Storm Provides Excuse For Bad Jones Act Precedent
Here we go again. After every hurricane or storm that affects Puerto Rico, the Jones Act denialists are out, as reliably as mushrooms after rain. Bending to pressure from the governor of Puerto Rico, Pedro Pierluisi, Secretary of Homeland Security Alejandro Mayorkas granted a Jones Act waiver to a British Petroleum tanker carrying 300,000 gallons of diesel fuel from Houston.
The purported excuse for the waiver request was an “emergency” regarding diesel supply on the island. The BP tanker diverted to Puerto Rico to take advantage of an opportunity to challenge the Jones Act by not following the law and applying for a waiver via the usual procedure.
Was there ever a real emergency? Ku’uhaku Park, president of the American Maritime Partnership (AMP), a coalition of Jones Act supporters, called the whole drama a “cynical stunt.” The AMP said there never was a true supply emergency in Puerto Rico. Jennifer González Colón, resident commissioner, said that according to the U.S. Coast Guard, the Federal Emergency Management Agency, the Corps of Engineers and the U.S. Department of Energy, “[T]here is an adequate supply of fuel on the island that is available to consumers.”
On September 26, a domestic operator delivered fuel near Aguirre and then in Guayanilla to help provide diesel on the island. More deliveries, both foreign and U.S.-sourced, are scheduled to be delivered soon. Sources say any delays in getting diesel to where it is needed on the island are coming from landside transportation networks, not ocean shippers. The executive director of the Puerto Rico Ports Authority, Jose Piza, said, “There is no problem with the Jones Act because Puerto Rico has even received more than 600,000 gallons of diesel from foreign vessels in the past two weeks.”
None of that mattered to those intent on attacking the Jones Act. The Wall Street Journal’s editorial board, longtime Jones Act opponents, predictably called it “protectionism at its worst.” The waiver request, unfortunately, got bipartisan support. Eight members of Congress, led by New York Democratic Rep. Nydia Velazquez, sent a letter to Mayorkas calling for the waiver. The waiver call was joined by Republican Sens. Marco Rubio of Florida and Mike Lee of Utah.
In 2020, Congress eliminated the federal government’s authority to issue long-term comprehensive waivers, except in circumstances where a waiver is required to “address an immediate adverse effect on military operations.” In DHS’s interpretation, though, this means “the DHS may grant a Jones Act waiver if the proposed shipments are in the interest of national defense and after careful evaluation of the issue.” That’s just another way of saying DHS can ignore the law if it wishes.
The American Waterways Operators also weighed in. CEO Jennifer Carpenter said, “We have made clear our objection to this waiver both on procedural and factual grounds. The calculated act of transporting fuel on what would be a coastwise transit and then utilizing the public and political pressure of anchoring a tanker of fuel off the island’s coast to demand an unnecessary Jones Act waiver is unprecedented and inconsistent with U.S. law. While a case-by-case vessel waiver is a significant improvement from the ‘blanket waivers’ of the past, the retroactive nature of this waiver demands scrutiny, and we have begun work with administration and congressional allies to prevent the possibility that this practice is repeated in the future.”
Sadly, Park and Carpenter are right to suspect that cynical stunts like this will be tried again to circumvent the law and Congress’ intent.
