Do as I Say and Not as I Do: The United States' Immunity in Oil Spill Response Actions

By Higgins, Mark M. | Suffolk University Law Review, Winter 2011 | Go to article overview

Do as I Say and Not as I Do: The United States' Immunity in Oil Spill Response Actions


Higgins, Mark M., Suffolk University Law Review


"I really don't know why it is that all of us are so committed to the sea, except I think it is because in addition to the fact that the sea changes and the light changes, and ships change, it is because we all came from the sea. And it is an interesting biological fact that all of us have, in our veins the exact same percentage of salt in our blood that exists in the ocean, and, therefore, we have salt in our blood, in our sweat, in our tears. We are tied to the ocean. And when we go back to the sea, whether it is to sail or to watch it we are going back from whence we came." (1)

I. INTRODUCTION

Residents of the states bordering the Gulf of Mexico have more in common with their part of the sea than only salt content. (2) Affecting the well-being of Gulf residents, the Deepwater Horizon oil spill was the largest in United States history, and efforts to respond to the disaster were similar in scale. (3) Neither the United States government nor the responsible party was prepared to mitigate the risks present in deep-sea oil exploration. (4) The lack of preparation and size of the spill forced responders to consider and implement untested strategies. (5)

Private actors must consider the potential liability of their actions. (6) Government, shielded by sovereign immunity, does not need to utilize the same calculations. (7) This Note will suggest that government should waive its sovereign immunity during oil spill response actions in light of the controversies surrounding the Macondo Well blowout. (8) This Note argues that united States government response efforts were detrimental to the national welfare and, although a similarly situated private party would be liable for the citizens' injuries, the United States will not be held accountable. (9)

This Note will begin by outlining the initial events of the blowout. (10) Then it will present the government's contingency plan in case of an oil spill. (11) This Note will then compare the government's plan to the actual events that occurred. (12) Next, this Note will examine the decision to utilize dispersants to combat the oil spill. (13) The Note will continue to the successful containment of the spill. (14)

Next, this Note will outline the government's lawsuit to recover costs against British Petroleum and other parties. (15) An examination of the workings of the oil Pollution Act and the doctrine of sovereign immunity will follow to highlight possible defense strategies of the defendants. (16) Additionally, this Note will outline the role of citizen suits in environmental regulation. (17) Finally, this Note will analyze the lack of remedies available to citizens when the government is the party responsible for pollution in oil spill responses, focusing on the government's lack of accountability following the Deepwater Horizon oil spill. (18) This Note argues that the government should waive its sovereign immunity in oil spill response actions. (19)

II. HISTORY

A. The Well Blows Out

On April 20, 2010, the Modular Offshore Drilling Unit Deepwater Horizon caught fire as the result of a blowout. (20) The rig exploded before sinking, killing eleven men. (21) The United States Coast Guard (USCG) immediately responded and began what would become a 152-day fight to contain and close a "spill of national significance" in the Gulf of Mexico. (22)

British Petroleum (BP) owned Deepwater Horizon and became the focus of the public's anger shortly after the spill began. (23) The United States Government named BP a "responsible party" in the disaster. (24) The consensus among media reports was that BP would face both heavy civil penalties and possible criminal charges. (25) Relying on the Clean Water Act of 1973 (CWA) and the Oil Pollution Act of 1990 (OPA), the government filed a complaint on December 15, 2010 seeking compensation from BP as a "responsible party" for the cleanup. (26)

B. The National Contingency Plan

The National Oil and Hazardous Substances Pollution Contingency Plan (NCP) is a series of regulations outlining government responses to hazardous substance discharges. …

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