Oil, Emergencies, and Lawyers – What's next in the Gulf Catastrophe

June 4th, 2010

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Earlier today, BP officials expressed cautious optimism regarding their latest attempt to stem the flow of oil from a blown out well a mile below the surface of the Gulf of Mexico. Of course, even if the so-called “top hat” procedure is deemed a success, an untold amount of oil will continue to gush into the ocean, possibly until two relief wells are completed in about two months. I think the spill has aroused some feelings common to people across the country: sadness at the tragic and unnecessary loss of life and livelihood as well as frustration and anger at the inability to prevent and contain the spill. I am no exception, but, as a lawyer and self-styled environmentalist working in the emergency management field, I’ve taken quite an interest in the spill from a more intellectual perspective as well. In addition to stirring up the emotions of the populace, the spill has already spurred a significant amount of litigation.

More than 100 claims have been filed since the Deepwater Horizon rig exploded in April and oil began gushing from the broken riser. As expected, many of them are personal injury complaints and involve the usual suspects: BP, Transocean, Halliburton, and Cameron International, who manufactured the blowout preventer. Of course, the defendants have engaged in a fair amount of finger-pointing, blame-shifting, and other behavior designed to avoid liability. Transocean has even cited a liability cap invoked by the owners of Titanic to limits liability. Interestingly, the environmental law firm Earthjustice has filed a complaint against the Department of Interior, claiming that its Minerals Management Service improperly issued notices to BP during its application for a deepwater drilling permit stating that it did not have to submit an analysis of blowout and worst case spill scenarios along with a plan on how to deal with them.

Also, much has been made of the federal government’s perceived laissez-faire approach to managing the disaster. This is, of course, what touches us as emergency management professionals. The National Multi-Agency Oil and Hazardous Materials Contingency Plan (NCP) was implemented in 1968 and subsequently expanded through amendments to the Clean Water Act and Comprehensive Environmental Response Compensation and Liability Act (CERCLA). NCP details the authority of the federal government and the contours of its relationship with the private sector and state and local entities. Whether or not the federal government has invoked the fullest extent of its authority under the NCP in this instance remains to be seen. Perhaps that’s a post for another day.

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