A Canary in a Coal Mine: What We Haven’t Learned From Deepwater Horizon and How Courts Can Help

ARTICLES

A Canary in a Coal Mine: What We Haven’t

Learned from Deepwater Horizon and How Courts

Can Help

ABIGAIL E. ANDRE

´*

TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I. Risks & Regulatory Failures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. Oil Poses a Persistent Threat . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. Regulatory Response to Deepwater. . . . . . . . . . . . . . . . . . . . . . . . 8

C. Regulatory Rollbacks. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

II. The Punitive Force of US Oil Pollution Laws . . . . . . . . . . . . . . . . . . . . 17

III. Section 311: The Will of Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. “Polluting Enterprises” Are Strictly Liable . . . . . . . . . . . . . . . . . . 22

B. Small Spills Trigger Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

IV. Section 311: Punishment & Deterrence . . . . . . . . . . . . . . . . . . . . . . . . . 31

A. Heightening Per Barrel Penalties. . . . . . . . . . . . . . . . . . . . . . . . . . 33

1. Deepwater Drilling Elevates the Standard of Care . . . . . . . . . 33

2. Proof of Intent is Not Required . . . . . . . . . . . . . . . . . . . . . . . 37

3. The Multiple Acts Test . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

B. Maximizing Penalties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

1. Potential Harm Indicates Seriousness. . . . . . . . . . . . . . . . . . . 44

2. Sometimes Passivity Should be Punished . . . . . . . . . . . . . . . . 47

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

* Assistant Professor, Vermont Law School; Adjunct Faculty, University of Denver Sturm College

of Law; JD, The Ohio State University Moritz College of Law (2010). © 2020, Abigail E. Andre

´.

In full disclosure, I worked as a Trial Attorney on the civil Clean Water Act cases arising from the

2010 Deepwater Horizon oil spill in the Gulf of Mexico for the U.S. Department of Justice,

Environment and Natural Resources Division, Environmental Enforcement Section from 2011–2016.

The entirety of this Article was written after I left the Department in 2019.

1

INTRODUCTION

“Could this oil spill have been worse? Yes. Could there be an oil spill in the

future that is worse than this one? Unfortunately, the answer to that question is

also yes.”

Judge Carl Barbier

In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on

Apr. 20, 2010

1

This Article aims to remind courts presiding over oil spill cases that Congress

enacted Section 311 of the Clean Water Act with the goal of zero pollution in

mind.

2

Whether purposivist,

3

textualist

4

or something in between, the Act pro-

vides punitive tools so courts can protect our nation’s waters and deter careless-

ness in the offshore industry before another disaster like the Deepwater Horizon

oil spill (“Deepwater”) spoils our shores. Persistent oil pollution supports this

conclusion, and although this Article uses the 2010 Deepwater oil spill to illus-

trate our current regulatory landscape, smaller spills occur daily in the United

States and dangerous drilling practices continue to threaten another large scale

disaster.

The Deepwater oil spill was the worst environmental disaster in the history of

the United States. For eighty-seven days in 2010, “thousands of barrels of oil and

gas from the MC252 reservoir f‌lowed into and up the Macondo Well . . . and into

the Gulf of Mexico.”

5

In the end, BP and its codefendants were responsible for

1. In re Oil Spill by the Oil Rig “Deepwater Horizon” in the Gulf of Mexico, on Apr. 20, 2010, 148 F.

Supp. 3d 563, 570 (E.D. La. 2015) [hereinafter Deepwater Penalty Ruling].

2. When courts interpret federal statutes, they endeavor to do so as faithful agents of Congress. This

is appropriate: members of Congress are elected, and federal judges are not. See generally WILLIAM N.

ESKRIDGE, JR., PHILLIP P. FRICKEY & ELIZABETH GARRETT, LEGISLATION AND STATUTORY

INTERPRETATION (2d ed. 2006); John F. Manning, Textualism and the Equity of the Statute, 101 COLUM.

L. REV. 5 (2001) (“[I]t is widely assumed that federal judges must act as Congress’ faithful agents.”).

But see Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural and

Institutional Defense of Judicial Power over Statutory Interpretation, 96 NW. U. L. REV. 1239, 1253–54

(independent judgment rather than rote obedience to legislative instructions); Jerry Mashaw, As if

Republican Interpretation, 97 YALE L.J. 1685, 1692 (“[t]he judge as monitor or creative lawgiver . . . is

not sharply distinguishable from the judge as faithful agent of the legislature.”).

3. Purposivists consider statutory language, legislative history, policy and other reliable sources.

ROBERT A. KATZMANN, JUDGING STATUTES 36 (2014). While purposivist courts may look outside the

text, they endeavor to identify Congress’ objective intent and “achieve consistency of solution.” HENRY

M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND

APPLICATION OF LAW 119 (William N. Eskridge, Jr. & Phillip P. Frickey eds., 1994).

4. Strict textualists look only at statutory text and only give meaning to identif‌iable objective

statutory purpose that is clear from the text. Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 33 (2012). Textualists may acknowledge external proof of statutory

purpose but, if those sources contradict a text’s plain meaning, the text will win out. Jonathan T. Molot,

The Rise and Fall of Textualism, 106 COLUM. L. REV. 1, 69.

5. Deepwater Penalty Ruling, 148 F. Supp. 3d at 566.

2 THE GEORGETOWN ENVTL. LAW REVIEW [Vol. 33:1

the largest oil spill in U.S. history:

6

Fifty miles from Louisiana’s coast and a mile

below the surface,

7

at least 4 million barrels (168 million gallons) were dis

charged.

8

Eleven men died and seventeen were seriously injured from the explo-

sions and f‌ires aboard the rig.

9

As many as 90,000 people from ninety different

organizations mobilized for the spill response, which cost approximately $14 bil-

lion.

10

Many responders reported acute and long-term health effects from expo-

sure to oil and chemicals used in the response.

11

Over 3,000 spill-related cases,

including more than 100,000 claimants, have been f‌iled since 2010.

12

As Judge

Carl Barbier, who presided over cases arising from the spill, explained: “the seri-

ousness of [the Deepwater spill] cannot be overstated. The oil spill was extremely

serious. It was gravely serious. It was a massive and severe tragedy.”

13

Yet, in the years since Deepwater, oil spills continue to be a major source of

water pollution,

14

posing pervasive and ongoing threats to the environment and

6. Largest Oil Spills Affecting U.S. Waters Since 1969, NAT’L OCEANIC & ATMOSPHERIC ADMIN. OFF.

OF RESPONSE & RESTORATION, https://perma.cc/5WM6-VH5L (last visited Feb. 14, 2020).

7. Carl Saf‌ina, The 2010 Gulf of Mexico Oil Well Blowout: A Little Hindsight, 9 PLOS BIOLOGY 1, 1, 4

(2011), e1001049 (explaining that the distance from the surface of the Gulf of Mexico to the sea f‌loor was

one mile and the distance from the seaf‌loor to the bottom of the well was just over 4 km (about 2.5 mi)).

8. Deepwater Penalty Ruling, 148 F. Supp. 3d at 568 (f‌inding that 4 million barrels were discharged

and 3.19 entered the Gulf). But see Igal Berenshtein, Claire Paris, Natalie Perlin, Matthew Alloy,

Samantha Joye, & Steve Murawski, Invisible Oil Beyond the Deepwater Horizon Satellite Footprint, 6

SCIENCE ADVANCES 1, 1–2 (2020) (concluding that the total may be 30 percent more than what was

listed in the court’s ruling).

9. Deepwater Penalty Ruling, 148 F. Supp. 3d at 565.

10. Id. at 568; Deepwater Horizon: Response in the Midst of an Historic Crisis, NAT’L OCEANIC &

ATMOSPHERIC ADMIN. OFF. OF RESPONSE & RESTORATION, https://perma.cc/25UZ-Y4RZ (last visited

Feb. 14, 2020).

11. Jennifer Rusiecki, Melannie Alexander, Erica Schwartz, Li Wang, Laura Weems, John Barrett,

Kate Christenbury, David Johndrow, Rene

´e Funk, & Lawrence Engel, The Deepwater Horizon Oil Spill

Coast Guard Cohort Study, 75 JOURNAL OF OCCUPATIONAL & ENVTL MED. 165, 165 (2018) (f‌inding

“positive associations between crude oil exposure and various acute physical symptoms among

responders, as well as longer term health effects” with over 50 percent of 53,519 responders surveyed

reporting exposure to oil); Sara Sneath, 8 Years After BP Oil Spill, Thousands of Medical Claims Still

not Paid, THE TIMES-PICAYUNE (Apr. 20, 2018, 1:18 PM), https://www.nola.com/news/environment/

article_50997394-26d7-50c2-9a64-1a7d1eec1d45.html.

12. Deepwater Penalty Ruling, 148 F. Supp. 3d at 566.

13. Id. at 570.

14. See, e.g., Emily Cassidy, There Were 137 Oil Spills In The Us In 2018. See Where They

Happened, RESOURCE WATCH: BLOG (FEB. 7, 2019), https://perma.cc/HXN5-KTDP; see also BUREAU

OF OCEAN ENERGY MGMT., 2016 UPDATE OF OCCURRENCE RATES FOR OFFSHORE OIL SPILLS 76, (2016),

https://perma.cc/ZJ66-96FZ [hereinafter BOEM 2016 UPDATE] (reporting 725 spills on the Outer

Continental Shelf between 2001 and 2015 from platforms and pipelines); Offshore Incident Statistics,

BUREAU OF SAFETY & ENVTL. ENFORCEMENT, https://perma.cc/Q3WJ-TLHR (last visited Oct. 26, 2020)

(reporting 383 small spills of oil, drilling mud, and other chemicals from drilling platforms from 2007–

2015); J. M. Weber & R. E. Crew, Jr., Deterrence Theory and Marine Oil Spills: Do Coast Guard Civil

Penalties Deter Pollution? 58 J. OF ENVTL. M GMT. 161, 161 (2000) doi:10.1006/jema.1999.0326 (“The

long-term impacts of [small] spills can have huge consequence for marine ecosystems.”); Indeed, even

“safe” deepwater drilling practices have negative environmental impacts due to small but pervasive

discharges of oil and other toxic chemicals. See Oistein Johansen, Henrik Rye & Cortis Cooper, Deep

Spill–Field Study of a Simulated Oil and Gas Blowout in Deep Water, 8 SPILL SCI. & TECH. BULL. 433,

2020] A CANARY IN A COAL MINE 3