Big oil, big consequences, and the big unknown: exploring the legal, regulatory, and environmental impact of the gulf oil spill.

• Author: Powers, Elise C.
• Position: FOREWORD

For every wrong, there is a remedy; and for every remedy, there is a lesson learned. When an absent-minded driver rear ends a vehicle stopped at a red light, he or she will have to pay for the damage and will most likely be sure to keep both eyes on the road in the future. When an electronics company sells a laptop with a defective hard drive, the company will be responsible for providing the customer with a refund or a new device, and--if it wants to stay in business--note the complaint in order to prevent future defects in its product line. And when a neighbor allows a fire originating on her property to spread to the home next door, she will be responsible for the substantial repairs, thus teaching a valuable lesson in fire prevention.

One way or another, an innocent party that suffers a loss at the hands of another's misgivings can rest assured that the regulatory scheme in place will ensure that the wrongdoer cleans up the mess, appreciates the error, and compensates the injured party, which in turn curbs future harmful behavior. Yet, what if the injured party is the environment, and it has fallen victim to Big Oil?

On April 20, 2010, the explosion on British Petroleum's S.S. Deepwater Horizon oil rig marked the beginning of the worst marine oil spill in world history. What began as a tragic accident-resulting in the loss of eleven workers' lives and serious injury to seventeen others--rapidly morphed into a frantic effort to plug a newly-discovered oil leak that was located 5000 feet below the Gulf of Mexico's surface, and was spewing hundreds of thousands of gallons of crude oil into the environment each day.

Between April and July 2010, an estimated 4.4 million barrels of crude oil flowed into the Gulf (1) at a rate of about five hundred thousand gallons per day, altering the Gulfs ecosystem and suffocating all forms of life in its path. Petroleum soon made its way to the southern coast of the United States, where it continued to wreak havoc on property, coastal species, and human life. Arriving first in Louisiana, massive oil pools, about a foot deep, engulfed wildlife on the shores, smothering birds at an ever-increasing rate. (2) At present, the outlook for many of the affected species remains grim.

The oil spill in the Gulf has left many questions unanswered. How did this happen? What is the true extent of the damage? What deterrent effect, if any, will this spill have on industry practice in the future? And, perhaps most importantly, how will this mess be cleaned up?

On October 14, 2010, the Albany Law Review hosted its annual fall symposium to explore a myriad of issues surrounding this environmental disaster. This event explored the regulations, or lack thereof, that not only allowed oil to escape into the Gulf, but to persist as an unstoppable force for months on end. In addition, it examined the future of industry regulation and the possibility of developing public and private regulatory standards to safeguard against further destruction at the hands of industry giants.

PANEL ONE: OIL SPILL LIABILITY AND DAMAGES: PAST, PRESENT, AND FUTURE

The first panel of the Symposium focused on the state of the law with respect to litigation arising from oil spills, and the legislation in place before and after the Deepwater Horizon disaster. The panel discussed the nature of the remedies for environmental tragedies in the United States as exclusively reactionary, as opposed to proactive, in nature, the system for recovery of natural resource damages under the current regulatory scheme, and the extent to which the legislation currently in place, and that being considered for the future, will deter similar behavior in the oil industry.

Moderated by Professor Timothy Lytton, the Albert and Angela Farone Distinguished Professor of Law at Albany Law School, the first panel included presentations from the following distinguished speakers:

Joan Bondareff, Of Counsel, Blank Rome. Joan Bondareff has focused her practice of law on marine transportation, environmental law, and legislative issues. She has represented clients in legal matters related to maritime regulations and public policy, government relations, international law, and federal grants. Prior to joining Blank Rome, Ms. Bondareff served as Deputy Administrator and Chief Counsel to the Maritime Administration of the United States Department of Transportation, and Majority Counsel to the House Committee on Merchant Marine and Fisheries. In recent years, Ms. Bondareff was a member of President Obama's Transition Team, handling maritime-related issues for the Department of Transportation. Ms. Bondareff has also made important contributions to legislation through her work on the Oil Pollution Act of 1990 (3) ("OPA"), and aided in the development of the National Resource Damage Assessment Regulations as Assistant General Counsel for Ocean Services at the National Oceanic and Atmospheric Administration. Ms. Bondareff attended George Washington University, where she received her Bachelor of Science in Marine Science. She graduated magna cum laude from American University School of Law in 1975.

Ms. Bondareff's discussion at the Symposium focused on quasijudicial remedies, specifically the Gulf Coast Claims Facility ("GCCF"), BP's $20 billion fund established to settle claims arising from the Deepwater Horizon tragedy. (4) The GCCF, administered by Ken Feinberg and outside the scope of OPA, received claim filings for Emergency Advance Payments ("EAPs") from August 23, 2010 through November 23, 2010 from claimants that have sustained losses as a result of the spill. (5) These claims include demands for removal of waste and environmental cleanup costs, damages to real or personal property, lost business profits and earning capacities, lost subsistence use of natural resources, and damages for physical injury and death. (6) Whether the compensation that these parties have received is proportionate to their actual losses remains to be seen. However, once claimants have accepted a final payment from the GCCF, they are left without further recourse should they realize the compensation falls short of the losses they have suffered. (7)

Vincent J. Foley, (8) Partner, Holland & Knight. Vincent Foley is a Partner in Holland & Knight's Maritime Practice Group where he focuses primarily on international complex litigation arising out of vessel casualties including collisions, explosions, and oil spills. Mr. Foley has had extensive experience with oil spill claim litigation, oil pollution prevention, and response drills and training. Mr. Foley has also advised clients on environmental policy and compliance, and has defended clients in both civil claims and criminal prosecutions for crimes against the environment. Prompted by the recent oil spill, on May 27, 2010, Mr. Foley testified...