Archive for Clean Water Act


Conservation Organizations Respond to Senator Mary Landrieu’s Confirmation as Chairwoman of Energy and Natural Resources Committee

February 11, 2014 | Posted by Elizabeth Skree in BP Oil Disaster, Clean Water Act, Media Resources, RESTORE Act, Senator Mary Landrieu

FOR IMMEDIATE RELEASE

CONTACTS: Elizabeth Skree, Environmental Defense Fund, 202.553.2543, eskree@edf.org
Emily Guidry Schatzel, National Wildlife Federation, 225.253.9781, schatzele@nwf.org
Erin Greeson, National Audubon Society, 503.913.8978, egreeson@audubon.org

Conservation Organizations Respond to Senator Mary Landrieu’s Confirmation as Chairwoman of Energy and Natural Resources Committee

Landrieu a champion for Louisiana coastal restoration, Gulf oil spill recovery

(Washington, DC—February 11, 2014) Today, the U.S. Senate Democratic Caucus confirmed Senator Mary Landrieu as chairwoman of the U.S. Senate Committee on Energy and Natural Resources. National and local conservation organizations committed to Mississippi River Delta restoration – Environmental Defense FundNational Wildlife FederationNational Audubon SocietyLake Pontchartrain Basin Foundation and the Coalition to Restore Coastal Louisiana – issued the following statement:

“We are pleased to welcome Senator Mary Landrieu as the new chairwoman of the Senate Energy and Natural Resources Committee. Senator Landrieu has proven herself to be a champion for restoration of the Mississippi River Delta, as well as an effective legislator, notably demonstrated by her leadership in crafting and passing the bipartisan RESTORE Act which benefits the entire Gulf Coast. The law ensures that Clean Water Act fines from the 2010 BP Gulf oil disaster go back to the Gulf Coast states for restoration. This historic legislation would not have become law without Senator Landrieu’s tireless leadership and her ability to work across the aisle. In her new capacity as committee chairwoman, we look forward to a continued partnership to advance both funding and implementation of Mississippi River Delta restoration.”

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The Restore the Mississippi River Delta coalition is working to protect people, wildlife and jobs by reconnecting the river with its wetlands. As our region faces the crisis of threatening land loss, we offer science-based solutions through a comprehensive approach to restoration. Comprised of conservation, policy, science and outreach experts from Environmental Defense Fund, National Audubon Society, National Wildlife Federation, Coalition to Restore Coastal Louisiana and Lake Pontchartrain Basin Foundation, we are located in Houma, New Orleans and Baton Rouge, Louisiana; Washington, D.C.; and around the United States. See more at www.mississippiriverdelta.org.

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Phase II of BP oil spill trial expected to conclude today

October 18, 2013 | Posted by Delta Dispatches in BP Oil Disaster, Clean Water Act, RESTORE Act

By Whit Remer, Policy Analyst, Environmental Defense Fund

Start of phase two of trial. Sept. 30, 2013.

Expert testimony on how much oil flowed into the Gulf of Mexico during the 2010 oil disaster is expected to wrap up today in a New Orleans federal courtroom. This testimony is part of the Quantification Segment of the second phase of the BP trial, which began on September 30 and is ending a full week earlier than expected. Phase two is focused on efforts to stop the flow of oil from the well (Source Control Segment) and how much oil spewed into the Gulf of Mexico during the 87-day disaster (Quantification Segment). Phase one of trial, which lasted two months and ended in April, covered the events that caused the Deepwater Horizon rig explosion. Despite the nearly concurrent federal government shutdown, trial continued relatively unfazed over the past three weeks.

Phase two kicked off with the Source Control Segment, where presiding Judge Carl Barbier heard testimony on the multiple engineering feats BP attempted to seal the uncontrolled Macondo well. The Quantification Segment pitted the U.S. Department of Justice against BP, each side offering conflicting expert testimony on the amount of oil that gushed from the well. The Quantification Segment is focused on a simple question with a not-so-simple answer: How much oil did BP spill into the Gulf of Mexico? Under the Clean Water Act, BP is subject to per-barrel fines based on how much oil was released into the Gulf. The government believes BP is liable for 4.2 million barrels, while BP contends they are responsible for no more than 2.45 million barrels. Each side is offering highly complex and technical scientific and engineering evidence related to how they estimated the total amount offered in court, and the judge will consider these testimonies when he determines how much BP will pay.

BP has maintained that the government exaggerated the amount of oil spilled during the disaster. The company argues that flow rates offered by the government were generated “over a single weekend” at the beginning of the spill. BP contends that the flow rate from the well was variable over time, and that it actually decreased as the spill progressed. Attorneys for the government attacked BP’s witnesses’ findings and even suggested potential bias, citing a $100 million donation made by BP to the Imperial College London which employs two of BP’s trial witnesses.

While it is plausible that Judge Barbier will come down somewhere in the middle of the 2.45 to 4.2 million barrel range, the total amount of Clean Water Act fines could quadruple if BP is found grossly negligent. A ruling on negligence, which has not been issued, will likely be based on evidence from both phase one and phase two of trial. Judge Barbier has noted that he will schedule a third penalty phase to help him assess fines in the case, presumably sometime next year. Eighty percent of the penalty money assessed in this case under the Clean Water Act will be distributed to the Gulf Coast states for restoration through the RESTORE Act, the federal law passed last year.

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Science plays key role in determining amount of oil spilled during 2010 Gulf disaster

October 17, 2013 | Posted by Delta Dispatches in BP Oil Disaster, Clean Water Act, Science

By Alisha Renfro, Coastal Scientist, National Wildlife Federation 

A "vessel of opportunity" skims oil spilled after the Deepwater Horizon/BP well blowout in the Gulf of Mexico in April 2010. Photo: NOAA.

The unprecedented scale of the 2010 BP oil spill and the further complexity introduced by its deep water location pushed scientists involved in the response effort to apply both old and new research methods to estimate the rate of oil flow from the well and the total volume of oil spilled. Currently in New Orleans, phase II of the BP oil spill trial – which will focus on that very question of how much oil gushed from the well into the Gulf during the 86 days between the initial blowout and when the well was finally capped – is underway. Ultimately, this total volume of oil spilled will play a key role in determining the amount of Clean Water Act penalties BP will pay. The decisions made during this phase of trial will come down on the hard work and innovation of the scientific community’s response to a spill that happened under difficult conditions that didn't have easy solutions.

In an article in the December 2012 issue of Proceedings of the National Academy of Sciences, scientists involved in the response reviewed the different methods used to estimate the flow rate of crude oil from the well. The researchers concluded that the science supports flow rates that ranged from 50,000 to 70,000 barrels of oil per day, resulting in a total release of around 5 million barrels of oil from the well, with 4.2 million barrels making it into the Gulf of Mexico ecosystem due to recapturing efforts by BP.

In the days immediately following the April 20, 2010 well blowout, the flow rate of oil from the well was one of the most critical pieces of information needed to inform response efforts and prepare designs and procedures that could be used to try and cap the well. Measuring the rate of flow of oil was more complicated than it may seem as the material gushing from the well consisted of a combination of oil and natural gas. To meet this need, an official technical group was gathered which included experts from a variety of scientific disciplines that would work on estimating flow rate and the total volume of oil released.

Heavy band of oil seen during an overflight on May 12. Credit: NOAA.

Flow rate estimates were calculated from a variety of different methods, including oil collection at the sea surface, acoustic and video observations, sampling and analysis of the composition of the discharge material, infrared imaging from aircraft and from modeling the depletion of the reservoir after the well was capped. Some of these methods yielded what were considered more reliable estimates than others. However, quite remarkably, almost all of the methods reviewed in this article converged on flow rates that ranged from 50,000 to 70,000 barrels per day.

Based on the flow rate of oil and its variability with time, the science team involved estimated that approximately 5 million barrels of oil would have been discharged from the well over the 86 days it remained uncapped. Differences between flow rate measured at the well and flow rates calculated from what was observed at the ocean surface suggest that 2 million barrels of oil never made it to the ocean surface and remain in the deep sea. This suggests that the ongoing effects of the oil spill may not be known for years to come.

As phase II of trial continues this week, expert witnesses will testify on rate of oil flow from the Macondo well, using sound science to support their conclusions.

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Recap: Week Two of Phase II of BP Oil Spill Trial

October 10, 2013 | Posted by Delta Dispatches in BP Oil Disaster, Clean Water Act, RESTORE Act

By Whit Remer, Policy Analyst, Environmental Defense Fund

BP and the U.S. Department of Justice sparred in federal court this week over how much oil gushed into the Gulf of Mexico during the 87-day Gulf oil disaster during a part of the trial named the Quantification Segment. Last week, BP defended its multiple engineering attempts to stop the oil leak during the Source Control Segment. Both of these segments make up the second phase of trial, which was originally expected to last four weeks but may wrap up sooner. The first phase, which focused on the cause of the Deepwater Horizon rig explosion, concluded in April 2013 after nearly two months in the courtroom. A yet to be scheduled third phase will focus on penalties in the case, which could reach the tens of billions of dollars.

Macondo well blowout

This week during the Quantification Segment, presiding Judge Carl Barbier has been hearing expert testimony from each side on the amount of oil spilled. BP is contending that 3.1 million barrels were released, while the U.S. government believes the number is closer to 4.9 million barrels. Both sides have agreed not to fine BP for 810,000 barrels that the company collected during the spill. BP was able to sell around 65,000 barrels of that collected oil, fetching approximately $4.5 million, which was placed in a trust fund for wildlife rehabilitation.

Experts testifying in the case specialize in fields such as hydrology, petroleum engineering and thermodynamic modeling. Judge Barbier will weigh evidence offered by these experts on possible daily flow rates and the total amount of oil spilled. On Monday and Tuesday, experts for the U.S. testified about pressure levels in the geologic formation that contained the oil where the Macondo well was being drilled. Pressure in the rock formation gives scientists an idea about how much oil could be released each day. BP argued that calculating the flow of oil from the Macondo well was possibly slowed by obstructions resulting from the rig collapse like sheared metal components. The U.S. called Stewart Griffiths, a fluid dynamics expert, to rebut the argument by testifying that the metal would have likely eroded within hours or days of the blowout.

Another complicating factor in determining the amount of oil spilled is distinguishing between solid oil and gas. Video images of oil gushing from the wellhead and broken riser pipe were played around the world during the disaster (check out the video below for clips of the spill and a timeline of events). The gushing brown stream consisted of both solid oil and gas, known collectively as hydrocarbons. Under the Clean Water Act – the primary law controlling the Quantification Segment of trail – BP can only be fined for the release of solid oil, not gas.

To help determine how much of the release consisted of solid oil, the U.S. called Aaron Zick, an independent contractor who specializes in thermodynamic modeling of oil and gas formations, to the stand. Zick offered a complex formula to help distinguish solid oil from gas when analyzing potential flow rates at the well head. The formula had to be adapted for deep sea pressure readings because the extreme differences in temperature at the ocean floor. The hydrocarbon mixture is nearing boiling when it enters the freezing ocean. The extreme reactions make the analyses more difficult than those tested in shallow water.

Chemistry class aside, the Quantification Segment is important because BP will be fined under the Clean Water Act based on how much solid oil entered the Gulf of Mexico. Through the federal RESTORE Act, that fine money will be used for environmental and economic restoration activities along the Gulf Coast.

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A review of the RESTORE Council's Initial Comprehensive Plan

August 27, 2013 | Posted by Delta Dispatches in BP Oil Disaster, Clean Water Act, Gulf Coast Ecosystem Restoration Council, Reports, Restoration Projects, RESTORE Act

By Whit Remer and Elizabeth Weiner, Environmental Defense Fund

Last week, the Gulf Coast Ecosystem Restoration Council released the “Initial Comprehensive Plan: Restoring the Gulf Coast’s Ecosystem and Economy” for implementing parts of the RESTORE the Gulf Coast Act, which was enacted into law in 2012 in response to the 2010 Deepwater Horizon oil disaster. The Gulf Coast Ecosystem Restoration Council was created by the RESTORE Act and comprises officials from five Gulf Coast states and six federal agencies.

The RESTORE Act requires the Council to develop and maintain a comprehensive plan for restoring the Gulf Coast, and the release of the Initial Comprehensive Plan is a milestone in that process. Throughout the last year, the Council solicited input from the public on various components of the Initial Comprehensive Plan. The Plan ultimately included goals and objectives and reiterated the restoration priorities that were central in the RESTORE Act.

Tar balls of weathered oil wash ashore Bon Secour NWR June 4, 2010. Photo by Lillian Falco, USFWS Public domain photo.

The Mississippi River Delta Restoration Campaign provided vital input to the Council, emphasizing adherence to statutory language, use of the best-available science and the central role that the delta plays in comprehensive, Gulf-wide restoration. While the Plan sketches a blueprint for Gulf Coast restoration, the next steps toward developing a project and program list are critical to the Plan’s success. Louisiana’s fragile wetlands continue to disappear at an alarming rate. Sediment diversions, marsh creation and barrier island restoration are all methods being proposed to stem the loss of land and provide storm protection and habitat along the coast. We will continue to encourage the Council to use the best-available science to develop a project and program list, including these methods, and put restoration dollars to work as soon as possible.

In the Initial Comprehensive Plan, the Council provided several reasons for not including a project and program list. The Department of Treasury is required by the RESTORE Act to issue regulations to guide disbursement of funding to states and allocation of funding by the Council. These regulations are currently held up for review at the Office of Management and Budget. Once the regulations are approved, the Council will have more direction on how to spend and allocate restoration dollars.

However, the Council will need more funding in the Gulf Coast Ecosystem Restoration Trust Fund to carry out its priority projects and programs list, once complete. Thirty percent of the total funding in this Trust Fund will be used for these priority projects and programs. Transocean, one of the responsible parties, has already settled their Clean Water Act fines totaling $1 billion, which will result in $800 million in the Trust Fund by January 3, 2015. The Trust Fund will receive additional funding from Clean Water Act fines assessed against BP and other responsible parties resulting from the 2010 Deepwater Horizon oil spill. Fines against BP and other oil companies involved in spill have yet to be determined by a federal judge in New Orleans. The second phase of the trial to determine those fines is set for September 30, but the judgment could take months to issue, with the chance an appeal would follow.

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BP private claims appeal and ongoing litigation: What does it mean?

July 30, 2013 | Posted by Delta Dispatches in BP Oil Disaster, Clean Water Act, Natural Resource Damage Assessment (NRDA)

By Mordechai Treiger and Will Lindsey, Environmental Defense Fund

Three years after the Macondo oil well was capped off the coast of Louisiana, BP is still making headlines as it works to resolve legal claims stemming from the incident. As legal interns who have spent the past ten weeks working every day on issues related to the oil spill, even we sometimes find BP’s various legal obligations somewhat confusing. So we put together this brief outline to help ourselves keep things straight. We hope you find it helpful, too.

Private economic claims against BP that have been settled

These claims made headlines recently when BP petitioned U.S. District Judge Carl Barbier, who is overseeing the complex multi-district litigation stemming from the spill, to temporarily halt payments out of a court-supervised settlement fund. Barbier denied BP’s request, thereby allowing settlement administrator Patrick Juneau to continue paying out claims to individuals claiming economic losses as a result of the disaster. Juneau is actually the second settlement administrator of private economic claims – Ken Feinberg oversaw an initial $6.3 billion deal with a subclass of private plaintiffs. Even after BP reached agreements with two classes of claimants, there remain unsettled individual claims that are now in trial against BP.

Government claims against BP under the Clean Water Act and private claims that have not yet been settled

BP is currently in court to determine the extent of its liability to the government under the Clean Water Act, to the five Gulf Coast states for economic losses and to plaintiffs who declined to participate in either the Feinberg or Juneau settlements. While the first phase of the trial focused on events preceding the Deepwater Horizon blow out, Phase II – covering the amount of barrels spilled and the subsequent efforts to stop the flow of oil – will be critical in determining the extent of BP’s liability to damaged parties. Ultimately, Judge Barbier must rule on whether BP was “grossly negligent” or merely “negligent,” a seemingly-semantic distinction that could spell the difference between a $4.5 billion and $17.6 billion payout. Phase II has been moved back from September 16 to September 30 to give both parties more time to prepare. Barbier can only rule on civil penalties under the Clean Water Act and individual claims that have yet to settle once Phase II is complete.

Natural Resource Trustee claims under the Oil Pollution Act

Under the Natural Resource Damage Assessment provisions of the Oil Pollution Act, BP has a responsibility to restore the Gulf to its natural baseline and to make up for lost ecosystem services. In the immediate aftermath of the spill, BP worked with natural resource trustees to provide $1 billion in funding for Early Restoration projects in recognition of the fact that moving quickly was vital to Gulf restoration. But this amount was merely preliminary, and many billions more are needed to fully rehabilitate the damaged shoreline. BP’s commitment to ecological restoration of the Gulf is completely independent of its liability to coastal businesses and residents and to the government under the Clean Water Act.

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My summer at EDF: An intern’s take on Mississippi River Delta restoration

July 26, 2013 | Posted by Delta Dispatches in 2012 Coastal Master Plan, BP Oil Disaster, Clean Water Act, Economics, Restoration Projects, RESTORE Act, Staff Profiles, Wildlife tourism

By Will Lindsey, Environmental Defense Fund

Will Lindsey, Policy and Partnerships Intern, Mississippi River Delta Restoration, Environmental Defense Fund.

As my first summer internship as a Tulane University Law School student comes to an end, I am grateful to have been so involved in work that directly relates to the place where I live and attend school. My work as a policy and partnerships intern with the Mississippi River Delta Restoration Campaign at Environmental Defense Fund (EDF) has ensured that I will never look at the Gulf Coast in quite the same fashion again.

Upon arriving at EDF, I knew I would be working on the RESTORE Act. Generally, I knew the RESTORE Act was significant because it would dedicate a large majority of the Clean Water Act penalties from the Deepwater Horizon oil disaster to the Gulf Coast states for restoration. What I didn't know was what this meant, practically speaking, for the Gulf Coast and for coastal Louisiana, specifically.

I quickly realized that the RESTORE Act has the potential to fund significant restoration projects that the Gulf Coast has desperately needed for a long time. It also became clear that if used wisely, this funding could vastly improve and protect the long-term ecological and economic stability of the Gulf Coast. It also became clear that if used unwisely, there was a possibility of wasting an unprecedented funding opportunity and the chance to make a real difference in the Gulf.

What this means on the ground is using funding from the RESTORE Act, as well other funding streams stemming from the Deepwater Horizon disaster, to implement projects that will both restore the natural environment as well as combat the loss of coastal wetlands that the Gulf Coast has been experiencing for several decades. These projects have long been recognized as needs in the Gulf Coast and have been outlined in many state plans, including Louisiana’s 2012 Coastal Master Plan. These projects not only present the opportunity to protect and restore wildlife habitat, but many of these projects would create and/or restore coastal wetlands which ultimately serve as a natural storm surge buffers for populated areas.

Finally, I realized that the Gulf Coast economy was inescapably intertwined with the Gulf ecosystem. Wildlife tourism, including wildlife watching, recreational fishing and hunting, generates substantial revenue in the five Gulf Coast states and would not exist without a healthy ecosystem. Additionally, the Gulf Coast economy stands to grow as coastal restoration projects are initiated as new funding becomes available. Many businesses throughout the U.S. have recognized the economic opportunities that coastal restoration can provide and thus have begun to include coastal restoration-related services in their repertoires.

With good forethought and cooperation, it seems clear that these funding streams, which resulted from a terrible disaster, can ultimately serve to reverse much of the degradation that the Gulf Coast has seen in the past. In turn, this will strengthen the Gulf Coast economy, protect Louisianans and other Gulf Coast residents from natural disasters and improve, as well as safeguard, natural wildlife habitat.

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Senate hearing reviews Gulf Coast oil spill restoration efforts

June 10, 2013 | Posted by Delta Dispatches in BP Oil Disaster, Clean Water Act, Congress, Meetings/Events, Natural Resource Damage Assessment (NRDA), RESTORE Act, Senator Mary Landrieu

By Will Lindsey, Environmental Defense Fund

The U.S. Senate Committee on Commerce, Science and Transportation held a hearing Thursday (June 6) to review the progress that has been made to restore the Gulf Coast since the 2010 Deepwater Horizon oil disaster. Senators Bill Nelson (D-Fla.) and Roger Wicker (R-Miss.) chaired the hearing, titled “Gulf Restoration: A Progress Report Three Years after the Deepwater Horizon Disaster.” The hearing came nearly a year after passage of the RESTORE Act, legislation that allocates 80 percent of the Clean Water Act penalties from the 2010 oil spill to Gulf restoration. Both senators were cosponsors of the legislation.

Seven witnesses testified at the hearing, representing organizations responsible for managing these restoration funds – as well as the projects that will utilize these funds – that will soon begin flowing through three funding streams as a result of the 2010 spill. These streams include $2.54 billion resulting from the BP criminal settlement, an initial $800 million as a result of a Transocean settlement and $1 billion as a result of agreements with BP to fund early restoration efforts under the Natural Resource Damage Assessment process. The amount of funds available under the RESTORE Act is expected to grow substantially once the ongoing civil trials with BP are complete.

Notably, Sen. Mary Landrieu (D-La.), who played a vital role in passing the RESTORE Act, gave the opening remarks. In reference to the need to better understand the Gulf Coast in order to implement restoration efforts, Landrieu said, “Science can make us much better leaders, if we would just listen to our scientists and to the actual research.” Following these opening remarks, each witness provided an oral testimony on the efforts their individual organizations have taken since the spill.

In response to the first testimony by Lois Schiffer, General Counsel for the National Oceanic and Atmospheric Administration, Sen. Nelson stressed Congress’s expectation that the administrative agencies involved with the implementation of restoration projects follow the legislative intent of Congress in enacting the law. “One of the things that we want to emphasize here is that we want you to pay attention to the law,” Nelson said. The statement came in reference to a previous comment by Sen. Landrieu indicating that the law was written in order to strike a balance between competing interests and thus a portion of the law specifically allocates a percentage of the funds solely to environmental restoration.

In the final testimony, Dr. Stephen Polasky, professor of environmental economics at the University of Minnesota, emphasized the importance of the RESTORE Act and the funding that it will provide to Gulf restoration. “Under the RESTORE Act, we can reinvest in nature to ensure the recovery of the Gulf of Mexico, so that it continues to provide benefits to current and future generations,” said Polasky.

Moving forward, it appears that Congress will be paying encouragingly close attention to the ways in which the Gulf Coast restoration money from these different funding streams is being spent. Also encouraging is the apparent intention of the recipients of these funds to work together to ensure that comprehensive restoration remains a key focal point of the ongoing efforts along the Gulf Coast. As Rachel Jacobson, Acting Assistant Secretary for Fish, Wildlife and Parks for the Department of Interior, stated in her testimony, “We have a responsibility to the public to ensure that we make wise investments that are well-coordinated across the spectrum, through all funding streams.”

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Analysis: Judge poses questions to better understand BP’s liability in Gulf oil disaster

May 22, 2013 | Posted by Kevin Chandler in BP Oil Disaster, Clean Water Act, RESTORE Act

By Whit Remer, Policy Analyst, Environmental Defense Fund

The National Wildlife Federation's David Muth speaks at a press event and rally for the 3-year memorial of the BP oil disaster.

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.

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Questions remain as phase I of BP trial ends

April 26, 2013 | Posted by Delta Dispatches in 2012 Coastal Master Plan, BP Oil Disaster, Clean Water Act, RESTORE Act

By Whit Remer, Policy Analyst, Environmental Defense Fund

Restoration advocates host a press conference to mark the three-year anniversary of the start of the BP oil disaster, outside the Hale Boggs Federal Building in New Orleans.

Testimony in the first phase of the BP oil spill trial wrapped up last week, but it could be at least a year before a decision is made in the case. On Wednesday, the court issued an order seeking clarity on critical issues in the case relating to gross negligence, and with millions of pages of evidence for the judge to consider, many questions remain unanswered. During the eight grueling weeks of trial, both sides presented detailed factual and legal arguments about the events leading up to the disaster, hoping that Judge Barbier would find the law on their side. Inside the courtroom, dozens of lawyers tried to make sense of the multiple safety and operational failures that caused the rig blowup in April 2010. The stakes are high, with potentially billions of dollars in fines and penalties on the line. Outside the courtroom, the Gulf Coast is still awaiting a resolution, so important ecosystem and economic restoration can begin.

Most legal experts predicted that BP and the plaintiffs would settle out of court because of the complexity of legal issues and shear amount of money at stake. BP currently faces up to $17.6 billion in fines for civil violations under the Clean Water Act alone. The company has reportedly already spent $25 billion on cleanup and other payouts to date. But the real loser in the litigation is clear: the Gulf Coast’s communities, wildlife and ecosystems that continue to wait for BP to make good on their promise to make the Gulf whole.

"Restore Our Gulf, Restore Our Future"

Nearly two years ago, BP promised $1 billion to the federal government and five Gulf Coast states to help kick start ecosystem restoration along the Gulf Coast. That promise, known as the Framework for Early Restoration, has funded only $69 million worth of restoration projects to date. That’s less than 7 percent of the $1 billion BP pledged. BP is playing hard ball on all fronts at the expense of the Gulf Coast environment.

This past weekend marked the three-year anniversary of the start of the BP oil disaster. With the next phase of trial not scheduled to begin until September, it’s still a waiting game for the Gulf Coast. Delay is the last thing this ecosystem can afford. Every hour, Louisiana loses one football field of land. The state has developed a comprehensive Coastal Master Plan to restore its coast, to be funded by RESTORE Act money from BP. But as the litigation drags on, restoration along Louisiana’s coast and throughout the Gulf continues to wait.

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