With any luck, by the beginning of 2011 the BP Macondo well will have been capped and efforts can focus on repairing the livelihoods of millions of Gulf residents, the lives of wildlife that call the Gulf home and the future of the Gulf of Mexico as a functioning ecosystem. What will the federal and state governments do then to try to undo the damage that BP caused?
One of the most important tasks that the federal and state natural resources trustees will undertake once the gusher is capped -- a job that has already begun -- is to conduct a natural resources damages assessment of the affected area. In overview, this is a study of the harm the oil spill caused to the animals, plants and ecosystems of the Gulf Coast, and a recommendation for what actions should be taken to heal what was injured. That study will come with a bottom-line dollar number that BP will be expected to pay. Current news reports show that all Gulf coast states have now traced oil found on area beaches back to the Deepwater Horizon, so this assessment will be no small undertaking.
Let’s break this down into three pieces. First, who are the trustees? In general, natural resources trustees include representatives from state agencies (designated by the state’s Governor), federal agencies (designated by the President) such as the National Oceanic and Atmospheric Administration (NOAA), and tribal governments. For the Gulf spill, NOAA is a lead federal trustee for coastal and marine natural resources, including marine and migratory fish, endangered species, marine mammals and their habitats. Other federal trustees include the U.S. Fish and Wildlife Service, the National Park Service and the Bureau of Land Management, all of which are part of U.S. Department of the Interior.
Second, what are the trustees doing now, before the Macondo well has been capped? Under the Oil Pollution Act of 1990, the trustees are in the “pre-assessment” phase in which they determine whether injury to or loss of use of public trust resources has occurred. The trustees are also determining baseline (pre-spill) data for comparison with post-spill information. According to NOAA’s website, resources currently being assessed include:
- Marine mammals and sea turtles;
- Fish and shellfish;
- Birds;
- Deep water habitat (e.g., deepwater corals and chemosynthetic communities);
- Intertidal and near shore subtidal habitats (including sea grasses, mud flats, oyster beds and coral reefs);
- Shoreline habitats (including salt marsh, beaches, mangroves);
- Terrestrial wildlife and habitats (e.g., alligators, terrapins);
- Water column;
- Submerged aqautic vegetation; and
- Human uses of natural resources (e.g., recreational fishing, boating, shoreline recreation).
Third, what will the finished assessment look like? Under the Oil Pollution Act, BP is liable for any loss of natural resources (e.g., fish, animals, plants, and their habitats) and the services provided by the resource (e.g., drinking water, recreation). The trustees’ assessment will put a dollar value on the cost of restoring, rehabilitating, replacing, or acquiring the equivalent of, the damaged natural resources; the diminution in value of those natural resources pending restoration; and the reasonable cost of assessing those damages. See 33 U.S.Code Section 2706(d).
Natural resource damages may include both losses of direct use and passive uses. Direct use value may derive from recreational (e.g., boating), commercial (e.g., fishing), or cultural or historical uses of the resource. In contrast, a passive use value may be preserving the resource for its own sake or for enjoyment by future generations. See 33 U.S.C. Section 2706(f). These damages are compensatory, not punitive. Funds collected must be used to restore or replace lost resources. A polluter who is unhappy with the outcome of a damages assessment may challenge it in court. There may also be litigation opportunities for community or environmental groups to challenge a damages assessment.
One potential wrinkle in this process is that the party who will ultimately be writing the check, BP, is participating in assessment work. The Washington Post has a good article on this relationship here, and in an understated way explains: “But this close collaboration between federal and state authorities and BP -- which is routine procedure under a legal process known as the Natural Resource Damage Assessment (NRDA) -- has begun to spark concerns among lawmakers and some environmentalists.” One of those concerns was well-expressed by my colleague Sarah Chasis here -- the concern that BP will control Gulf-related research in order to reduce the size of the check that BP will have to write.
A very troublesome and potentially illegal manifestation of the relationship between BP and the federal authorities has recently been reported here. In short, the report claims that BP and the federal government have been working together to “harass, impede, interrogate and even detain” journalists and local activists. For any number of reasons, this cannot be allowed to happen. NRDC and other environmental groups are keeping a keen eye on the situation to make sure that the assessments are honest and transparent to the public, and that BP does not take a substantial number of experts off the table as Exxon did successfully after the Exxon Valdez spill in 1989.
For additional information, take a look at NOAA’s damage assessment, remediation and restoration program here. For Gulf updates and links to currently-existing pre-assessment plans, you can follow this link. More details on how natural resources damages assessments work can be found in NOAA’s regulations, published at 61 Federal Register 440 (January 5, 1996). You can access the Federal Register here. Another helpful source for NOAA’s procedures for these assessments is a NOAA publication titled Injury Assessment Guidance Document for Natural Resource Damage Assessment Under the Oil Pollution Act of 1990 (1996).
I’m going to follow this up with a post about how the natural resources damages assessment after the Exxon Valdez accident in 1989 went awry. Stay tuned.