Legal Remedies for Deep Marine Oil Spills and Long-Term Ecological Resilience: A Match Made in Hell

Article excerpt

ABSTRACT

The Deepwater Horizon oil spill that lasted from April to September 2010 was not only the worst oil spill disaster in United States history, but also the first to occur at great depth. Drilling at great depth multiplies the risks and complications of offshore oil extraction. It also, as this Article explores, makes natural resource damages a decisively inadequate remedy for the injuries done to the Gulf of Mexico's (the "Gulf") ecosystems, especially the poorly understood but highly productive ecosystems that exist almost a mile below the surface. This Article argues that our current natural resource damages regimes for oil spills depend too heavily on an assumption that ocean areas like the Gulf are stably resilient, able to absorb and recover from an incessant series of environmental insults ranging from widespread loss of wetlands to nutrient pollution and a dead zone to overfishing to continual releases of oil. By acknowledging that disasters like the Deepwater Horizon oil spill could push ecosystems across regimeshifting thresholds into new states, resilience thinking better captures the inherent and unavoidable risks that exploitative activities in the Gulf actually pose to the socio-ecological systems that depend on its continued productive functioning. As a result, resilience thinking can also suggest new and more comprehensive ways of thinking about oil spill liability that might bring about the reformations in offshore oil drilling regulation that many commentators seek.

I. INTRODUCTION

The Deepwater Horizon oil rig was huge, weighing in at 33,000 tons and supporting four decks of working space and an oil derrick that rose another twenty stories above the platform.1 It cost $350 million to build2 and had arrived at the Macondo lease site on January 31, 2010, to drill the Macondo well for British Petroleum ("BP").3

Less than three months later, "BP and the Macondo well were almost six weeks behind schedule and more than $58 million over budget."4 The commercial pressures BP faced as a result of these cost overruns likely led it to take shortcuts, and these shortcuts probably help to explain why, on the night of April 20, 2010, the Macondo well blew out. The well's explosion engulfed the Deepwater Horizon in flames, requiring abandonment of the rig,5 and killed eleven crew members.6 The rig itself sank into the depths of the Gulf of Mexico (the "GuIf) two days later, on April 22- Earth Day.7

In the aftermath of this human tragedy, concerns about the environment began to grow. Immediate attempts to trigger the rig's "blowout preventer" failed,8 and "[b]y mid-afternoon on April 23, [remotely operated] vehicles discovered that oil was leaking from the end of the riser, where it had broken off from the Deepwater Horizon when the rig sank."9 A second leak was discovered the next day, leading to the Unified Command's announcement "that the riser was leaking oil at a rate of 1000 barrels per day."10 The background of this estimate remains unclear, although the estimate itself appears to have come from BP.11 A few days later, a National Oceanic and Atmospheric Administration ("NOAA") scientist estimated that the well was releasing about 5000 barrels of oil a day, although, given the uncertainties involved in the estimation because of the depth of the leak, he also noted that the flow could have been as much as 10,000 barrels per day.12

Immediate environmental consequences included surface oil slicks, fishery closures,13 contaminated beaches,14 oiled wildlife,15 and increasing reports of health problems among spill workers.16 Oil spill responders sprayed dispersants on the surface oil for twelve weeks,17 releasing far more of these toxic chemicals into the environment than had been used (even then, controversially) after the 1989 Exxon Valdez oil spill in Prince William Sound, Alaska.18 In response to that 1989 oil spill, responders sprayed a total of about 5500 gallons of dispersant, compared to 141,358 gallons sprayed on the Gulf spill during the week of April 27 to May 3, and another 168,988 gallons the following week. …