Tuesday, August 10, 2010

Lawyers and Legal Issues in the Gulf

Following the Deepwater Horizon blowout and subsequent spill, which turned into the worst environmental disaster in United States history, the Gulf was not only teeming with oil but also with attorneys to address the many causes of action flowing from the spill. The obvious harm that resulted to workers, community and environment must be addressed and our legal system is necessarily involved. There are a wide range of lawsuits that continue to be filed in the aftermath of this spill. The families of the deceased oil rig employees have wrongful death claims, and those crewmembers who survived may have injury claims, including possible emotional distress claims. The thousands of fishermen, crabbers, shrimpers and oyster harvesters who rely on the healthy Gulf coast waters for their livelihoods also have a legal claim. In addition, property owners along the coast, restaurants and even vacation renters will want reimbursement for economic damages. Finally, environmental organizations have filed suit for the extensive ecological harm to the Gulf and coastal wetlands.

Several environmental groups have already met to coordinate legal issues and lawsuits. Currently, there are seven Endangered Species Act cases, three Clean Water Act cases, five Outer Continental Shelf Lands Act cases, and three National Environmental Policy Act cases, amongst other environmental lawsuits in preparation or already filed. Here is a "Surfrider on Location" video description of the scene along the coast, which is the subject matter of these suits aimed at protecting and restoring coastal and ocean resources. There is likely still an excess of 100 million gallons of oil in the Gulf waters and the Coast Guard is regularly finding oiled animals and tar balls, including this one-ton tar ball below:

Surfrider Foundation intends to be part of the public process for addressing Natural Resources Damage Assessment, which will also have a number of legal issues encompassed in the NRDA procedure. The NRDA process for the Deepwater Horizon catastrophe is already underway. Under the Oil Pollution Act of 1990, the three steps in an NRDA process are: 1) Preliminary Assessment, 2) Injury Assessment/Restoration Planning, and 3) Restoration Implementation.

During the injury assessment and restoration planning of NRDA, natural resources agency appointed Trustees must determine potential restoration projects. Trustees must consider a reasonable range of alternative approaches, addressing both primary and compensatory restoration, including a “natural” approach without human intervention. “Active” primary restoration approaches would conversely involve direct intervention, and could include removing residual contamination, or replacing vegetation and essential species. NRDA Trustees must then evaluate the alternatives, considering 1) costs, 2) the extent the alternative is expected to return conditions to the baseline and compensate for interim loss, 3) the alternative’s expected chance for success, 4) the chance the alternative would help avoid future injury, or future collateral injury, 5) the extent the alternative would improve multiple resources, and 6) the alternative’s effects on health and safety.

In addition to litigation scoping and engagement, Surfrider Foundation is actively working to support a moratorium on any new drilling through support of the No New Drilling Act and the West Coast Ocean Protection Act. Additionally, we are asking the Senate to follow the House of Representative's lead in passing the CLEAR Act to address necessary reforms to current drilling regulations and by creating an Ocean Resources Conservation and Assistance fund.

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