Deepwater Horizon: Updating the OPA

• Pages: 46-47

Page 46 ❧ THE ENVIRONMENTAL FORUM Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, Sept./Oct. 2010

THE FORUM

Deepwater Horizon:

Updating the OPA

T

he history of oil pollution legislation has

tracked closely with oil spill disasters,

from the Santa Barbara blowout in 1969,

which led to the National Environmental

Policy Act, to the Exxon Valdez in 1989,

which resulted in the enactment of the Oil Pollu-

tion Act of 1990. is year’s Deepwater Horizon

disaster may well be unprecedented in terms of its

scope and nature, and because industry and regula-

tors were not prepared for such a massive spill at a

depth of over 5,000 feet, this incident may similarly

spur the development of new legislation.

Recent discussions on this front have focused

on the OPA’s $75 million per-incident cap on eco-

nomic damages and the Oil Spill Liability Trust

Fund’s $1 billion cap for all restoration costs, dam-

ages, and lost use claims. e cap is not an absolute

limit — it may be lifted in cases of “gross negli-

gence, willful misconduct or violation of a federal

safety, construction or operating regulation” and it

does not apply to remedies available under state or

nonstatutory (for example, tort) law.

Taken together, one of the immediate ques-

tions facing legislators today is whether the avail-

able suite of statutory and nonstatutory remedies is

adequate to make the public whole following this

year’s ecological, economic, and social disaster —

and to help prevent spills from occurring, which

is perhaps the more important point. What can

and should be done to reform the system? Given

how long it took to identify and assess the damages

caused by the Exxon Valdez incident, how long will

it be before we have the information necessary to

do so?