There was a great deal of excitement in the courtroom across the street from Ocean Conservancy’s Gulf restoration office during BP’s first week at trial. Objection after objection from BP’s legal team have been over ruled by Judge Barbier, a culture of BP putting profit before safety has steadily emerged, and BP has found itself in perhaps one of the world’s largest finger pointing game with Halliburton and Transocean. The trial has allowed everyone the opportunity to begin learning exactly why 11 men died and oil began gushing into the Gulf of Mexico when the Deepwater Horizon caught fire and sank. But as we learn about the past, we must also think about our future.
We know the people of the Gulf Coast and the coastal and marine ecosystems of the Gulf could feel the effects of the BP oil disaster for years, maybe even decades. That’s why it’s critical that however BP settles up , either in or out of court, the resolution of this disaster must keep options open for addressing any damages that may not be discovered until well into the future. One way to do this is to include a reopener clause in any form of a resolution.
A reopener clause is a sweetener to facilitate resolution of the case. It represents an additional sum of money that may be accessed in the future, thus “reopening” the issue, but only if additional injuries not known at the time of the settlement manifest. It has advantages for both sides. With a reopener clause, the federal and state parties can rest assured that if any environmental problems from the spill show up later, the government isn’t left empty handed. The polluter, BP, can seek comfort in the fact that it won’t be held accountable for potential injuries that have yet to be proven or even hypothesized at this time. This may sound logical and simple, but the devil is in the details.
After the Exxon Valdez oil spill in Alaska, the settlement over natural resource damages included a reopener clause, which would require Exxon to pay an additional $100 million to fund restoration or rehabilitation of resources whose injuries were not foreseeable at the time of the settlement in 1989. However, nearly 25 years later and despite ongoing attempts, the reopener funding has never been accessed, in part because the government has been unable to meet the very high standard set by the clause. The Exxon Valdez reopener read: “. . . injury to the affected population, habitat, or species could not reasonably have been known nor could it reasonably have been anticipated by any Trustee from any information in the possession of or reasonably available to any Trustee on the Effective Date.”
One of the main problems with this language is the word “anticipated.” The Trustees did not in fact anticipate that the Pacific herring population would collapse in 1993 or that there would still be essentially unweathered, buried oil on beaches in 2001, more than a decade after the spill. By rejecting anything that could have reasonably been anticipated, the clause denies a reopener claim for anything but an injury that was unprecedented or wholly new to science. If, for example, there was any mention in the pre-settlement scientific literature of oil persisting on a decadal scale or of impacts to fish at a population level, such mention could be cited as a reason to not invoke the reopener clause. The result of the Exxon Valdez reopener is that Trustees were left with no recourse for injuries from the spill that became evident after settlement.
The problematic “anticipated” language should not be included in reopener language for the BP spill case. Instead, the clause must put the focus on the ability to scientifically detect injury.
We suggest reopener language such as this: “Injury to the affected ecosystem, population, habitat, or species was not manifest or could not reasonably have been documented scientifically from information in the possession of or reasonably available to any Trustee on the Effective Date.” With this clause, rather than having to anticipate injury, the Trustees would have to prove that the injury could not have been scientifically documented at the time of settlement.
As with the recovery of Prince William Sound in the months, years and decades after the Exxon Valdez spill, it will take many years to understand the impacts to the natural resources of the Gulf of Mexico from the BP disaster. Including an effective reopener clause in any form of resolution to the BP oil disaster will help to protect the Gulf of Mexico, one of the world’s greatest natural treasures.