stein@huffingtonpost.com | HuffPost ReportingExxon Valdez Lawyer: Louisianans, 'To Use A Legal Term,' Are 'Just F--ked'Long after oil stops spilling from the Gulf and the ecological catastrophe caused by the spill begins to be cleaned up, the process of determining the extent to which BP owes the afflicted will be litigated in the courts.
And while the case against the oil company seems fairly clear-cut (BP admits, after all, to being responsible for the worst environmental disaster in U.S. history), a lawyer with perhaps the most relevant experience on the matter at hand is painting a depressing picture about the litigation ahead.
"[I]f you were affected in Louisiana," said Brian O'Neill, an attorney with the firm Faegre & Benson, "to use a legal term, you are just f--ked."
More than any attorney in the country, O'Neill personally understands the implications of that imprecise legal term. For more than two decades, he represented fishermen in civil cases related to the now second-most-damaging spill in U.S. history: the Exxon Valdez spill in 1989. And from it, he learned valuable lessons about how to sue an oil giant for the damages it has caused -- above all, to push for the best and plan for the worst.
"In Valdez we had 32,000 legitimate claims -- that was a lot," he said in an interview with the Huffington Post. "I think there will be more claims in this one."
"These big oil companies, they have a different view of time and politics than we do," he added. "The fact that BP hard-asses it a little bit for 5 to 10 to 15 years, despite all the bad publicity there may be between segments of society and BP as a result [of this spill]. Exxon sure weathered it really well. The market went up the next day for Exxon stock [after the settlement]. They just thrived despite treating an entire state poorly. And there is a lesson there for BP, and that is: it really doesn't matter whether you treat these people nicely or not. The only difference is if you extract oil. It sounds cynical but it might be true."
The similarities between the two crises are telling in many ways. When Exxon's ship hit Prince William Sound's Bligh Reef -- in the process, releasing an estimated minimum of 10.8 million gallons of oil into the water -- the company pledged (like BP has done now) that they would cover the entire cost of the cleanup and all legitimate claims of damages. Two decades of litigation and appeals resulted in punitive damages being reduced from $5 billion to $500 million.
The irony, as O'Neill tells it, is that the law Congress passed in the wake of that spill -- the Oil Pollution Act of 1990 -- may end up hindering the type of relief that Gulf residents can expect currently. Under that legislation, a $75 million cap was placed on economic damages that an oil company can pay as a penalty for a spill (this isn't true, O'Neill notes, in states that have passed their own liability caps -- of which Louisiana isn't one). Congress is currently trying to lift that cap. But there are constitutional questions about whether it can do so retroactively to cover BP.
"Constitutionally, I don't know whether you can do that. I don't know whether it is ex post facto," O'Neill said. "It will likely be challenged. I would, if I was representing BP."
There are other problems that the Exxon Valdez vet recognized when discussing the forthcoming courtroom battles for BP. There are questions, for starters, as to who actually can sue the oil company under the Oil Pollution Act law and whether, in fact, those 11 workers killed on the rig will have their settlements capped by the Death On the High Seas Act. Mainly, however, O'Neill is concerned over the pervasive influence that the oil industry has on all sector of governance -- which he predicts will weigh heavily on the legal process.
"This is more important than banks," he said. "This is oil. And at some point in time, the administration and the states will resolve all their dealings and it will leave fisherman and the tourist industry to resolve their differences in the courts. It could be another 20 years till then because BP [is] going to defend this like Exxon did."
GULF DISASTER:END OFFSHORE OIL DRILLINGNOW
This Web site is updated daily — check back for the most up-to-date information. (Last updated: June 12, 11:38 a.m. MST) HOW BIG IS THE SPILL? BP initially asserted that 1,000 barrels of oil per day (42,000 gallons) were gushing forth from the broken pipeline. A May 27 estimate from federal government scientists placed the leak rate at between 12,000 and 19,000 barrels per day. On June 10, a government panel doubled its estimate of oil spewing from the BP well: 25,000 to 30,000 barrels (1.26 million gallons per day), but perhaps up to 40,000 barrels per day. The new estimate is for the period before BP cut a pipe on the ocean floor last week to install a new capture device, an operation that may have increased the flow by four to five percent. The BP disaster has already become the worst oil spill in U.S. history (at 1.26 million gallons, an amount equivalent to the Exxon Valdez disaster flows into the Gulf of Mexico every eight to ten days.) The spill is now the second worst world-wide accidental oil spill in history, but is rapidly gaining on the first, the Ixtoc oil well blowout in the southern Gulf of Mexico in 1979 that leaked 138 million gallons of crude. If the wellhead fails completely — which hasn’t happened yet — the spill rate could increase to 6.8 million gallons of oil per day.On May 19, heavy oil landed for the first time on the delicate marshes near the mouth of the Mississippi River. On May 23, government officials announced that they were directing all water flows from diversions along the Mississippi River out to the Gulf in a desperate attempt to keep more heavy oil from entering the Mississippi Delta. Officials fear that once oiled marsh vegetation dies, the coastal islands and coastlines it holds together will disintegrate. That will accelerate Louisiana’s already serious coastal-erosion problems and obliterate key fish and wildlife habitat. Oil and oily debris have reached key bird breeding sanctuaries, including Raccoon Island and Breton National Wildlife Refuge. Oil-covered gannets, egrets, and brown pelicans have been found, and the refuge was closed to the public for safety reasons. The area provides key nesting and migratory stopover habitat for thousands of birds, as well as important fishery habitat. On June 1, heavy oil reached Alabama's white sandy beaches of Dauphin Island. The stench of crude permeates coastal areas, where it’s causing headaches, burning eyes, and nausea among the people who live there and more serious illness among cleanup workers. All in all, the spill has impacted 150 miles of coastline as of May 24, with more heavy crude on the way. Officials reported that an oil sheen had made its way just off the coast of Penscacola, Florida on June 1. Federal and state officials now plan to build miles of sand berms in an attempt to prevent more oil from reaching Louisiana’s fragile coast. Many worry, however, that building such berms could deplete the area’s sediment supply and undermine natural wetlands, rendering the area especially vulnerable to hurricane damage. Plugging one of the three leaks in BP’s crumpled pipeline has failed to slow the gush of oil, and BP’s next-best hope of drilling an adjacent well to relieve the pressure from the damaged well, so it can be capped, will not be complete until at least August. BP attempted to contain the spill with a giant steel box placed over the leaks, but put aside the effort after frozen gas hydrates clogged the funnel. On May 16, BP managed after several attempts to fit a tube into the leaking pipe. On May 20, the company reported that the pipe was capturing about 5,000 gallons per day. On May 26, BP began attempts to implement its “top kill” procedure, a method of plugging the well by pumping fluid similar to antifreeze up the pipe to stop the flow of oil, then capping it with cement. The procedure has never been tried in deep water and, if it fails, could blow failsafe systems and dramatically worsen the spill. Late on May 29, BP announced that the “top kill” method had failed.On June 3, BP announced that it had successfully severed the leaking pipe and put in place a containment dome. By June 10, BP reported it had captured about 15,800 barrels the day before, but significant amounts of oil are still escaping. The amount of oil still spewing from the cut riser has some experts believing that BP’s latest attempt to kill the leak actually made it much worse. The federal government now admits that the leakage rate is likely at least 25,000 barrels — more than one million gallons — per day. Some experts estimate that if BP continues to hit snags in its efforts to stop the leak, it could keep gushing through next December. On June 4, 2010, Department of Homeland Security Chief Janet Napolitano and National Incident Commander Admiral Thad Allen sent aletter to Congressional leaders warning that the response effort was in danger of running out of money within two weeks and needed cash from the federal oil spill liability trust fund, financed by fees on oil companies. The letter said that as of June 1, federal agencies had already spent $93 million on the spill response, which BP has yet to reimburse. In comparison, in the first quarter of the year, the London-based oil giant's profits averaged $93 million a day. Florida Governor Charlie Crist on June 3 sent a letter to BP asking for $50 million, then on June 4 sent a letter asking for an additional $100 million to pay for evaluating water conditions and help scientists find ways to combat the threats to Florida waters and beaches. Florida has already received $50 million from BP.HOW FAST IS IT SPREADING? The most recent satellite images show that the various surface oil slicks and sheens believed to be associated with the BP spill may cover as much as 28,950 square miles (about the size of South Carolina). The surface sheen has stretched towards north toward the Mississippi Delta, west toward Port Fourchon, and southeast toward the Loop Current and western Florida. On June 1, the National Oceanic and Atmospheric Administration reported that southerly and southwesterly winds could push oil onto the shores of Mississippi and Alabama within days. Compare the size of the spill to your city. Satellite images also indicate that oil has reached the Loop Current, which forms part of the Gulf Stream and flows between Cuba and the Yucatan peninsula and eventually exits through the Florida Straits. Oil and tar entrained in this current could make their way around the southern tip of Florida and the Florida Keys, and into the Atlantic Ocean all the way up to Cape Hatteras, North Carolina. The oil could foul beaches, mangroves, sea-grass beds, and coral reefs — all of which are crucial to coastal wildlife and economies. On May 21, scientists reported that an apparent natural shift in the Loop Current may move it away from the oil and offer Florida and the Atlantic coast at least a temporary reprieve from receiving more oil. Oil residue and tar balls have already been observed on Dry Tortugas, which lies west of the Florida Keys and similarly hosts an abundance of marine life. On June 3, the Coast Guard confirmed that oily sheen and tar had been found along several of the Florida Keys. The government tested the oil to determine whether it came from the Deepwater Horizon spill, and determined that it’s not likely from the oil spill. Oil sheen and tar balls from the spill, however, have washed up on the beaches of the Florida Panhandle. In addition, oil birds have started showing up on Texas beaches as of June 6. The Coast Guard now believes that the spill has spun off hundreds of thousands of smaller oil slicks, which are being spread in different directions by winds and currents. See the National Oceanic and Atmospheric Administration’s daily map of the spill.BP is flooding the surface and deep ocean with hundreds of thousands of gallons of toxic chemical “dispersants” in a desperate attempt to keep the visible surface slick in check. These chemicals bind with oil droplets so that they sink and become “dispersed” by currents. As of June 9, more than 803,000 gallons of dispersants have been applied on the surface and 368,000 gallons have been pumped deep into the water column in an effort to dilute the oil. The effects of using dispersants at such depths or in such enormous volumes have not been tested. Moreover, Corexit, the dispersant that BP is pumping into the Gulf, has been banned in the United Kingdom due to concerns that it posed too much harm to the marine environment. On May 24, the U.S. Environmental Protection Agency announced that it would require BP to reduce dispersant use on the surface by at least half, but would allow untested subsurface applications to continue. The agency said it was conducting its own tests of the toxicity of various dispersants after BP refused EPA’s order to switch to a less toxic brand. On June 2, the Center filed a notice of its intent to sue the Environmental Protection Agency for authorizing the use of toxic dispersants without ensuring that these chemicals would not harm endangered species and their habitats. The letter requests that the agency, along with the U.S. Coast Guard, immediately study the effects of dispersants on species such as sea turtles, sperm whales, piping plovers, and corals and incorporate this knowledge into oil-spill response efforts. On June 4, a federal panel of about 50 experts recommended the continued use of chemical dispersants to break up the oil gushing in the Gulf of Mexico, despite its harm to plankton, larvae and fish.Learn more.Much of the oil remains underwater. On May 16, reports revealed the discovery of enormous oil plumes deep in the Gulf. One of these plumes currently measures 10 miles long, three miles wide, and 300 feet thick. The plume has already sucked nearly one-third of the oxygen from the water surrounding it. On May 28, researchers announced they had found another deepwater oil plume about 20 miles northeast of the collapsed Deepwater Horizon rig. They believe that the 22-mile-long and six-mile-wide plume of oil droplets, hovering more than two miles below the surface, may have resulted from BP’s excessive use of dispersants. Scientists fear that, in addition to poisoning plants and animals at the base of the food web, the oil could cause oxygen levels to drop to levels that would create large “dead zones.” In addition, the submerged oil may end up settling on valuable coral formations in the Gulf, like the Flower Gardens. Scientists say it’s unlikely that any part of the Gulf ecosystem will escape the ill effects of oil and dispersants. On June 2, scientists reported that some of the underwater plumes appear to be located in the vicinity of at least two recently discovered deepwater reefs. At this point, it’s unclear whether oil has settled on these reefs yet.Astoundingly, BP has flatly refused to help scientists gather the information necessary to determine just how much oil is really spewing into the Gulf ecosystem. WHAT SPECIES ARE THREATENED? The BP oil spill threatens some of the most productive — and fragile — marine ecosystems in the United States. About 25 percent of the nation’s wetlands lie in the Mississippi River Delta, providing habitat for nesting seabirds and resting migratory birds. The Gulf itself is home to dozens of threatened and endangered species, as well as commercially important fish, crab, and shrimp that provide much of the basis of the Gulf Coast economy. While the response to the oil spill has largely focused on stopping oil from reaching shore, the offshore ecosystem, from plankton to dolphins, will suffer devastating impacts. Endangered sperm whales and dolphins have been spotted passing through the giant slick — which, on May 7, hit critical habitat for the federally protected piping plover on the Chandeleur Islands. Oiled gannets and brown pelicans were the first victims discovered by response teams, and some recovered birds were released on May 10. On May 22, reporters observed heavy oil coating a pelican colony near North Breton Island off the Louisiana coast. The goo permeated mangroves and had soaked birds and their eggs. By June 7, heavy oil had soaked the Queen Bess Island pelican rookery, a nesting site that has been essential to the recovery of brown pelican population. Experts worry that the spill could set back the Louisiana state bird’s recovery from near-extinction. The timing of the spill could not have been worse. Imperiled species including the Atlantic bluefin tuna, Kemp’s ridley sea turtles, loggerhead sea turtles, piping plovers, and sperm whales are flocking to the Gulf right now to spawn, migrate, and feed. For many of them, there’s nowhere else to go. As of June 11, federal wildlife officials reported that 351 sea turtles, 296of which were dead, and 39 marine mammals (mostly dolphins, almost all of which had already died) had been collected on or near the shore. Necropsies are being performed to determine whether their deaths were oil-related. Wildlife rescuers have collected 1,183 birds; tragically, 679 of these birds had already died. Many more birds have been oiled as heavy crude continues to seep into the coastal marshes.The state of Louisiana has identified 210 birds, reptiles, amphibians, and mammals likely to be affected by the spill — including about a dozen threatened and endangered species. Another 445 fish and invertebrate species will also be impacted. No estimate exists yet as to the number of corals and plants such as sea grass and wetland vegetation likely to be covered in oil. This area of the Gulf is home to abundant communities of deepwater corals, which may be smothered directly by sinking globs of oil or indirectly by water robbed of oxygen by oil and dispersants. One recently discovered species, the pancake batfish, could be snuffed out by the disaster. On land, the approaching hurricane season could bring storms that would push the oil into inland freshwater wetlands. Numerous species of seabirds, dolphins, and sea turtles have been spotted struggling through the oily muck. Dead seabirds, including gannets, herons, and brown pelicans; sea turtles, jellyfish; and fish are being found on the shores of Louisiana, Mississippi, and Alabama. Shoals that are favored by spawning blue crabs, a vital food source for Kemp’s ridley sea turtles and a staple of the regional economy, are awash in oil. On May 15, Louisiana closed shrimping grounds in state waters after fishermen reported that their catches were contaminated with oil. On May 25, the federal government declared a fishery disaster in Louisiana, Mississippi, and Alabama due to the oil spill. On May 28, the federal government expanded the Gulf fishery closure to include a large area of oil-sheen patches crossing the eastern edge of the current boundary, as well as an area currently outside the southern boundary that a small portion of the sheen is moving toward. As of June 8, the closed area covers 78,264 square miles — nearly one third of Gulf waters. A pod of endangered sperm whales that resides in this area of the Gulf is believed to be present and feeding on squid in deep water. The whales’ food may well be contaminated with oil and dispersants. While no one knows how profoundly this tainted food may affect the population, scientists say that the death of just three sperm whales in one year could deal a harsh blow to the species’ chances of survival. On May 24, the Center petitioned the federal government to protect bluefin tuna under the Endangered Species Act, pointing out that the few adult tuna that make it past the gauntlet of longlines back to their Gulf spawning grounds are now threatened by oil and toxic dispersants. Smalltooth sawfish, another critically endangered species, also face grave threats should oil continue to move into their coastal habitats. Read more about threatened species and see a map of the spill and nearby critical habitat.WHO IS RESPONSIBLE? 1. The Bush administration. The oil-drilling lease was sold to BP by the George W. Bush administration in 2007 under its 2007-2012 Five-Year Offshore Oil Drilling Plan. 2. The Obama administration. The actual exploratory drilling was approved by the Obama administration on April 6, 2009. Within days of the 2009 approval, the Center for Biological Diversity and its allies won a court order vacating the Bush Five-Year Offshore Drilling Plan. Rather than use the court order as a timeout on new offshore oil drilling to develop a new plan, Interior Secretary Ken Salazar filed a special motion with the court to exempt approved oil drilling in the Gulf of Mexico. He specifically identified BP’s operation as one that should be released from the vacature. In July 2009, the court agreed to Salazar’s request, releasing all approved offshore oil drilling — including the BP operation — from the vacature. 3. BP. BP has the worst environmental and safety record of any oil company operating in America. Even after the 2005 Texas City Refinery blast that killed 15 people, BP has continued to rack up safety violations. Despite the dangerous nature of all offshore oil drilling and BP’s own egregious safety record, BP’s exploration plan downplayed possibility of a spill, repeatedly asserting that it was unlikely or virtually impossible. Amazingly, Secretary Salazar’s Minerals and Management Service approved BP’s exploration plan without any consideration of the environmental consequences of an oil spill. 4. The oil industry and its political backers. The Gulf crisis shows that the glib safety claims of the oil industry cannot be trusted. There’s no way guarantee that a massive oil rupture will not occur. And if one does occur, there’s no way to contain it quickly and fully enough to avert unacceptable environmental damage. Ultimately, it’s the inherently dangerous nature of offshore oil drilling that led to this disaster. That’s why the Center is calling on the Obama administration to 1) revoke its 2010 decision to open up Alaska, the eastern Gulf of Mexico, and the Atlantic Coast to offshore oil drilling, 2) revoke all leases to drill off Alaska, including those held by Shell Oil, 3) not permit any new offshore drilling anywhere, and 3) transition the nation away from fossil fuel so the pressure to continue offshore oil drilling dissipates. WHAT IF A SPILL OCCURS IN THE ARCTIC? The Gulf of Mexico has by far the largest, best-equipped, most experienced oil spill-containment system in the nation. It has hundreds of experienced volunteer fishing boats at its disposal. The water is warm year round and relatively calm except in hurricane season. Wildlife rehab and cleanup crews have access to a road system in close proximity to much of the shoreline. Yet with all these advantages, the government and the oil industry are unable to contain the spill. Imagine what would happen if a similar spill occurred in the Arctic — 140 miles from land. In subzero temperatures. With miles of sea ice to hack through, ship-killing icebergs in all directions, and darkness for 20 hours a day in the winter. It would be a disaster many magnitudes worse than what we’re suffering in the Gulf of Mexico. There’s no way to clean up a massive oil spill in the broken-ice conditions that prevail in these Arctic areas for much of the year. In fact, the ice-free drilling season is so short in the Arctic — July to early October — that leaking oil from a similar accident there could continue to gush for an entire winter while efforts to drill a relief well were necessarily postponed. In a huge victory for the Arctic, on May 27 President Obama announced he wouldn’t allow Shell Oil to conduct exploration drilling in Alaska’s Beaufort and Chukchi seas this summer — but we don’t know what will happen next year. In fact, Obama has proposed to open up both the Chukchi and Beaufort seas to additional offshore oil drilling in coming years. It’s imperative that drilling never goes forward to prevent an Arctic oil-spill catastrophe that could be even worse than the Gulf disaster, threatening the polar bear, Pacific walrus; ringed, spotted, bearded, and ribbon seals; cetaceans like the North Pacific right whale, thebowhead whale, and the Cook Inlet beluga; migratory birds; and many other species.ARE OIL SPILLS INEVITABLE? Yes — as long as offshore oil drilling exists. We can and should improve spill prevention technology, but no technology will ever be 100-percent effective. The oil industry, Department of the Interior, and oil-state politicians told us for years that oil drilling in the Gulf of Mexico was completely safe. BP refused to even consider the effects of a catastrophic leak in its drilling plan because it said the likelihood was too remote to imagine. The Department of the Interior agreed, approving the plan without even conducting an environmental review. They were all wrong. If we drill for oil offshore, we will suffer oil leaks. Many will be small, some big, and occasionally, one will be catastrophically large, like the one in the Gulf. HOW OFTEN DO OIL SPILLS OCCUR? Oil spills happen every single year. Year in, year out. Large spills happen every few years, from the 1969 offshore oil-platform catastrophe that dumped 3 million gallons of oil into the Santa Barbara Channel to the April 6, 2010 spilling of 18,000 gallons of oil into the Gulf of Mexico’s Delta National Wildlife Refuge — from a ruptured BP pipeline — to the current cataclysmic spill. Indeed, the U.S. Minerals Management Service cavalierly assumes that nine large oil spills and 600 small oil spills will occur in the Gulf of Mexico as a result of its 2007-2012 program. Click here for a timeline of major spills in the Gulf and other U.S. waters.WHAT CAN I DO? It’s easy to feel helpless as 1 million gallons of oil spew into the Gulf of Mexico per day with no end in sight. At the same time, this is our opportunity to stop offshore oil drilling once and for all. You can get involved to save the Gulf, the Arctic, the global climate, and the oceans and all their inhabitants — learn how to take action now and get up-to-the-minute info on the Center’s Twitter page. |
Deepwater Horizon explosion photo courtesy U.S. Coast Guard
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