Need to Know Ecosystem Status Prior to a Spill

• Author: Kathryn Mengerink
• Position: Attorney and scientist, is Director of the Ocean Program at the Environmental Law Institute
• Pages: 49-49

SEPTEMBER/OCTOBER 2010 ❧ Page 49

Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

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

Th e fo r u m

Need to Know

Ecosystem Status

Prior to a Spill

K M

An oil spill statutory over-

haul should include more

than increasing the li-

ability cap under the Oil

Pollution Act. It should

mandate and provide funding for

baseline ecosystem assessments in

advance of oil and gas activities.

Under current law, responsible

parties are only liable for known in-

juries to natural resources. But many

injuries will not be known because

baseline conditions may not be

knowable once a spill has occurred.

erefore, updating the OPA should

begin with a mandate to conduct

temporally and spatially explicit

ecosystem assessments in ocean and

coastal waters in order to establish

the baseline upon which to assess

injury. Such ecosystem assessments

could be integrated into contin-

gency plans to inform spill response

and cleanup ef‌forts. ey could also

inform broader ocean development

and planning ef‌forts.

Responsible parties are liable for

injuries to natural resources, includ-

ing cost of restoration, decreased

value of resources pending restora-

tion, and cost of damage assessment.

Injury is def‌ined by regulations as

“an observable or measurable ad-

verse change in a natural resource

or impairment of a natural resource

service.” erefore, liability ex-

tends only to those injuries that are

known — and knowing the “adverse

change” requires knowing the base-

line conditions upon which to mea-

sure that change.

Federal guidance encourages

pre-incident planning, including

collection of baseline data and

identif‌ication of natural resources

and services that are vulnerable to

oil spills. However, while much is

known about commercially relevant

f‌ish species and many endangered

and threatened species, scientists do

not have comprehensive spatially

and temporally explicit information

for ocean and coastal resources to

understand pre-spill ecosystem con-

ditions that can serve as the baseline

for natural resource damage assess-

ment. is is especially true for deep

waters and remote areas like the Arc-

tic that are now being considered for

expanded oil and gas development.

Under current practice, assess-

ments are often conducted after a

spill has occurred. For example, a

recent federal press release points

out that the natural resource damage

working group for the BP oil spill is

now “collect[ing] baseline (pre-spill

impact) data wherever possible.”

Such post-hoc analysis of injured

ecosystems to determine the baseline

upon which to measure impacts is

a fundamentally f‌lawed approach.

As the BP oil spill demonstrates, the

federal government and scientif‌ic

organizations do not have the ap-

propriate monitoring and response

mechanisms in place to comprehen-

sive identify and evaluate oil spill

impacts once they occur. is means

that resources may be destroyed

long before detection, and therefore

injuries will go undetected and un-

mitigated.

e solution to this problem is

to mandate baseline ecosystem as-

sessments prior to authorizing oil

and gas activities. Ideally an eco-

system assessment should include a

geospatially and temporally explicit

map, so that if a spill occurs, those

responding will have a comprehen-

sive reference. Such a map should

indicate key habitats and species

that may be most vulnerable to im-

pacts at any given time of the year. It

also should be updated on a regular

basis as new information becomes

available.

Understanding the ecosystem

baseline in advance of an accident

has much greater utility than simply

informing the natural resource dam-

age assessment process. It also can

serve to support emergency response

by providing a comprehensive pic-

ture of key habitats and species at a

given point in time. It can provide

information useful for siting other

economic developments in the

ocean, including alternative energy

development sites, shipping lanes,

and protected areas. Ultimately it

can provide the scientif‌ic underpin-

nings for coastal and marine spatial

planning.

One of the major reasons that so

little is known about the oceans —

scientists often comment that there

is more known about outer space

than the deep sea — is the lack of

funding available to undertake the

required research. erefore, provi-

sions to provide funding for eco-

system assessments should be part

of any OPA amendment package.

Funding for ecosystem assessments

could come from a dedicated por-

tion of the Oil Spill Liability Trust

Fund or by the creation of a new

fund for ocean and coastal research.

Kathryn mengerink, an attorney and sci-

entist, is Director of the Ocean Program at

the Environmental Law Institute.