Harm to the Environment: The Right to Compensation and the Assessment of Damages

By Peter Wetterstein | Go to book overview

9
Environmental Damages: The Emerging Law in the United States

THOMAS J. SCHOENBAUM


1. INTRODUCTION

In the United States three federal laws currently provide for the recovery of natural resources damages: the Federal Water Pollution Control Act (FWPCA) or Clean Water Act (CWA), the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund), and the Oil Pollution Act (OPA). A claim for natural resource damages may arise whenever a release of oil or a hazardous substance has injured a natural resource. Claims for natural resource damages may be brought by designated 'trustees', various federal agencies, state governments, and Indian tribes. From the international perspective, the most important regime for recovery of natural resource damages is OPA, which is the American counterpart of the international treaty system for oil pollution damages administered by the International Maritime Organization ( IMO) and the International Oil Pollution Compensation Fund ( IOPC Fund).

This Chapter will discuss the salient features of the emerging oil pollution compensation regime under OPA ( 1990), which was promulgated in final form in January 1996. I will offer some concluding remarks on how OPA might best be harmonized with the international system.


2.THE OIL POLLUTION ACT OF 1990

The centrepiece of federal ship pollution statutes is now the Oil Pollution Act of 1990. 1 This was passed after almost fifteen years of consideration of various approaches to oil-spill liability and compensation, in the wake of the Exxon Valdez tanker accident off Alaska in 1989. OPA increases substantially both the

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1
33 USC §§ 2701-2761. OPA applies to oil spills in the navigable waters of the United States as well as in the exclusive economic zone: 33 USC § 2702(a). See generally, A. J. Rodriguez and P. A. C. Jaffe, "The Oil Pollution Act of 1990" ( 1990) 15 Tulane Maritime Law Journal1-35; T. J. Wagner , "The Oil Pollution Act of 1990: An Analysis" ( 1990) 21 Journal of Maritime Law and Commerce No. 4, 569-95.

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