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.

Gushing with Legal Issues

The tragic oil spill in the Gulf of Mexico resulting from the Deepwater Horizon rig blow out on April 20, 2010 has shocked the nation and has already been labeled America's worst environmental disaster. Predictably, where there is a man-made disaster and deep pockets, there will be Plaintiffs. Goodness knows there is evidence of injustice.

There have been dozens of negligence lawsuits and other claims filed by fishermen, shrimpers and the survivors of the eleven oil rig employees who lost their lives in the explosion. In one recent proposed environmental law suit, environmentalists chose to invoke the citizen suit provision of the Clean Water Act to address BP's violations resulting from the Macondo oil well blow out and weeks of subsequent spillage. Gulf Restoration Network, the Louisiana Environmental Action Network and Environment America have given formal notice to BP of the groups' intent to sue. While Surfrider is assessing our involvement, if any, in the litigation surrounding the spill and efforts to mandate strong and effective clean up efforts, our Not the Answer campaign has focused on proactive legislative efforts.



Surfrider Legal's main focus thus far is currently embodied in our legislative work aimed at restoring the 28 year Congressional and Executive moratoria on any new offshore drilling that was allowed to lapse in the fall of 2008. Two bills are currently going through Congress that would help to restore protections against new offshore drilling and safety for our national waters and coasts. Here is a summary of the proposed federal legislation:

H.R. 5213; "West Coast Protection Act of 2010"
On May 5th, Representatives from California, Oregon, and Washington introduced the West Coast Protection Act of 2010 to the House of Representatives, which would prohibit offshore drilling off the coasts of California, Oregon, and Washington. The bill would amend the Outer Continental Shelf Lands Act, which authorizes the Secretary of the Interior to grant offshore oil and gas leases. Under the new Act, the Secretary could not grant new leases for exploration, development, or production of oil and natural gas off the west coast. The bill was referred to the Committee on Natural Resources.

H.R. 5248; "No New Drilling Act of 2010"
Representatives from California, Florida, and New Jersey introduced legislation in the House of Representatives May 6th, which would prohibit further leasing of any area in the United States' outer continental shelf for the exploration, development, or production of oil, gas, and minerals. The bill would eliminate parts of the current Outer Continental Shelf Lands Act, which allow the Secretary of the Interior to create and revise oil and gas leasing programs off U.S. coasts. The bill was referred to the Committee on Natural Resources.