398 LOUISIANA LAW REVIEW [Vol. 74
After the Deepwater Horizon oil spill,1 BP did something
remarkable. It voluntarily (well, with a little prodding from
President Obama2) set up an administrative program, the Gulf Coast
Claims Facility (GCCF),3 that aimed to fully compensate all of the
victims of the spill. The GCCF’s funding was uncapped. BP brought
in the nation’s preeminent independent claims administrator,
Kenneth Feinberg, to run the program, free from BP’s interference.
BP paid all of the expenses. And it backed up all of this by setting
aside $20 billion in a trust fund, with an open-ended commitment
should that amount prove insufficient.4
In theory, the GCCF should have resolved the private claims
against BP in a streamlined and efficient manner. As envisioned
under the Oil Pollution Act of 1990 (OPA),5 the GCCF operated as a
private dispute resolution process that would offer swift recompense
in an informal administrative setting, allowing both claimants and
BP to realize savings over traditional litigation. This settlement
structure under OPA, again at least in theory, should have been the
best of all worlds.
To make sure that compensation reaches victims without undue
delay after an oil discharge, OPA makes the primary “responsible
party,” designated by the Coast Guard, strictly liable for all cleanup
costs and resulting economic harms and only later allows that party
to seek contribution from other potential wrongdoers in subsequent
proceedings.6 The statute requires the responsible party to set up and
publicize a procedure for expeditiously settling and paying claims—
including claims for interim, short-term damages—presented by
1. For a dra matic account of the events leading to the explosion and sinking
of the Deepwater Horizon oil drilling rig, see JOHN KONRAD & TOM SCHRODER,
FIRE ON THE HORIZON (2011).
2. President Barack Obama, Remarks by the President to t he Nation on the
BP Oil Spill (June 15, 2010), available at http://www.whitehouse. gov/the-pres s-
3. See BDO CONSULTING, INDEPENDENT EVALUATION OF THE GULF COAST
CLAIMS FACILITY REPORT OF FINDINGS & OBSERVATIONS TO THE U.S.
DEPARTMENT OF JUSTICE, app. ex. L (Gulf Coast Claims Facility Protocol for
Emergency Advance Payments) (June 5, 2012), available at http://www.justice
.gov/iso/opa/resources/66520126611210351178.pdf [hereinafter DOJ AUDIT].
4. Press Release, The White House, FACT SHEET: Claims and Escrow
(June 16, 2010), available at http://www.whitehouse.gov/the-press-office/fact-
5. 33 U.S.C. §§ 2712−13 (2006).
6. Id. § 2702(a), (d)(1)(B). See also id. §§ 2709, 2715; In re Oil Spill by the
Oil Rig “Deepwater Horizon” in the Gulf of Mex., on Apr. 20, 2010, 808 F. Supp.
2d 943, 959 (E.D. La. 2011).