BP once again must appear in court today as the final phase of the BP trial begins in New Orleans. This is the third phase of a multiyear trial to determine how much BP and other responsible parties should pay for their role in the BP Deepwater Horizon oil disaster in the Gulf of Mexico. Just last Thursday, the Judge issued another ruling, finding that 3.19 million barrels of oil were released into the Gulf. This means that the maximum fine BP will face is $13.7 billion. This final phase of the trial will focus on eight factors, as required by the Clean Water Act, including BP’s history of prior violations and the seriousness of this violation.
A key factor in court will be BP’s efforts to minimize the harm. In other words, did BP do enough in responding to the disaster to justify lowering their fine? Yes, BP took efforts to stop the flow from the well and the spread of oil, but BP also lied about the rate at which oil was spewing from the well.
The economic impact of the penalty on BP will be interesting to watch as well. The court will need to determine whether this inquiry focuses on BP (the parent company) as a whole or only on its subsidiary, BP Exploration & Production, known as BPXP. BP is expected to argue that the recent dip in oil prices should be factored into this inquiry. (This assertion, as you might expect, has been met with criticism.)
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Photo: Matthew Potenski
Traditional fishery management has been a lot like the movie Finding Nemo, where fishery managers focus on the life of a single species of fish. But, as we saw in the movie, single species of fish do not live alone; they depend on habitat like anemones, they encounter predators like Bruce, and there are human impacts such as removing fish from reefs. Our current management system often fails to consider the bigger picture: the habitats that ocean wildlife require at each stage of life, their roles as predator and prey (Bruce’s attitude on fish as ‘friends not food’ doesn’t really hold true in the ocean), the natural variations in populations in different places and at different times, such as sea turtle migrations, and of course the critical and varied impacts of humans—climate change, pollution, ocean acidification, cultural uses, and demands for food and recreation.
In short, we need an ecosystem approach—a modern, big-picture system that maintains the overall health of the ocean ecosystem by explicitly considering the above. Ensuring the long-term viability of fish populations and communities that depend on them requires a greater focus on the fitness and resilience of the ecosystems that support productive fisheries.
The good news is that U.S. fishery managers are recognizing the need to consider the whole ecosystem. A new report by the NOAA Science Advisory Board takes stock of the shift toward ecosystem-based fishery management across the nation. The report found that the use of ecosystem science in fishery management varies greatly by region, and the last several years have proven to be a time of experimentation in the ecosystem approach. We’re getting there, but we’re not there yet.
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Today, a judge found that the Deepwater Horizon oil spill disaster was the direct result of BP’s “’gross negligence’ and ‘willful misconduct’” under the Clean Water Act. What does this mean for the Gulf? It means more funding available for restoring the Gulf.
Funding for restoration projects via the RESTORE Act comes from Clean Water Act fines. And a finding of “gross negligence,” rather than ordinary negligence, means that fines can be as high as $4,300 per barrel of oil spilled, instead of $1,100. The result of today’s court decision could mean a fine as high as $17.6 billion, 80% of which will be used to repair and restore the Gulf of Mexico ecosystem and the communities and economies that depend on it.
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The Nassau grouper can be found all over the Americas, but it’s facing extinction in nearly all of its habitats. After years of hard work and outreach, the U.S. government is stepping up to the plate to help this critically important species. The National Marine Fisheries Service (NMFS) has announced that the Nassau grouper will be protected under the Endangered Species Act as a threatened species.
Nassau grouper are large reef dwelling fish, historically found in the Western North Atlantic from Bermuda, Florida, Bahamas, Yucatan Peninsula, and throughout the Caribbean to southern Brazil, including coral reef habitats in the Gulf of Mexico and up the Atlantic coast to North Carolina. However, the species is imperiled due to human exploitation and inadequate regulatory protection. The primary threat to Nassau grouper is overfishing from gill nets, long-lines, bottom trawls, and other fishing activities, both intentionally and as by-catch. Despite a fishing ban in U.S. waters for decades, Nassau grouper are commercially extinct in the U.S.
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Sunrise over fishing boat docks in Bayou La Batre, Alabama. Bethany Kraft / Ocean Conservancy
Sunshine Week is upon us! Sunshine week (March 10-16) is a national initiative to promote a dialogue about the importance of open government and freedom of information. Participants include news media, civic groups, libraries, nonprofits, schools and others interested in the public’s right to know.
Governing in the sunshine is especially important for sustainably managing our nation’s fishery resources. Every year, fishery managers make decisions about how to manage fish populations, and they rely on input from fishermen, scientists, community groups and others to help make smart choices. Information gathered on the water about what fish are caught, where they are caught, and interactions with other ocean wildlife is essential for the public to understand how fish populations are being managed and how those decisions affect ocean ecosystems. Access to this information is necessary for everyone, including fishermen, to participate effectively in the management process, and to ensure that our fisheries are managed responsibly and sustainably for the benefit of present and future generations.
However, public access to fishery management information is currently being threatened. Continue reading »
A sea otter swimming near the Exxon Valdez
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.
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Restoring the Gulf of Mexico – A brown pelican flies off Elmer’s Island, Louisiana with an oil rig in the background. Photo: Cheryl Gerber
As the likelihood of a settlement in the civil case against BP for the Deepwater Horizon disaster shrinks, here are a few basic facts about what to expect when the big trial kicks off in New Orleans next week as scheduled.
The trial is being handled in three separate phases: (1) the incident phase; (2) the source control/discharge phase; and (3) the final phase addressing oil containment issues like the use of skimmers, dispersant and boom.
Phase One of the trial is scheduled to start this coming Monday, Feb. 25. It’s called the “Trial of Liability, Limitation, Exoneration, and Fault Allocation.” It is a non-jury trial, meaning Judge Barbier is the decisionmaker. It will focus on the lead-up to the disaster and is designed to determine the causes of BP’s well blowout. It should answer the question of gross vs. simple negligence. The United States intends to prove gross negligence or willful misconduct at the Phase One trial. Yesterday, BP issued a statement about its intentions to “vigorously defend” itself against the gross negligence allegations . This is very important for determining the fines for violations of the Clean Water Act, which will in turn influence how much money is available for restoration of the Gulf of Mexico through the RESTORE Act passed last year.
Phase Two will address efforts to stop the flow of oil from the well. The dates for Phases Two and Three of the trial have not been set. We will be keeping a close watch on the proceedings.
Read what we’ve said previously about what a good resolution to this case should look like.