiction to interpret the 1991 consent decree, and there was a genuine issue as to whether SeaRiver Maritime waived its right to challenge section 5007 of OPA by signing the consent decree.125 The court held that the District of Alaska was in the best position to determine the applicability of the decree to the facts of the case.126

Additional considerations that called for transfer to Alaska included what the district court of the District of Columbia called the state’s “extraordinary interest in the outcome of this suit” and the “immeasurable damage to the people and ecology of Alaska” inflicted by the Exxon Valdez.127 The district court of the District of Columbia recognized the interest of Alaskan citizens to participate in the proceedings arising out of this case and transferred it to Alaska.128

By the time the case reached Alaska, almost two years had passed since SeaRiver Maritime first filed suit in Texas.129 For the Alaska district court, the issue was not whether section 5007 of OPA was unconstitutional, but rather whether the content and intent of the consent decree (that supposedly settled all claims between the parties), would allow this challenge.130

First, the court noted that the consent decree made clear that Exxon and the United States were settling any and all claims.131 In the consent decree, where the parties had meant to except a matter from the reach of that term, they expressly included an exception.132 Since no exception existed for constitutional claims that may have arisen out of the Exxon Valdez accident, the court reasoned that the parties [*PG136]were buying complete peace for all but certain very specifically enumerated matters.133

The Alaska district court also focused on the sophistication of the parties, who were represented by a substantial number of experienced and competent lawyers and were unlikely to have signed on to the terms of the agreement “without parsing them with extraordinary care.”134 Thus, the failure to mention constitutional claims still did not protect SeaRiver Maritime from the general idea that any and all issues between the parties were settled.135 The dispute over whether the SeaRiver Mediterranean was unconstitutionally barred from Prince William Sound was constrained by the terms of the 1991 consent decree, and SeaRiver Maritime was not permitted to litigate its claims.136

IV.  The Bill of Attainder Clause

Although the federal district court in Alaska held that the 1991 consent decree prevented the parties from litigating the constitutional issues that SeaRiver raised, the merits of SeaRiver Maritime’s claims bear discussion.137 Specifically, SeaRiver Maritime’s bill of attainder challenge to OPA raises interesting questions about the legitimacy of section 5007. To address these questions, it is necessary to discuss the elements of bills of attainder, the origin and justifications for the constitutional prohibition on bills of attainder, and the Supreme Court’s test for analyzing whether a legislative action constitutes a bill of attainder. Further, an overview of the recent uses of the bill of attainder challenge is instructive for describing the interpretation currently employed by the federal circuit courts.

A.  Bills of Attainder

In England, a bill of attainder was a parliamentary act that sentenced a named individual or identifiable members of a group to death.138 It was most often used to punish political activities that Parliament or the sovereign found threatening or treasonous.139 The [*PG137]United States Constitution expressly prohibits the federal government from enacting bills of attainder through the Bill of Attainder Clause (Clause).140 This constitutional directive has also come to encompass bills of pains and penalties.141 Under English law, a bill of pains and penalties was identical to a bill of attainder, except that it prescribed a punishment short of death such as: banishment, deprivation of the right to vote, exclusion of the designated individual’s sons from Parliament, or the punitive confiscation of property.142 The Supreme Court has consistently defined a bill of attainder as “law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.”143

B.  Historical Justifications for Prohibiting Bills of Attainder

The Clause’s prohibition on bills of attainder derives from two sources.144 The Framers’ first goal was to prevent the deprivation of individual rights by the legislature.145 Their second, and more important goal was to preserve the integrity of the new government’s separation of powers and system of government.146

In forbidding bills of attainder, the Framers of the Constitution sought to prohibit the English Parliament’s ancient practice of punishing specifically designated persons or groups without trial.147 In this [*PG138]respect, the Clause serves as a bulwark against tyranny.148 As participants in a rebellion themselves, the Framers were well aware of the danger inherent in special legislative acts that took away the life, liberty, or property of particular persons merely because Parliament or the sovereign thought them guilty and deserving of punishment.149 Further, “[i]n the aftermath of the American Revolution, the Framers of the American Constitution also saw many anti-loyalist statutes enacted throughout the states, including numerous bills of attainder and pains and penalties.”150 When placed in this context, it is evident that the Framers intended to safeguard the people of this country from punishment without trial in duly constituted courts.151

The Clause, however, also has practical consequences for our system of government. Specifically, the sanction against bills of attainder serves two purposes: to ensure that the legislature is confined to rulemaking and prohibited from conducting trials and to protect the separation of powers by preventing the legislature from assuming the functions of the judiciary.152 As such, the Clause reflects the Framers’ belief that Congress is not as well-suited to the task of determining guilt and levying punishment as politically independent judges and juries.153

[*PG139] In addition, in a system of government that relies on the presumption that each branch will refrain from performing the tasks of the others, the Clause serves as a barrier, erected to ensure that the legislature will not overstep the bounds of its authority and perform the functions of the other departments.154 The Clause restrains Congress from usurping judicial functions in the same way that Article III of the Constitution confines the judicial branch to the task of adjudicating concrete cases or controversies.155 The Supreme Court has stated that the Clause “was intended not as a narrow, technical . . . prohibition, but rather as an implementation of the separation of powers, a general safeguard against legislative exercise of the judicial function, or more simply—trial by legislature.”156 Thus, the dual rationale of the separation of powers or fear of over-concentration in any one branch of our government, and the feeling that the characteristics of various departments render them suitable for different jobs, is reflected in the Clause.157

C.  The Supreme Court’s Analysis of Bills of Attainder

The Supreme Court has developed a test to determine when a law inflicts prohibited punishment, and thus constitutes a bill of attainder.158 The two-part inquiry examines the law for both specificity [*PG140]and punishment.159 Unless both elements are found, a law is not an unconstitutional bill of attainder.160

1.  Specificity

The first inquiry is whether the legislature has acted with specificity.161 Although bills of attainder were historically directed at specific individuals, this sanction also applies to those laws directed toward a whole group or readily ascertainable members of a group.162 For example, a law that punishes particularly named individuals is a bill of attainder and a violation of the Clause.163 However, a law does not have to name specific individuals to be a bill of attainder.164 If a law names a group, or even describes a group, such that it may be readily ascertained that the law is directed at that specific group, this may also constitute a bill of attainder.165

Satisfaction of the specificity strand alone is not sufficient to find that a particular law implicates the Clause, let alone violates it.166 The proscription against bills of attainder applies to statutes only when they inflict punishment on a specified individual or group.167

[*PG141]2.  Punishment

The second inquiry is whether the legislative action imposes a punishment.168 The Court makes three necessary inquiries to make this determination.169 First, the Court determines whether the law imposes a punishment of the sort traditionally prohibited by the Clause.170 Second, the Court employs a functional test, analyzing whether the law can reasonably be said to further non-punitive goals in light of the type and severity of the burdens imposed.171 Third, the Court utilizes a motivational test to determine whether the legislative record evinces a congressional intent to punish.172 Since the proscription against bills of attainder only reaches statutes that inflict punishment on a specified individual or group, the punishment factor has become a critical element of the overall test.173

a.  The Test for Traditional Punishment

The Court’s first determination is whether the challenged law imposes a punishment traditionally judged to be prohibited by the Clause.174 Such punishment at English common law included imprisonment, banishment, and the punitive confiscation of property by the sovereign.175 In our own country, the list of punishments forbidden by the Clause has been expanded to include legislation that bars participation by individuals or groups in specific employment or professions.176

The Court’s prohibition of bars to employment or specified vocations began with its holdings in Cummings v. Missouri177 and a companion case, Ex Parte Garland.178 Cummings involved the constitutionality [*PG142]of amendments to the Missouri Constitution of 1865, which provided that no one could engage in a number of specified professions unless he first swore that he had taken no part in the rebellion against the Union.179 Cummings, a priest, was disqualified from practicing as a clergyman because he could not truthfully take the oath.180 At issue in Garland was a federal statute that required attorneys to take a similar oath before they could practice in federal courts.181 The Court struck down both provisions as bills of attainder on the ground that each was a legislative punishment directed toward a specific group: clergymen and lawyers who had taken part in the rebellion and thus were prevented from truthfully taking the oath.182 Thus a law is a bill of attainder if it permanently deprives an individual or group through the confiscation of property, bars participation in a specified vocation or employment, imprisonment, or takes the form of any other traditional form of punishment.183

b.  The Functional Test

The functional test seeks to determine whether the law, when viewed in terms of the type and severity of the burdens imposed, reasonably furthers legitimate, nonpunitive legislative goals.184 “Even measures historically associated with punishment . . . have been otherwise regarded when the nonpunitive aims of an apparently prophylactic measure have seemed sufficiently clear and convincing.”185 That is, when a legislative action has legitimate, nonpunitive purposes, a court will be prevented from striking it down, even if it seemingly im[*PG143]plicates the specificity and traditional punishment aspects of the inquiry.186 Such legitimate goals have included encouraging draft registration,187 guaranteeing the availability of evidence at criminal trials,188 preserving historical records,189 and encouraging competition in formerly monopolized markets.190 Thus, it must be established that the legislature’s action constitutes punishment and not merely the legitimate regulation of conduct.191

Put differently:

[t]he question in each case where unpleasant consequences are brought to bear on an individual for prior conduct is whether the legislative aim was to punish . . . or whether the [*PG144]restriction of the individual comes about as a relevant incident to a regulation of a present situation . . . .192

Courts have generally applied a balancing test to determine whether legislation is a punitive measure or the legitimate regulation of conduct.193 The Court weighs the public’s needs, as interpreted by Congress, against the law’s detrimental effect on the named individual or group to ascertain if it survives scrutiny under the Clause.194

For example, in Fresno Rifle and Pistol Club v. Van De Kamp, Inc.,195 gun clubs and gun manufacturers challenged a California law that classified certain assault weapons and proscribed their manufacture, sale, and possession.196 The plaintiffs claimed that the law unconstitutionally inflicted punishment within the meaning of the Clause.197 However, the Ninth Circuit held that the California legislature had a legitimate justification for passing the law, since they had found that assault weapons presented an unreasonable harm to human life.198 Thus, the law was a legitimate regulation of conduct.199

However, in other rare instances when there is no legitimate legislative purpose, the Supreme Court will find that the law was enacted with the purpose of punishing the individuals disadvantaged by the law.200 The Court has relied upon the prohibition against bills of attainder only five times to strike down legislation.201 Correspondingly, [*PG145]there have been few times when the Court has found that legislation was enacted with the specific purpose of punishing an individual.202

Perhaps the best example of a law enacted exclusively for a punitive purpose is seen in United States v. Brown.203 There, Congress enacted the Labor Management Reporting and Disclosure Act of 1959, making it a crime for a member of the Communist Party to serve as an officer or employee of a labor union.204 The Supreme Court found that the law’s only purpose was to inflict deprivations on blameworthy individuals in order to prevent their future misconduct, which was prohibited by the Clause as an impermissible punitive objective under the functional test for punishment.205

c.  The Motivational Test

Third, the Court must determine whether the legislative record evinces a congressional intent to punish.206 This task is accomplished by looking directly at the legislative history of the law in question, including the Senate and House Committee Reports and floor debates.207 For example, when the legislative history specifically mentions an individual by name or condemns a person’s behavior as meriting the infliction of punishment, it may fairly be said that Congress’s intent was punitive, and not merely regulatory.208 However, isolated statements do not rise to the level of unmistakable evidence of punitive intent that is required to strike down a law as a bill of attainder.209 For a law to withstand a bill of attainder challenge, it must be clear that Congress lacked the intent to punish.210

[*PG146] Intent to punish is not easily proved. For example, in Navegar, Inc. v. United States,211 a gun manufacturer alleged that a law showed the requisite legislative intent to punish based on a House Report that listed all of the semiautomatic weapons listed in the statute.212 Further, the manufacturer pointed out that it was repeatedly named in the floor debates as a manufacturer of banned weapons.213 The Ninth Circuit, however, held that these allegations fell short of the type of evidence required to show punitive legislative intent.214 The court reasoned that any mention of the manufacturer’s name was merely a recital of the content of the Act, and found Congress showed no intent to punish.215

Even a statement that singles out specific bad acts of a party (suggesting that a legislator has found fault with that party’s actions) is not sufficient to show punitive intent. For example, in BellSouth I,216 regional Bell operating companies were prevented from entering the information services market unless they complied with certain requirements set forth in the Telecommunications Act of 1996.217 BellSouth was able to only show a few scattered remarks referring to the anti–competitive abuses it allegedly committed in the past.218 This case demonstrates that even when the legislative history shows that there was discussion of a party’s past misconduct, a corresponding punitive legislative intent is not necessarily inferred.219

[*PG147]D.  Application Origin of the Modern Bill of Attainder Test

1.  Specificity, but No Punishment: Nixon v. Administrator of General Services

An individual must satisfy both the specificity and punishment prongs of the test to make a successful bill of attainder challenge.220 A classic example of a challenge that failed to satisfy both prongs is Nixon v. Administrator of General Services.221 In this case, former President Nixon challenged a law that gave the Administrator of General Services the power to seize and sort his presidential papers and tape recordings.222 President Nixon sued, alleging that the law was a bill of attainder that made it a legislative judgment of guilt and inflicted punishment on an identifiable individual, himself, without a judicial trial.223 The specificity prong was satisfied in fact, because the law named President Nixon explicitly.224 The Supreme Court, however, found that the reference to President Nixon did not automatically offend the Clause.225 Instead, the Court held that the former President constituted a “legitimate class of one.”226 The statute could permissibly name President Nixon because his were the only presidential materials that required attention.227 While the Clause serves as a protection against the legislative deprivation of personal rights, Congress is not restricted “to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.”228 In other words, the Clause does prohibit the infliction of punishment on specifically named individuals but does not prohibit Congress from enacting legislation that has incidental negative consequences.229

President Nixon also failed to satisfy the punishment prong.230 The Court found that the Clause prohibits legislative punishment, not burdensome consequences such as those imposed by the Act.231 Un[*PG148]der the three-part punishment analysis, President Nixon did not suffer any of the historically forbidden deprivations at the hands of Congress.232 Rather, any contention that the law punitively confiscated President Nixon’s property was countered by a provision in the law that permitted just compensation for any taking of personal property.233 Second, since Congress stressed the need to preserve these presidential papers and the public’s interest in these papers, the law had a clear, nonpunitive, legitimate purpose.234 Finally, neither the Committee reports nor the floor debates cast aspersions on President Nixon’s behavior, nor did they condemn his behavior as deserving punishment.235 Instead, they only expressed the importance of the public interest, allowing the Court to conclude that there was no congressional intent to punish President Nixon individually.236

Nixon is especially instructive of the Court’s analysis. It shows that even in the face of a law in which the language refers explicitly to one individual, and seems to inflict punishment in the face of an especially difficult national event, the law may not necessarily be an unconstitutional bill of attainder, this is especially true if there is a significant public interest in the issue.237

2.  Recent Attacks on Legislation Using the Clause

Nixon solidified the modern Court’s approach to bills of attainder, clearly setting out the steps courts should take in analyzing legislation alleged to violate the Clause.238 In recent years, there have been several attempts by various industries to attack legislation that has either satisfied the specificity prong or imposed a legislative burden; all have failed to satisfy both elements of the bill of attainder test.239 Most notably, the telecommunications and weapons industries have attacked legislation that significantly regulates the services and goods they provide.240

[*PG149] In 1998, BellSouth Corporation, a regional Bell operating company, challenged the Telecommunications Act of 1996 in the District of Columbia Circuit.241 The appellant challenged a specific portion of the Act that prevented it from providing long distance telephone service without first satisfying certain statutory criteria.242 Since the Act singled out the appellant by name, the court found that the specificity prong of the test was easily satisfied.243 However, the punishment prong of the bill of attainder analysis required a more searching inquiry.244

The D.C. Circuit held that a line-of-business restriction keeping the appellant from entering a particular area of the industry without first satisfying certain requirements was not a traditional punishment under the test.245 Instead, the law’s requirements were no different than the numerous regulatory measures aimed at other industries, which have not been held to inflict punishment.246 Rather than imposing a traditional employment bar prohibited by the Clause, the Act required only that the appellant open its local telephone markets to competition.247

Not only were the requirements of the Act outside the definition of traditional punishment, but the Act had a clear, nonpunitive purpose.248 The requirement imposed on the appellant was part of an act that was meant to provide a competitive telecommunications market in an area particularly susceptible to monopoly power.249 There was no punitive or suspicious motive in enacting the legislation.250 The legislative history and background of the Act was clear in this regard.251

Finally, even though members of Congress referred to the appellant by name, the D.C. Circuit held that BellSouth was unable to meet the unmistakable punitive intent requirement set out by the Court in [*PG150]Selective Service.252 All of these elements considered, the Act imposed no punishment on the appellant.253

In 1999, the District of Columbia Circuit Court of Appeals heard an appeal by firearm manufacturers.254 The manufacturer challenged the federal Violent Crime Control and Law Enforcement Act, which made it unlawful to manufacture, transfer, or possess a semiautomatic weapon.255 The D.C. Circuit chose not to address the issue of specificity, since the law named not only guns produced by the appellant, but also copies and duplicates of those firearms.256

The D.C. Circuit held that the law at issue did not impose a punishment on the manufacturer.257 Specifically, there was no historical punishment imposed: any analogy made between restricting the sale of semiautomatic weapons and the barring of specific parties from employment was unsupported.258 Bars to employment were initially held to be punishment because they singled out individuals as disloyal or disfavored.259 Here, the D.C. Circuit held that these weapons were singled out because they were dangerous and disproportionately linked to crime.260 Not only did the law fail to constitute a traditional punishment, but the court also held that there was a legitimate, nonpunitive purpose of reducing violent crimes connected with semiautomatic weapons.261 In addition, while the appellant’s guns were mentioned in the House Report and in floor debates, the mention of the appellant’s name did not suggest an intent to punish so much as it was a mere “recital of the content of the Act itself.”262 Thus, the Act lacked the punitive intent required to implicate the Clause.263

While BellSouth II and Navegar dealt with the punishment aspect of the Clause, the specificity inquiry was addressed in a recent Illinois [*PG151]case. In Cathy’s Tap, Inc. v. Village of Mapleton,264 the town council enacted ordinances that prohibited nude dancing in conjunction with the sale of liquor.265 At the time the ordinance was passed, the Mapleton Board acknowledged that there were currently only two liquor licenses in the town.266 The plaintiff, a local adult establishment that served alcohol, lost its liquor license as a result of the ordinance.267 However, even though the plaintiff’s establishment had one of only two licenses and was the only adult establishment in the village, the district court held that the ordinance did not rise to the level of specificity required to violate the Clause.268 Thus, while the ordinance applied only to one clearly identifiable business, it did not meet the initial threshold requirement for being a bill of attainder.269

These examples of recent challenges based on the Clause are helpful to understand how the Nixon test for bills of attainder has evolved in the thirty-three years since its articulation. While the requirements of specificity and punishment remain essentially the same, the inquiry into Congress’s nonpunitive, legitimate legislative purpose is becoming much more important to upholding legislative actions and the specificity element seems to have been relaxed.270

V.  Does Section 5007 of OPA Constitute a Bill of Attainder?

SeaRiver Maritime has not yet appealed the Alaska District Court’s July 1998 ruling that the terms of the 1991 consent decree constrain the company from challenging section 5007 as a bill of attainder.271 If SeaRiver Maritime does decide to appeal this ruling to the Ninth Circuit, the corporation’s claim could be heard at some time in the future. Thus, the merits of this claim deserve discussion, especially in light of the recent uses of the Clause in attacking various forms of legislation that inflict undesirable burdens on different industries.272

[*PG152]A.  Specificity

As a threshold matter, a court will inquire whether Congress acted with specificity in enacting section 5007.273 A law is constitutionally impermissible if it singles out specific individuals or businesses, a group, or readily ascertainable members of a group.274 As noted in Brown, a law does not have to name the group or individual explicitly, but can violate the Clause merely by describing certain people specifically.275 Even if a law refers to an individual by name, however, the Clause is not automatically offended.276 For example, in Nixon, the Court held that former President Nixon constituted a legitimate class of one because his were the only materials that demanded immediate attention.277 As a result, it was permissible for Congress to pass a law that applied to him alone.278

Cathy’s Tap dealt with a similar situation.279 Even though the Mapleton Board acknowledged that there were currently only two liquor licenses in the town, and the plaintiff lost its liquor license as a result of the ordinance, the district court held that the ordinance did not rise to the level of specificity required to violate the Clause.280 Similar to the Supreme Court’s holding in Nixon, the threshold specificity requirement for bills of attainder was still not satisfied even though the local ordinance in Cathy’s Tap applied only to one clearly identifiable business.281

In theory, section 5007 could be perceived as specifically directed at the Valdez spill. The statute applies to spills occurring after March 22, 1989, the day before the actual Exxon Valdez spill, effectively allowing the statute to apply to the SeaRiver Mediterranean.282 Further, the law applies to any vessel that has spilled more than one million gallons of oil into the marine environment, a class into which only the SeaRiver Mediterranean falls since the vessel spilled eleven million gal[*PG153]lons of oil into Prince William Sound.283 However, despite what seem to be sufficient instances of specificity, there is little chance that a court will find section 5007 to be a bill of attainder.284

Rather, given the circumstances leading up to the enactment of OPA,285 it is clear that section 5007 applies to any vessel that spills one million gallons of oil into the marine environment after March 22, 1989.286 That is, other vessels may later be barred from Prince William Sound if they also spill an excess of the amount prescribed in the statute.287 At some point in the future, another vessel could potentially spill more than one million gallons of oil such that it will also be barred from Prince William Sound. However, section 5007 presently applies to only one vessel,288 so that the SeaRiver Mediterranean is “a legitimate class of one.”289 Therefore, section 5007 fails to implicate the Clause because it is a generally applicable rule that applies to all tanker vessels that spill the specified amount of oil.290

Further, section 5007, like the statute at issue in Nixon, does not rise to the level of specificity required under the Clause.291 There, the Court was unwilling to find a bill of attainder even where legislation singled out former President Nixon by name.292 At most, section 5007 creates an inference that it prevents only the SeaRiver Mediterranean from returning to Prince William Sound, when it is in fact prohibiting any vessel that spills a specified amount of oil after a certain date from [*PG154]reentering the Sound.293 Thus, section 5007 “casts a wider net” by leaving room for other vessels to fall within the statutory prohibition.294 An otherwise valid law such as section 5007 is not transformed into a bill of attainder merely because it regulates conduct on the part of a designated class of individuals.295 While the Clause serves an important function in confining the legislature to rulemaking, it “does not . . . limit [C]ongress to the choice of legislating for the universe, or legislating only benefits, or not legislating at all.”296 Under this analysis, SeaRiver Maritime’s reputed assertion that it is protected from any legislation that imposes a burden upon the corporation is unfounded.297

Thus, section 5007 does not meet the threshold level of specificity required to implicate the Clause.298 However, even if legislative specification is shown, a court must also find that section 5007 imposes a burden that could be deemed punishment under the Clause.299

B.  Punishment

Once a court determines that a law is directed at a specified individual, it will then inquire whether the legislative action imposes a punishment.300 Both the specificity and punishment elements must be satisfied in order for a court to find that legislation is a bill of attainder.301 Whether a law constitutes punishment is a three-part inquiry, analyzing whether the legislation imposes a traditional punishment, [*PG155]whether it has some other nonpunitive function, and whether the motivation of the legislature was to punish the specified individual.302

1.  Traditional Punishment Test

A law will be an unconstitutional bill of attainder if it imposes a punishment traditionally prohibited by the Clause.303 SeaRiver Maritime alleges that it is a punishment for the SeaRiver Mediterranean to be permanently barred from entering Prince William Sound because the vessel was built specifically for the California-Alaska route.304 Thus, section 5007 prevents the vessel from operating in the place for which it was constructed.305 While SeaRiver Maritime would like a court to believe that this incidental consequence falls within the traditional test for punishment, the connection between the effect of the statute and traditional punishment is tenuous.306

The SeaRiver Mediterranean currently operates in the Mediterranean Sea.307 SeaRiver Maritime alleges that it is much less profitable to operate the tanker in Europe than it would be if it were permitted to operate the vessel in Alaska.308 Barring the SeaRiver Mediterranean from Prince William Sound, however, does not fit within the traditional punishments of the Clause,309 which typically include: imprisonment, banishment, punitive confiscation of property, and prohibition of designated individuals or groups from participation in a specified employment or vocation.310 In Fresno Rifle, gun manufacturers and shooting clubs claimed that a law that identified the weapons they manufactured as “assault weapons” was a bill of attainder.311 However, the Ninth Circuit concluded that this was not an impermissible punishment traditionally prohibited by the Clause.312 Instead, [*PG156]the court held that the law at issue was merely indirect economic punishment and failed to amount to punitive confiscation.313

The same thing can be said of the SeaRiver Mediterranean. As in Fresno Rifle, the critical question is whether the kind of “economic punishment” inflicted on the corporation is the sort prohibited by the Constitution.314 A court would surely conclude that barring the vessel from Prince William Sound is not such a punishment.315 The corporation is free to continue operating the SeaRiver Mediterranean in other venues besides Prince William Sound and has done so since the vessel’s $30 million overhaul in 1990.316 Further, the corporation has other vessels operating both in Prince William Sound and in other parts of the world.317 While the corporation may be experiencing some cognizable economic consequences, they are indirect and in no way amount to punitive confiscation.318

Further, line-of-business restrictions on corporations have been held to pose no bill of attainder concerns.319 For example, in BellSouth II, a statute required local operating companies to open their local telephone markets to competition to avoid the creation of monopolies.320 The local operating companies argued that this restriction on their business operations was analogous to the employment bars held by the Supreme Court to be bills of attainder.321 The court found no bill of attainder concerns even though the law violated the specificity prong of the test.322 The SeaRiver Mediterranean finds itself in a similar situation: just as the local telephone companies are barred from entering certain markets until they fulfill the specified requirements, the vessel is barred from Prince William Sound because it meets a specific legislative requirement.323

Since the two situations are factually analogous, SeaRiver Maritime’s challenge to OPA will most likely receive the same treatment by a court. As in BellSouth II, there is a very loose and unsupported anal[*PG157]ogy between the traditional employment disbarments forbidden by the Clause and section 5007 of OPA.324

Placing section 5007 among the burdens historically forbidden as attainder seems especially dubious because the statute does not bar the SeaRiver Mediterranean from operating ever again, but simply from reentering Prince William Sound.325 SeaRiver Maritime is free to continue operating the vessel in the Middle East or, if the corporation so chooses, in any other waters of the United States.326

2.  Functional Test

A court must also ensure that the “nonpunitive aims of an apparently prophylactic measure are sufficiently clear and convincing” before finding that a law does not constitute a bill of attainder.327 More specifically, if there is an adequate nexus between the restriction imposed and some legitimate, nonpunitive governmental purpose, a law will not offend the Clause.328

While section 5007 could be said to place a burden on SeaRiver Maritime, a burdensome regulation cannot always be equated with punishment.329 The purpose of section 5007 is not to punish the current owners of the vessel.330 Instead, section 5007 is an attempt to devise a much-needed scheme of protection and prevention to ensure that Prince William Sound is never again faced with the type of crisis created by the Exxon Valdez oil spill.331

This contention is supported by two important considerations. First, SeaRiver Maritime’s claim of punitive purpose is somewhat undermined by section 5007’s placement in a law that generally notes its attempts to change the way the United States deals with oil pollution.332 On the whole, the legislative aim in enacting OPA was to dramatically change the schemes in place for liability, prevention, and [*PG158]cleanup of oil spills.333 Furthermore, section 5007 is placed in a portion of the Act that specifically aims to remedy the consequences of the worst oil spill in the United States’ history by implementing specific preventive measures for Prince William Sound, such as the Bligh Reef light334 and an improved tanker-traffic navigation system.335 When placed in the context of OPA generally and the Prince William Sound provisions specifically, it becomes clear that section 5007 is not a punitive, but rather a protective measure.336

Second, the consequences of the Exxon Valdez spill were serious and have had lasting effects for both the environment and the people of Prince William Sound.337 It is entirely conceivable that Congress perceived that vessels with a history of serious oil spills pose a considerable risk of aggravating the already drastic conditions in Prince William Sound, and should thus be barred from the Sound to prevent that risk from being realized.338 Except in the most dire of circumstances,339 a spill of the Exxon Valdez’s magnitude would indicate carelessness on the part of the oil industry.340 That is, the Exxon Valdez spill resulted not from just one mistake, but from a series of bad decisions and habits.341 Congress could have reasonably believed that it was too much of a risk to subject Prince William Sound to the chance that the SeaRiver Mediterranean, or any other vessel that creates a massive spill, could spill again.342 After all, if industry carelessness led to the dis[*PG159]charge of eleven million gallons, industry carelessness could also lead to the same pattern of bad decision making and result in the same vessel spilling again. Read against the background of the events in 1989 and 1990, there is little chance that anyone could suggest that the risk of another major oil spill was so feeble that section 5007’s bar was a smoke screen for some invidious purpose.343 Rather, protecting against the risk of future spills is a legitimate and nonpunitive purpose, and thus fulfills the second aspect of the punishment test.344

3.  Congress’s Motivation in Enacting Section 5007

The final step in the test of punishment requires a court to determine whether the legislative record evinces an intent to punish.345 Congress’s motivation in enacting section 5007 of OPA can be described as nothing other than preventive.346 If a legislative action is to be found a bill of attainder, there must be an unmistakable legislative intent to punish the specified individual.347 Isolated statements about a particular individual or those that express distaste for a particular behavior are not sufficient to show punitive intent.348

While the legislative history discusses the Exxon Valdez accident, acknowledges it as the largest spill in United States history, and cites its significant impact on the commercial and environmental interests in Prince William Sound, there is no evidence of any punitive intent.349 The mention of the Exxon Valdez accident and its consequences in the congressional reports does not suggest the intent to punish but rather was a recital of the immediate events leading up to the enactment of OPA.350 Further, the legislative history also alludes to the other oil spills in 1989 and 1990 that were a cause of concern for both Congress and the Nation.351

[*PG160] As discussed in Selective Service, even statements by Congressmen that expressed indignation at the decision of individuals not to register in the draft did not constitute a punitive legislative intent.352 Rather, these isolated statements lacked the punitive purpose required to strike a law as a bill of attainder.353 In the same manner, references to the spill by the SeaRiver Mediterranean’s previous owner and Exxon’s responsibility for that spill do not provide the kind of “‘smoking gun’ evidence of congressional vindictiveness” required to establish that section 5007 is a bill of attainder.354 Instead, section 5007 is best classified as a measure intended to protect Prince William Sound from any further environmental damage.355

Part of the difficulty lies in that there is no discussion of section 5007 in the legislative history.356 Alaska Senator Ted Stevens inserted section 5007 into the Conference Report.357 However, the Conference Report’s failure to discuss section 5007 does not automatically implicate the statute as a bill of attainder.358 Rather, it suggests just the opposite and bolsters the claim that it is not a bill of attainder because there is no explicit attempt to punish.359 In addition, reading section 5007 in the context of OPA, which is not one of punishment, but one of prevention and improvement on the statutory scheme that existed in 1990, could cure the lack of legislative history.360

Conclusion

When SeaRiver Maritime’s possible claims are put through this analysis, it is clear that it will not satisfy the criteria for bills of attainder. Not only does section 5007 lack the specificity required to violate the Clause, but it also fails to impose a punishment. The specificity element is not met because section 5007 applies not only to the [*PG161]SeaRiver Mediterranean, but also to any vessel that may spill the specified amount of oil in the future. In addition, section 5007 does not implicate a punishment element. Banning a vessel from a specific geographic region is not the sort of traditional punishment forbidden by the Clause. Also, there is a serious and legitimate nonpunitive purpose in preventing any vessel that has spilled a significant amount of oil from endangering a region that has already suffered serious environmental and economic damage from the worst oil spill in U.S. history. Further, the legislative record evinces no intent to punish either the vessel or Exxon, the owner of the vessel at the time OPA became law. Given all of these factors, a court would probably not consider section 5007 of OPA to be a bill of attainder. Thus, section 5007 should stand, and any vessel that spills one million gallons of oil into the marine environment, including the SeaRiver Mediterranean, should not be permitted to have access to Prince William Sound.

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