The Legal Ramifications Of Oil Spills

Oil spills are a form of pollution that occurs when liquid petroleum hydrocarbons are released into the environment, particularly the marine ecosystem. These spills can have severe environmental, economic, and social consequences, including negative effects on human health. As a result, oil spills have sparked intense media attention and political uproar, bringing people together in a political struggle concerning government responses and preventive measures. In the United States, oil spill governance is governed by federal law, with the Oil Pollution Act of 1990 being a pivotal piece of legislation that improved measures to prevent, prepare for, and respond to such incidents.

The Oil Pollution Act of 1990

The Act gave the National Oceanic and Atmospheric Administration (NOAA) and other agencies the authority to address the impacts of oil spills on natural resources in US waters and shorelines and hold polluters accountable. It improved their ability to prepare for, respond to, and restore habitats after oil spills, with the Coast Guard overseeing the immediate government response. The legislation also required oil storage facilities and vessels to submit plans to the Federal government, detailing their response to large discharges, with the Office of Emergency Management (OEM) working to prevent accidents and maintain response capabilities.

The OPA90 established the Oil Spill Liability Trust Fund (OSLTF), financed by a tax on oil, to pay for cleanup when the responsible party is unwilling or incapable. The OSLTF also covered the cost of damage assessment and restoration activities, leading to the creation of the Natural Resource Damage Assessment (NRDA). The Act required double-hulled tankers in US waters and empowered the US Coast Guard to enforce its provisions, marking a significant expansion of their law enforcement duties.

The OPA90 was a direct response to major oil spills, including the Exxon Valdez spill in Alaska in 1989, which was, at the time, the largest oil spill in US waters. The legislation was passed unanimously by both houses of Congress, and President George H.W. Bush signed it into law on August 18, 1990.

The Clean Water Act

The CWA's National Pollutant Discharge Elimination System (NPDES) regulates point sources that discharge pollutants into US waters. Compliance monitoring under the NPDES Program involves a range of techniques, including Discharge Monitoring Report reviews, on-site compliance evaluation, and providing assistance to enhance compliance with NPDES permits. The objective is to address the most significant problems and promote compliance among the regulated community.

The CWA prohibits the discharge of oil or hazardous substances into US waters or their adjoining shorelines in quantities that may be harmful to public health, welfare, or the environment. Oil spills can harm animal and plant life, contaminating food sources and nesting habitats. Petroleum oils can form tars that persist in the environment for years.

To prevent oil spills, the CWA requires owners and operators of non-transportation-related oil facilities to make and implement plans to prevent oil discharges. EPA regional personnel conduct inspections, which may be announced or unannounced, to ensure compliance with these regulations. Facilities inspected are chosen randomly or based on risk factors, such as facility proximity to drinking water intakes or environmentally sensitive areas.

The Trans-Alaska Pipeline Authorisation Act

The Trans-Alaska Pipeline Authorization Act of 1973 was a federal law signed by US President Richard Nixon on November 16, 1973. It authorised the construction of an oil pipeline connecting the North Slope of Alaska to Port Valdez. The act was introduced by long-time Washington Senator Henry M. Jackson and supported by Alaska's congressmen, Don Young, Ted Stevens, and Mike Gravel.

The act was significant because it halted all legal challenges against the construction of the pipeline, which were primarily filed by environmental activists. It also contained no amendments that allowed federal and state agencies, such as the Environmental Protection Agency or the Alaska Department of Natural Resources, to regulate the pipeline's construction. This was in accordance with President Nixon's request.

The Trans-Alaska Pipeline Authorization Act played a role in addressing the 1973 oil crisis. The pipeline system was eventually constructed as a result of the act.

While the act enabled the construction of the Trans-Alaska Pipeline, it is important to note that oil spills from pipelines and other sources have had significant environmental and legislative impacts in the United States. For example, the Exxon Valdez oil spill in 1989 and the Deepwater Horizon oil spill in 2010 led to the passage of the Oil Pollution Act of 1990, which improved measures to prevent, prepare for, and respond to oil spills in US waters. This act gave agencies like NOAA the authority to address the impacts of oil spills and hold polluters accountable.

The Deep Port Act

• The National Oil and Hazardous Substances Pollution Contingency Plan (NCP, 1968)
• The Clean Water Act (CWA, 1972)
• The Trans-Alaska Pipeline Authorization Act (1973)
• The Outer Continental Shelf Lands Act Amendments (1978)
• The Hazardous Liquid Pipeline Act (1979)

The NCP was created in response to the Torrey Canyon incident and established the federal government's response system to oil spills and hazardous materials releases. The CWA was the most extensive legislation addressing oil spills prior to the Exxon Valdez spill in 1989, and it set requirements for post-spill reporting, response, and liability. The Trans-Alaska Pipeline Authorization Act covered oil spills and liability related to the Trans-Alaska Pipeline System, recognising that spills from this pipeline could reach coastal waters via inland rivers. The Outer Continental Shelf Lands Act Amendments addressed oil spills, cleanup, and liability for oil extraction facilities in federal offshore waters. The Hazardous Liquid Pipeline Act granted the US Department of Transportation (DOT) authority over oil spills from pipelines.

The Outer Continental Shelf Lands Act Amendments

The Outer Continental Shelf Lands Act (OCSLA), created on 7 August 1953, defines the Outer Continental Shelf (OCS) as all submerged lands lying seaward of state coastal waters (3 miles offshore) that are under US jurisdiction. The Act empowers the Secretary of the Interior to administer mineral exploration and development of the OCS.

The Amendments require the President to establish procedures for settling any international boundary disputes concerning the OCS within a year of enactment. They also require the Secretary of the Interior, the Secretary of Energy, or the Federal Energy Regulatory Commission to promulgate regulations that include provisions for the suspension or temporary prohibition of any operation or activity pursuant to any lease for specified reasons.

The Amendments revise the Secretary's authority over the granting of pipeline rights-of-way on the OCS, requiring the Secretary to assure maximum environmental protection by utilising the best available and safest technology. They also revise bidding and leasing procedures, requiring an annual report to Congress on the use of various bidding options, and that the Secretary provide Governors of affected coastal states with the opportunity to share in the revenues generated by federal leases.

The Amendments establish procedures for geological and geophysical exploration in the OCS, requiring submission of exploration plans to the Secretary for approval. They also require the Secretary to prepare and periodically revise an oil and gas leasing program consistent with the purpose of the Act, and to be responsible for preparing any environmental impact statements as required by the National Environmental Policy Act of 1969.

The Amendments establish an Offshore Oil Pollution Compensation Fund within the US Treasury, imposing a fee of up to three cents per barrel on oil obtained from the OCS to maintain the Fund at a level of between $100 million and $200 million. They also impose civil and criminal penalties for non-compliance with the provisions of the Act, including fines of up to $10,000 per day for civil penalties, and up to $100,000 and/or imprisonment for up to ten years for criminal penalties.

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