The Importance of Determining Potential Chronic Natural Resource Damages From the Deepwater Horizon Accident

• Date: 01 November 2010

40 ELR 11100 ENVIRONMENTAL LAW REPORTER 11-2010

The Importance of Determining

Potential Chronic Natural

Resource Damages From the

Deepwater Horizon Accident

by Matthew P. Coglianese, Ph.D.

Matthew P. Coglianese is a par tner with the rm Rasco Klock in Coral Gables, Florida. He formerly was an

Assistant Regional Counsel at U.S. EPA, Region 4, and a senior attorney at a major petroleum company.

Now that BP has stopped the ow of oil into the

Gulf of Mexico from the Deepwater Horizon rig,

scientists and regulators are in the initial stages of

making a concerted eort to determine where the oil (and

dispersants) went, in what form, and what, if anything, this

means to the biota of the Gulf. Biologists, ecologists, and

other scientists have the gargantuan task of trying to sort

out, characterize, and quantify the scope and degree of the

biological eects of the spill on Gulf and estuarine ecosys-

tems. is is a multidisciplinary eld and laboratory eort

involving state and federal agencies, educational institutions,

and hundreds of scientists and laboratories. It will take many

years to complete. And, while eorts to catalogue the acute

eects of the spill are winding down, eorts to understand

chronic, sublethal, and cumulative eects have only begun.

is will certainly be a complex and time-consuming process

that will generate enormous amounts of data and numerous

scientic papers. It is a daunting task. Even the establishment

of the research protocols that scientists will use to determine

such eects is a monumental task in itself.1

e purpose of this Article is to provide an introduction

into the legal mechanisms a nd regulatory framework within

which the government and the responsible parties will seek

to determine the damage that the spill has caused to Gulf of

Mexico fauna. e Article specically emphasizes the impor-

tance of fully determining the longer term or chronic, and

sublethal eects of the spill on marine and estuarine organ-

isms while working within that framework.

e federal government is in cha rge of coordinating,

funding, and implementing the eorts to determine natu-

ral resource da mages due to the BP spill and to hold the

responsible parties accountable for the restoration of lost and

damaged natural resources.2 ere are several statutes and

1. At least there is the opportunity to establish baselines and protocols, crucial

elements of proper comparative biological or physiological analyses but gener-

ally lacking in the initial eorts to gauge the acute eects of the spill.

2. BP is also involved in these eorts.

implementing regulations through which the federal govern-

ment and its partners will seek to accomplish these tasks.3

I. The Legal Framework for Determining

Natural Resource Damages

e 1990 Oil Pollution Act (OPA)4 sets the stage for a natu-

ral resource da mage assessment (NRDA) for the biological

and ecosystem eects from the oil, surfactants, and other

anthroprogenic elements of the Deepwater Horizon event.

An NRDA is a legal process to determine the type and

amount of restoration needed to compensate the public for

harm to natural resources and their human uses that occur

as a result of an oil spill.5 Under the OPA, the National Oce-

anic and Atmospheric Administration ( NOAA) is the fed-

eral agency charged with completing an NRDA, through

its Damage Assessment, Remediation, and Restoration Pro-

gram (DARRP).6 DA ARP is comprised of several NOAA

oces, namely t he Damage Assessment Center, the Oce

of General Counsel for Natural Resources, and the Restora-

tion Center. e price tag for the natural resource restoration

process is paid by the responsible par ties. Under even nor-

mal circumstances, the fact-nding and legal processes are

3. e states also have their own statutory and regulatory frameworks regarding

liability and damages for the Gulf oil spill.

4. 33 U.S.C. §§2701-2761, ELR S. OPA §§1001-7001 (1990).

5. Section 1006(e)(1) of the OPA requires that the National Oceanic and At-

mospheric Administration (NOAA) develop regulations for the assessment of

NRD that may result from a discharge of oil (except for any part of oil dened

as a “hazardous substance” by CERCLA). NOAA’s regulations provide a frame-

work for conducting NRDAs that achieve restoration under the OPA. NOAA’s

NRDA regulations include the three phases described below. Natural Resource

Damage Assessments, 15 C.F.R. §990 (1996).

6. e U.S. Department of the Interior’s (DOI’s) Natural Resource Damage As-

sessment and Restoration Program is also involved in the damage assessment

and calculation of the cost of the restoration, interim loss of use of the land

or natural resource by the public, and the money DOI’s Restoration Program

spends to assess damages. Natural Resource Damage Assessments are also con-

ducted by the U.S. Environmental Protection Agency (EPA) for inland spills

and hazardous waste incidents.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.