By Ben Weber, National Wildlife Federation. This article was originally posted on the Vanishing Paradise blog.
After years of habitat loss and abuse, the story of the Mississippi River Delta is starting to look a bit different. Following the 2010 Gulf oil spill, a monumental piece of legislation called the RESTORE Act is providing a rare opportunity to address decades of mismanagement and habitat degradation.
Among other things, the RESTORE Act created the Gulf Coast Ecosystem Restoration Council, which is a multi-state, multi-agency group that has been tasked with developing a comprehensive ecosystem restoration plan for the Gulf. The Council is currently developing the plan, with a draft due for public comment this spring.
The Vanishing Paradise team is working to make sure the Council remembers the national hunting and fishing community was at the forefront of the efforts to pass the RESTORE Act, and we intend to see this through.
Our message to the Council is simple. We believe habitat restoration can drive and support economic recovery. The people, businesses, communities and economy of this region are undeniably reliant upon a healthy and productive Gulf, and ecosystem restoration should be the top priority in drafting and finalizing the Council’s comprehensive restoration plan.
This message will be delivered to the Restoration Council in the form of a letter that carries the signatures of roughly 350 hunting and angling businesses and organizations that believe investments in long-term ecosystem restoration will drive economic prosperity in the Gulf Coast region.
As the Council considers how best to “restore and protect the natural resources, ecosystems, fisheries, marine and wildlife habitats, beaches and coastal wetlands of the Gulf Coast region,” we believe that they should engage the hunting and fishing community to ensure that their restoration plan reflects the interests and values of our country’s hunters and anglers.
Following up on this letter, we’ll be meeting with the Restoration Council early next month. We will deliver the message that sportsmen and women are paying attention, but more importantly we will also discuss a list of recommendations on restoration project selection, implementation and monitoring.
Louisiana’s coastal wetlands are some of the most important habitats American hunters and anglers will ever know. The sad truth is that this American treasure is disappearing before our eyes.
The future of the Mississippi River Delta has long been challenged by a severed connection between the river and its wetlands. Hurricanes that destroy our marshes made us famous. More recently the Gulf of Mexico was thrown another curveball, the 2010 oil spill.
The unprecedented release of 4.9 million barrels of oil into the Gulf has caused near-term impacts to the fishery, coastal habitat and thousands of people’s livelihoods. It may cause significant long-term damage to the Gulf, affecting sportsmen and women throughout the country that rely on a healthy Gulf coast that serves as wintering grounds for nearly 10 million waterfowl and one of the absolute best fisheries in our country.
We all take something different from the field. Whether it’s an exciting adventure chasing the trophy of a lifetime, a quiet day at your favorite fishing hole or some good old-fashioned quality time with your grandkids.
Hunters and anglers rarely agree on everything, but there is a fundamental connection between people who hunt and fish. No matter what our goals or interests are, we all depend on quality habitat to enjoy our passion. It sounds simple, and it is. At the end of the day, despite all of our opinions, preferences and predispositions, the key to quality hunting and fishing opportunities all comes down to productive habitat.
That’s why sportsmen and women must be involved in the development of the Council’s restoration plan. Investments in projects that restore healthy and productive habitat mean a future full of quality hunting and angling opportunities. If the wild spaces of the Gulf region are protected and restored, sportsmen and women will have played an essential role in saving one of America’s last best places.
A legacy to be proud of indeed.
By Whit Remer, Policy Analyst, Environmental Defense Fund
Though Phase I of the BP trial may be complete, both parties have a mountain of follow-up work, analysis, and then preparation to do for Phase II, which starts in September. Phase I of the trial covered the events leading up to the spill while Phase II will look at the explosion and response. When both phases are complete and after weighing all the evidence, Judge Carl Barbier will apportion liability between BP and its subcontractors, Halliburton and Transocean. Days after the conclusion of Phase I, Judge Barbier ordered the parties to submit post-trial briefs to help clarify some difficult questions in the case. The order, issued on April 24, asked the parties to address seven important questions before the court.
In this two-part blog, we will provide some commentary on those questions, which could have profound implications on BP’s liability. Of particular interest is whether the company will be found grossly negligent, which could quadruple the amount of Clean Water Act fines assessed in the case and substantially increase the amount of money subject to the RESTORE Act.
In this post, we will walk through the first three questions. Check back next week for our remaining commentary.
Question 1: What is the standard for finding “gross negligence” or “willful misconduct” under the Clean Water Act and Oil Pollution Act?
Our commentary: In tort law, degrees of negligence are associated with how careless a person or company was when it committed the wrongdoing. On one side of the spectrum, there is ordinary negligence. On the other side is gross negligence or willful misconduct. The more careless the mistake is, the higher the degree of negligence. In BP’s case, that could mean the difference between $4.5 and $17.6 billion.
Judge Barbier is interested in the standards of negligence under two important environmental laws, the Clean Water Act (CWA) and Oil Pollution Act (OPA). The laws have vastly different consequences depending on the degree of negligence (to the tune of tens of billions of dollars), hence Judge Barbier’s request for clarity. There is considerable room for debate, both in fact and in law on this issue, so each side will need to present crystal clear facts and apply helpful case law to persuade the court of their view.
Question 2: What is the standard for a finding of punitive damages under general maritime law? Is this a different standard than under the Clean Water Act or Oil Pollution Act, and if so, how?
Our commentary: There are two things to consider in this question: punitive damages and maritime law. Under the Clean Water Act, BP and other responsible parties will have to pay civil fines for breaking the law and polluting waters of the United States. The fines are based on the level of negligence and amount of oil spilled. Punitive damages are different in that they are imposed to deter conduct by others in similar situations and often give a jury or judge much more leeway in imposing.
In the 1989 Exxon Valdez spill, a jury imposed $5 billion in punitive damages against the company (this was on top of $7 billion in fines, penalties and settlements; $2.5 billion in cleanup costs; and $500 million in outstanding payments). The punitive damages were eventually reduced to $507.5 million after appealing the judgment all the way to the Supreme Court, but not without incurring significant legal costs and shaking up the company. BP is understandably wondering, “Could the judge find both gross negligence and impose punitive damages?”
Also relevant to this question is the concept of “maritime law.” Maritime law governs legal disputes that occur offshore and varies, often significantly in substance and spirit, from common law actions on land. Early on in the BP case, Transocean attempted to limit their financial liability to $25 million under an 1851 maritime law. That attempt was apparently unsuccessful considering the company agreed to a $1billion settlement with the US Department of Justice in January.
Question 3: In order to find that a party acted with gross negligence is it necessary to find that there be at least one single act or omission that equates to gross negligence, or can such a finding be based upon an accumulation or a series of negligence acts or omissions?
Our commentary: There’s a lot packed into this question, but the case law on factors that determine gross negligence is thin, prompting a difficult decision for the judge. It would seem that the clear-cut way for the government to prevail on this issue would be to find one, big mistake that amounts to gross negligence. However, reviewing briefs the government filed and looking back at how they presented their case at trial, it appears they are using the “bunch of mistakes add up to one huge grossly negligent mistake” approach.
Check back next week for our commentary on the remaining questions.
30 years of time-lapse satellite images show coastal Louisiana wasting away
By Bob Marshall, The Lens (New Orleans). May 21, 2013.
"The new Google app arrived in my life to the kind of reception reserved for a doctor carrying the results of a biopsy. Did I really want to know…" (
Live chat Tuesday: Talk to Bob Marshall about challenges facing coastal Louisiana
By Steve Myers, The Lens (New Orleans). May 20, 2013.
"Last week, WWNO-FM started to air a series on the crisis facing the Louisiana coast, reported by The Lens’ Bob Marshall and produced by WWNO’s Fred Kasten. The stories…"
The Louisiana Coast: Last Call — River Diversions
By Bob Marshall, WWNO (New Orleans). May 20, 2013.
"It’s almost impossible to find anyone in coastal Louisiana opposed to the idea of “coastal restoration.” Storms like Katrina, Gustav and Isaac have shown everyone the value of the marshes and swamps that once…"