The Blog Aquatic » transocean http://blog.oceanconservancy.org News, opinions, photos and facts from Ocean Conservancy Thu, 18 Dec 2014 15:52:13 +0000 en-US hourly 1 http://wordpress.org/?v=3.4.2 Lessons Learned from Exxon Valdez: The Devilish Details of Why We Must Keep BP on the Hook http://blog.oceanconservancy.org/2013/03/06/lessons-learned-from-exxon-valdez-the-devilish-details-of-why-we-must-keep-bp-on-the-hook/ http://blog.oceanconservancy.org/2013/03/06/lessons-learned-from-exxon-valdez-the-devilish-details-of-why-we-must-keep-bp-on-the-hook/#comments Wed, 06 Mar 2013 19:18:19 +0000 Ivy Fredrickson http://blog.oceanconservancy.org/?p=4883

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.

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.

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Ringing in the New Year with RESTORE’d Hope http://blog.oceanconservancy.org/2013/01/03/ringing-in-the-new-year-with-restored-hope/ http://blog.oceanconservancy.org/2013/01/03/ringing-in-the-new-year-with-restored-hope/#comments Thu, 03 Jan 2013 20:35:54 +0000 Bethany Kraft http://blog.oceanconservancy.org/?p=4094

Oil on the surface of the Gulf of Mexico, with a drilling rig in the background. Photo by Brandon Shuler

Passed in July 2012, The RESTORE Act directs money from penalties in response to the BP oil disaster to the Gulf Coast, but has only been a written law – a promise to the citizens of the region – until now. A newly announced $1.4 billion settlement between the Department of Justice and Transocean Ltd will provide some real green to the RESTORE Act and help to begin the restoration of the Gulf of Mexico’s coastal and marine resources.

Holding all parties responsible for their role in the BP oil disaster is imperative to provide some of the financing needed to restore the Gulf’s ecosystems and people. Transocean will plead guilty to violating the Clean Water Act and pay over a billion dollars in fines.

It is great news that a combined $300 million from the settlement will be directed to the National Fish and Wildlife Foundation and National Academy of Sciences. Using and improving science is extremely important not only in recovering from disasters, but in gaining a better understanding of the Gulf’s resources so we can provide better protection for these resources so critical to the culture and livelihoods of the Gulf Coast and the Nation.

This new settlement is a great step forward, but the biggest step is yet to come. BP still needs to be held fully accountable and it’s unfortunate that we still have no resolution of civil and administrative claims. We deserve nothing less than a trial resolution that recognizes and compensates the people of the Gulf for all that has been lost.

As we move forward, we must not forget the off-shore environment, where this disaster began.  Restoration of the Gulf requires an approach that addresses marine resources as well as coastal environments and Gulf communities.

We must focus our effort, energy and funding to restoration of our coastal and marine environments as well as our coastal communities if we are going to realize our vision of a vibrant and healthy Gulf region. Ocean Conservancy encourages everyone to continue to be involved in the restoration process and to work together to make sure all liable parties are held accountable and that we have a Gulf of Mexico stronger than before.

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