Do as I say and not as I do: the United States' immunity in oil spill response actions.

• Author: Higgins, Mark M.

"I really don't know why it is that all of us are so committed to the sea, except I think it is because in addition to the fact that the sea changes and the light changes, and ships change, it is because we all came from the sea. And it is an interesting biological fact that all of us have, in our veins the exact same percentage of salt in our blood that exists in the ocean, and, therefore, we have salt in our blood, in our sweat, in our tears. We are tied to the ocean. And when we go back to the sea, whether it is to sail or to watch it we are going back from whence we came." (1)

1. INTRODUCTION

   Residents of the states bordering the Gulf of Mexico have more in common with their part of the sea than only salt content. (2) Affecting the well-being of Gulf residents, the Deepwater Horizon oil spill was the largest in United States history, and efforts to respond to the disaster were similar in scale. (3) Neither the United States government nor the responsible party was prepared to mitigate the risks present in deep-sea oil exploration. (4) The lack of preparation and size of the spill forced responders to consider and implement untested strategies. (5)

   Private actors must consider the potential liability of their actions. (6) Government, shielded by sovereign immunity, does not need to utilize the same calculations. (7) This Note will suggest that government should waive its sovereign immunity during oil spill response actions in light of the controversies surrounding the Macondo Well blowout. (8) This Note argues that united States government response efforts were detrimental to the national welfare and, although a similarly situated private party would be liable for the citizens' injuries, the United States will not be held accountable. (9)

   This Note will begin by outlining the initial events of the blowout. (10) Then it will present the government's contingency plan in case of an oil spill. (11) This Note will then compare the government's plan to the actual events that occurred. (12) Next, this Note will examine the decision to utilize dispersants to combat the oil spill. (13) The Note will continue to the successful containment of the spill. (14)

   Next, this Note will outline the government's lawsuit to recover costs against British Petroleum and other parties. (15) An examination of the workings of the oil Pollution Act and the doctrine of sovereign immunity will follow to highlight possible defense strategies of the defendants. (16) Additionally, this Note will outline the role of citizen suits in environmental regulation. (17) Finally, this Note will analyze the lack of remedies available to citizens when the government is the party responsible for pollution in oil spill responses, focusing on the government's lack of accountability following the Deepwater Horizon oil spill. (18) This Note argues that the government should waive its sovereign immunity in oil spill response actions. (19)

2. HISTORY

   1. The Well Blows Out

      On April 20, 2010, the Modular Offshore Drilling Unit Deepwater Horizon caught fire as the result of a blowout. (20) The rig exploded before sinking, killing eleven men. (21) The United States Coast Guard (USCG) immediately responded and began what would become a 152-day fight to contain and close a "spill of national significance" in the Gulf of Mexico. (22)

      British Petroleum (BP) owned Deepwater Horizon and became the focus of the public's anger shortly after the spill began. (23) The United States Government named BP a "responsible party" in the disaster. (24) The consensus among media reports was that BP would face both heavy civil penalties and possible criminal charges. (25) Relying on the Clean Water Act of 1973 (CWA) and the Oil Pollution Act of 1990 (OPA), the government filed a complaint on December 15, 2010 seeking compensation from BP as a "responsible party" for the cleanup. (26)

   2. The National Contingency Plan

      The National Oil and Hazardous Substances Pollution Contingency Plan (NCP) is a series of regulations outlining government responses to hazardous substance discharges. (27) The CWA, the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), and the OPA impose duties upon the President who then delegates the duties and accompanying powers to various federal agencies through the National Response Team (NRT). (28) The NRT has representatives from a variety of federal agencies. (29) The NRT is responsible for establishing procedures, evaluating responses, and coordinating the various subcomponents of the NCP. (30)

      The NRT coordinates the preparation and planning of national incidents and coordinates the thirteen Regional Response Teams (RRTs). (31) The RRTs are in charge of preparing and planning regional responses to any discharge or release within their geographic boundaries. (32) The RRTs manage a Regional Contingency Plan and Area Contingency Plans (ACPs). (33) These ACPs outline, among other aspects, areas of special economic or environmental concern, local response resources, and the manner by which the ACP coordinates with other ACPs. (34)

      The NCP creates a seamless top-to-bottom emergency chain of command that activates upon notification of a hazardous release to the National Response Center (NRC) with the On-Scene Coordinator (OSC) maintaining authority. (35) The OSC first assesses the magnitude of the release. (36) If the release is not threatening to the public health and welfare of the United States, then the responsible party may direct response efforts. (37) If the release does threaten the health and welfare of the United States, or the responsible party does not perform removal adequately, the OSC retains the authority to direct the release response. (38) In the event the USCG Commandant declares a "spill of national significance" in a coastal zone, the Commandant then names a National Incident Commander to direct all responses to combat the release. (39) The government must thoroughly document all response efforts to recover costs incurred using the Oil Spill Liability Trust Fund under the CWA. (40)

   3. History of the Macondo Well

      In May 2008, BP Exploration & Production Company executed a lease agreement with the United States Minerals Management Service for "Block 252, Mississippi Canyon, OCS Official Protraction Diagram, NH 16-10." (41) Over the course of the next eighteen months, BP became co-lessees with MOEX Offshore 2007, LLC and two companies utilizing the shared name Anadarko. (42) BP contracted with Transocean to drill the Macondo Well. (43)

      Drilling began in October 2009 with the Transocean Marianas. (44) In March 2010, the Transocean Marianas was replaced at the Macondo Well by the Modular Offshore Drilling Unit Deepwater Horizon. (45) On April 20, 2010, the Macondo Well experienced a blowout containing oil and methane resulting in Deepwater Horizon's explosion. (46) Recovery efforts rescued ninety-four crewmembers, but the USCG ceased searching for the remaining eleven crewmembers three days after the explosion. (47) The rig burned for two days before sinking on April 22. (48)

   4. The Spill

      The Macondo Well began leaking at the same time the blowout occurred. (49)

      On April 21, Rear Admiral Mary Landry, USCG, was named the OSC pursuant to the NCP. (50) As the size of the spill and the inability of BP to combat it became apparent, Secretary Janet Napolitano of the Department of Homeland Security designated the Macondo spill a "spill of national significance" and named Admiral Thad Allen, USCG Commandant, as the National Incident Commander to coordinate the response to the spill on the national level. (51)

      By the second day of the spill, the government and BP acknowledged that hydrocarbons were escaping at the seafloor and that BP's blowout preventer, a last resort safety device, had failed. (52) The initial estimate of oil flow into the Gulf was 1000 barrels of oil per day, but BP and the government continued to revise their estimates upwards until the estimate was about 60,000 barrels of oil per day. (53) As the size of the spill became apparent, offers and ideas to assist in combating the spill poured in from all over the globe. (54)

      With the memory of the Exxon Valdez fresh in the minds of the responders, the OSC prioritized recovery efforts that would protect the Gulf Coast wetlands. (55) Workers placed millions of feet of boom around fragile shoreline habitats and burned off oil slicks thick enough to sustain a flame. (56) Unlike the Exxon Valdez spill, responders used dispersants as a major response strategy. (57)

   5. Dispersants

      Oil breaks down naturally through wave action, heat, light, and microbial digestions. (58) Thick oil slicks break down more slowly than thin sheens, which break down more slowly than droplets. (59) Applying this science, the oil industry asserted that dispersing the oil might lead to more effective oil spill fighting. (60) Admiral Landry promptly authorized the use of dispersants to combat the oil spill and BP began spraying Corexit from both government and private airplanes. (61) Several companies developed dispersants that the EPA added to the NCP's Product Schedule. (62)

      While many scientists supported the use of dispersants, others argued against dispersants because point-source pollution is easier to respond to than dispersed pollution. (63) Deepwater Horizon, however, was spewing crude oil almost a mile under the sea, and BP suggested applying dispersants close to the well in hopes that more direct application would ultimately lead to less dispersants being used. (64) The EPA and BP scientists worked to create compliance standards and ways to monitor the application of dispersants directly at the wellhead. (65) In a controversial decision, the government permitted BP to proceed with the plan. (66)

      Concerns about the toxicity and unprecedented amounts of Corexit being released into the environment prompted the EPA to request that BP consider safer alternatives to Corexit or...