Links, Loss and the Laws: Biggest US Oil Spill

Well today there are a a variety of possible descriptions and some of them conflict as to the state of the dynamic kill of the gusher a mile below the surface of the Gulf of Mexico. Is the spill growing by crude oil and natural gas and if so by how much? Or is there only mud and seawater coming out now. Most television channels are showing only the top of the blow-out preventer and no longer showing the issuance from the riser. That makes it even harder to tell what is going on because the top of the preventer could be spewing mud only and it would mean much less than if the broken riser were also only spewing out mud. I mud is coming out of all leaks without oil then in fact as some have said they are cutting off the flow of oil while they pump.  Of course spewing drilling fluids is not perfect either but it would be a sign of progress. Nonetheless, this is a good time to turn to issues that are not so sensitive to the progress of events minute by minute.

After the Exxon Valdez disaster the laws were changed under the Oil Pollution Act. This Act had many good effects such as forcing all major players to file an emergency response plan and setting up emergency response under the Coast Guard. MAYBE: It had the very bad effect of having the responsible party do all the clean-up, then pay a 75 million dollar deductible and then tapping into a grossly underfunded indemnity or rainy day fund to compensate those injured. A sum of 75 million dollars would compensate for a minor interruption of the Louisiana Gulf Coast for about a minute. The remaining two billion or so in the current indemnity fund would constitute lost business insurance for less than a week in this region in a worst case scenario and would leave no money thereafter for other injuries than lost business. Creating a plan like this removes all incentives to have a responsible coastal policy at least on its face. To see what the laws are as described by the Environmental Protection Agency see the link below.    

http://www.epa.gov/lawsregs/laws/opa.html

The EPA and other parts of the government have built up some response capacities based on these laws. It is arguable that the regime under the Oil Pollution Act is often far better than it was under most statutory regimes likely to apply before the laws changed.  To see some of this response capacity as it is relevant here see the next link.

http://www.epa.gov/oilspill/index.htm 

On the other hand the insurance capacity is very low relative to real risk in this area. It is also true that such a disaster as this must be best mitigated before hand. This is best done by policies which may not be considered because of the current scheme. See my own ideas in the link below.

https://franksummers3ba.wordpress.com/2009/10/02/ideal-wetlands-policy-on-the-louisiana-coast/

The federal government of the United States of America is also very much engaged in regulating the industry. There is very little that the public has followed about the Mineral Management Service but you can look at their link below.

http://www.mms.gov/

The State of Louisiana has to deal with the terrible results and fight against the worst consequences of the Deepwater Horizon disaster. In order to fully know what there concerns are there are several agencies to check with. I am not going to repeat government links I gave before. I would encourage you to look at what Wildlife and Fisheries has to say in the next link.

http://www.wlf.louisiana.gov/

As you consider the environment and the culture one would also remember that Louisiana is a civil law jurisdiction governed by the Louisiana Civil Code and has a very different system of laws than the 49 Common Law states and the US Government in this regard. To begin to understand what this means see the next link.

http://legal-dictionary.thefreedictionary.com/civil+law

To keep track of how Louisiana’s government  tracks environmental quality and see what issues have been addressed here see the next link. The Department of Environmental Quality has a close relationship with the federal EPA. 

http://www.deq.louisiana.gov/portal

To see the central electronic focus of the Louisiana government for this crisis see the next link.  There is little else that can be said of the many agencies and parishes responding  in this short blog post.

http://www.emergency.louisiana.gov/

Ironically, one of the State’s law schools had just held an academic conference on water quality and environmental law when this huge disaster occurred.  The environmental law issues have been important to Tulane Law School for a long time actually. See their link on the recent conference below.

http://www.law.tulane.edu/tlsOrgs/tels/telc/index.aspx

Perhaps some of my readership have seen James Carville and his wife addressing the President, the media and anyone who would listen about this crisis in the last few days. Well Mr. Carville will be addressing Louisiana State University’s Law School Graduating Class at commencement today I think. 

http://www.law.lsu.edu/index.cfm?geaux=newsandpublications.newsstories&pid=4097261D-1372-69E5-F7FF16FFC9B54892&bid=EF114F50-1372-69E5-F7A58C48228BF9F2

The President, Barack Hussein Obama, has been in Louisiana today addressing this crisis. I would urge all of you to take him up on his invitation to visit the White House online in regards to this crisis. Find two links for that purpose below.  

http://www.whitehouse.gov/

http://www.whitehouse.gov/deepwater-bp-oil-spill

One issue that has not been addressed is that there may be limits in what our curent governement can do beyond the Liability caps. Ultimately, things like frezing production or leases are a good way that Obama (whom I dislike and oppose) has found to show that he can overcome limits in his basic legal power over guilty parties and the industry. It is a poor substitute for good policy but it is better than weakness and surrender. I applaud the subtle and not linked use of this ploy. However, BP must largely be motivated by reputation, by pressure through the UK exerted from Louisiana and the Gulf Coast and in the real world by the possibility of extr-legal vengeance. The US constitution does not allow someone’s rights to be changed by retroactive laws. This may happen in practice but it is bad for our law. I applaud anyone who finds a color of right for doing the right but it is not simple. The state Louisiana finds herself in as regards law is another strong argument for constitutional change. The laws on the books MAY have done great violence to the rights of people here for no good reason. But there are some not all bad reasons. That is a difference to be discussed in a latter post. Governor Jindalhas thrown himself into this fray admirably. He and I are very different people and I applaud his effort to find success within this system We shall see what happens next.

I personally am in a disillusioned funk. I will try to post more original analysis when and if I feel a bit more cheery and focused. Until then if you are doing something to help — good luck and God bless your efforts.