What Would Justice for the Gulf Look Like?

Dec 06 Posted by Ben Weber

It doesn’t seem that long ago that I found myself on the bow of an offshore charter fishing boat trying to process the sight that lay before me. We had been working out of Venice, LA since the 2010 BP oil spill began and reports had come in from a charter captain that there was a huge swath of water just a few miles out of the pass that appeared to be covered in oil thick enough to stand on. We had left the Venice marina just an hour or so earlier, and in the short run out of South Pass, we found what we were looking for. Miles and miles of thick, dark, oil as far as the eye could see.

Green Fire Productions aerial image with credit

At this point, the 2010 BP oil spill had been going on for weeks, and we had seen multiple failed attempts to plug the well. We had seen large bands of oily sheen creeping slowly towards Louisiana’s coastline. We would eventually see portions of our beloved marshes—where we had been sight casting to tailing redfish just prior to the spill—become inundated with oil.

Of all the terrible things I would witness during the spill, it was this day out of South Pass that would stick with me. The beautiful fishing grounds of south Louisiana, both inshore marshes and open water, were completely saturated with oil from BP’s Macondo well.

Oiled MarshPhoto courtesy of the Louisiana Governor's Office Photo courtesy of the Louisiana Governor's Office

It was the first time the fishing guides I had befriended during the spill seemed defeated. Until this point, they had remained optimistic that the Gulf could survive this onslaught of oil, exemplifying the resilience that has come to define the people of coastal Louisiana. But today, they could not mask their emotions and the anxiety brought about by the thought of losing the resource upon which their livelihoods and their families depended.

Those of us lucky enough to really know the Gulf, recognize that this ecosystem is incredibly resilient. Yes, there have been natural seeps leaking oil into the deep waters of the Gulf since long before our time. Yes, there have been countless devastating hurricanes. Yes, so many of the Gulf’s critical coastal wetlands—particularly in the delta—have been lost. But despite it all, the Gulf remains full of life and full of fish.

But I think we need to be honest with ourselves, as the charter captains were that day. This unprecedented release of 4.9 million barrels of oil plus large amounts of methane and dispersants has caused near-term impacts to the fishery, coastal habitat, and thousands of people’s livelihoods. It will cause long-term damage to the Gulf, with the full extent of impacts revealing themselves as the years go by. That’s the bad news.

The good news is that the Gulf region has a potential champion in the Department of Justice (DOJ). It’s a pretty simple scenario—if DOJ gets it right, they will prevent BP from walking away with the bargain basement settlement agreement recent media reports have indicated BP is looking for.

To understand the crucial role DOJ plays, consider the outstanding elements of the case. BP still owes billions of dollars in civil penalties under a host of environmental laws, such as the Oil Pollution Act, Clean Water Act and others.

The Oil Pollution Act of 1990—introduced following the Exxon Valdez oil spill—created the rules for calculating BP’s restoration liability. If BP paid the same per-gallon amount as Exxon did for the Valdez spill, the total payment would be in the range of $31 billion. This money will be used to clean up the spill and restore the Gulf.

The Clean Water Act fines will also be significant. If DOJ is able to prove that BP was guilty of gross negligence—and the agency seems confident in their ability to do just that—BP’s total fines under this law alone could be in the range of $20 billion. Thanks to the recent passage of the RESTORE Act, 80% of these Clean Water Act fines will go back to the Gulf States for restoration.

To be clear, BP flagrantly violated both the Clean Water Act and the Oil Pollution Act—whatever settlement is reached needs to include robust payments under both these categories.

The surprisingly good news is the Department of Justice recently announced the largest criminal settlement in history: $4.5 billion. And in a totally unexpected move, the DOJ structured the plea agreement so it specifies that $1.2 billion of this money will be used for Mississippi River diversions and barrier island restoration in Louisiana.

Another $1.2 billion will be distributed to the remaining Gulf States—Florida, Alabama, Mississippi and Texas—also for restoration purposes.

This robust criminal settlement gives us reason to believe that DOJ is taking its role as a champion for the Gulf seriously—it is a wonderful start. However, the fight is far from over.

Folks down here in Louisiana don’t believe we have seen the full extent of the spill’s impacts on our hunting and fishing grounds. We know it will take years—even decades—before we understand the full extent of the impacts on the Gulf.

design © 2014 lucid crew