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The Evolution and Future of the Oil Pollution Act

Wednesday, July 26, 2017
Sara Kaufhardt

Sara Kaufhardt

Research and Publications Intern

Brett Korte

Brett Korte

Staff Attorney; Director, Associates Program

The 1989 Exxon Valdez oil spill, which released 11 million gallons of oil into the Pacific Ocean, provided the impetus for U.S. Congress to pass the 1990 Oil Pollution Act (OPA), which strengthened the federal government’s ability to respond to and prevent oil spills. OPA is part of an evolving field of law that is increasingly relevant, given the rise in oil and gas production in the United States and the correlated rise of oil spill accidents, most notably the 2010 Deepwater Horizon oil rig explosion.

As the United States becomes a net exporter of petroleum products, the expansion of onshore oil transportation is producing significant controversy. The Trans-Canada and Dakota Access pipelines raised issues concerning problems posed by the construction of oil pipelines. Given the Trump Administration’s commitment to expand domestic oil production, it is critical to examine the challenges OPA may face in an evolving energy market.

Skimming oil in the Gulf of Mexico during the Deepwater Horizon oil spill (Photo: NOAA)

ELI’s annual Oil Pollution Act Update, held on June 20, 2017, brought together a panel of experts to address the question of how OPA will be impacted as the landscape of American energy production evolves. The discourse highlighted future challenges faced by OPA, the potential legal shortcomings, and the efficacy of OPA to prevent intentional vessel pollution. 

Russ Randle, a partner at Squire Patton Boggs LLP and longtime moderator of the OPA Update series, began the discussion by examining the dramatic changes to the U.S. oil industry over the last 10 years, due mainly to increased natural gas production through hydraulic fracturing, or fracking, which has fueled the United States’ resurgence as a leading energy producer. He noted that revival of oil and natural gas production has reached 9.3 million barrels of oil per day, close to production levels last seen in the 1970s.   Randle further addressed the critical challenges OPA will face in this revitalized domestic energy market, specifically addressing the widening of the Panama Canal.  This allows the shipment of 2 million barrels of oil in a single tanker.  Randle noted the danger in shipping such an unprecedented amount of oil: “The good news is that there are very few shipments moving and statistically the chance of an accident is low.  The bad news is if there is an accident, it is going to be a whale of an accident. People need to play close attention to safety measures going forward.” 

The panel also highlighted the statute’s shortcomings in mitigating environmental degradation resulting from the construction of oil pipelines. Cyn Sarthou, Executive Director of the Gulf Restoration Network based in New Orleans, asserted that the Pipeline and Hazardous Materials Safety Administration (PHMSA) established under OPA is underfunded and understaffed, which hinders its ability to adequately regulate the safe construction of pipelines. Sarthou observed that PHMSA has just “500 employees with a budget of $250 million for 2.7 million miles of existing pipeline.”  As a result, the under-resourced PHMSA is unable to properly oversee all pipeline construction projects and relies upon self-reporting of safety concerns in the construction and maintenance of oil pipelines. Further, the lack of a citizens’ suit provision in OPA hinders the public’s ability to augment the oversight of the safety of oil pipelines.

Additionally, Sarthou noted, PHMSA regulates pipelines only after they are constructed.  Due to the lack of oversight by the PHMSA in evaluating the necessity of proposed pipelines to begin with, many coastal communities suffer environmental harms, such as erosion of coastal wetlands, caused by oil pipeline construction and abandonment. As such, Sarthou argued that the PHMSA process of permit approval for pipeline construction should be reformed to include the evaluation of the cumulative environmental impact of a proposed pipeline rather than only accounting for the piecemeal environmental impacts of portions subject to federal permitting (such as river crossings that need Clean Water Act permits from the U.S. Army Corps of Engineers).          

Finally, Richard Udell, Senior Counsel in the Environmental Crimes Section of the U.S. Department of Justice, emphasized the recent success of OPA as a legal framework for pursuing action against intentional vessel pollution. In conjunction with other laws, OPA strengthens the prosecutorial power to address intentional oil discharges into the ocean. Udell noted that the 1989 Exxon Valdez accident was the catalyst for strengthening federal laws to incentivize oil companies to prevent future accidents. “Intentional vessel pollution,” however, is a pervasive type of oil pollution that refers to the deliberate discharge of oil from “grey” water into the ocean.

Citing the successful prosecution of Princess Cruises, an international cruise line, Udell highlighted the power of OPA to punish and dissuade this type of pollution. Princess Cruises was caught circumventing protocol on the proper disposal of oil by concealing it in grey water, which is largely unregulated, before discharging it into the sea.  Ultimately, Princess Cruises pled guilty and was put on probation, which included monetary fines and pollution abatement.  Thus, this case exemplifies the power of OPA, often in conjunction with other legal frameworks like the International Convention for the Prevention of Pollution from Ships (MARPOL), to exact justice against corporations that engage in unlawful pollution.

The panel’s discussion highlights the dynamic nature of OPA and environmental statutes, which must be adapted to evolving economic conditions in order to preserve environmental quality. Moreover, the diverse perspectives from the public, private, and nonprofit sectors underscore the importance of cross-sectoral collaboration to safeguard our oceans and land from an array of oil pollution threats.