Synopsis: The blowout of BP's Macondo well in the Gulf of Mexico on April 20, 2010, provided the first major test of the national oil spill containment and response apparatus put in place by the Oil Pollution Act of 1990. News media coverage of the blowout displayed a lack of awareness of the Act or the mechanisms it had put in place to respond to major oil spills. Many questions raised by the media are answered or explained by the statute and its regulations. This article discusses the Act's provisions as they relate to the Macondo blowout, its effectiveness in dealing with the spill, and the prospects for amending the law.
I. THE MACONDO BLOWOUT
The blowout of British Petroleum?s (BP) Macondo well in the deep water of the Gulf of Mexico was the largest accidental oil spill in the world, greater than both the Ixtoc blowout off the coast of Mexico and the Exxon Valdez spill in Alaska.1 Eleven crew members of the Deepwater Horizon drilling rig were killed, others were injured, the livelihoods of thousands of fishermen were impacted, countless marine animals and organisms were destroyed, and marshes and beaches in Louisiana, Mississippi, Alabama, and Florida were fouled. The blowout dominated news coverage from April 20, 2010, until the blowout was finally capped on July 15, 2010. Hundreds of lawsuits have been filed.2 There have been hearings before a joint investigatory panel of the Coast Guard and the Department of the Interior,3 an investigation by a commission appointed by President Obama,4 and extensive Congressional hearings.5
In the aftermath of the spill, resource damage assessment has begun, but will take time to complete. Some 185,000,000 gallons (4.4 million barrels) of oil were discharged,6 and, while clean-up efforts and natural processes appear to have removed much of the oil from the water surface, the effects on the Gulf of Mexico may last for decades. Media attention, once intense, is now focused elsewhere.7 The intensive media coverage raised many questions that were left unanswered before the media moved on to other issues. Among these are questions regarding who was in charge, delayed emergency response efforts, the laxity of federal oversight, the culpability of the companies involved,8 the impact of the oil on the ecosystem, the use of dispersants, and the ability of the environment to recover. Resolving the larger questions concerning resource damage will take years and involve disciplines outside the law. It is not the purpose of this article to resolve these issues or assess blame for the spill. Rather, the purpose of this article is more modest and limited: to address those questions that relate to the adequacy and effectiveness of the existing legal regime for responding to offshore oil spills.
II. THE OIL POLLUTION ACT OF 1990
The current regulatory framework for oil spill response to a large degree reflects reactions to earlier oil spill disasters. The Exxon Valdez spill in March of 1989 led to the enactment of the Oil Pollution Act of 1990 (OPA 90 or the Act).9 OPA 90 amended section 311 of the Clean Water Act, 33 U.S.C. §1321, which was enacted after the 1969 Santa Barbara blowout. The Port and Tanker Safety Act of 1978, which also amended section 311, was a reaction to the Argo Merchant tanker spill off Nantucket in 1976. OPA 90 was the capstone of a fifteen year legislative effort to "consolidate and rationalize the oil spill response mechanisms under various federal laws" that was pushed to completion in reaction to Exxon Valdez.10 OPA 90 provides a comprehensive legal framework that establishes federal management and control of oil spills, and federal control of containment, removal, recovery and clean-up efforts. It holds each "responsible party" liable for the costs of containment, clean-up, and damages sustained as a result of the spill. It creates a single, unified fund called the Oil Spill Liability Trust Fund to pay clean-up and removal costs of up to $1 billion, and it creates stronger enforcement authorities, penalties, spill prevention countermeasures, and response mechanisms. …