Cleaning Up BP's Mess in the Gulf of Mexico

How will BP be forced to clean up the mess it caused in the Gulf of Mexico?  There is a process created for oil spills by the Oil Pollution Act of 1990 called a natural resource damages assessment, or “NRDA,” usually spoken as “nerd-a” by NRDA nerds.   There is a good summary of the NRDA process as carried out by the National Oceanic and Atmospheric Administration (NOAA) here.  The bottom line is that BP will pay to investigate and restore the damage it did.

In the BP case, the NRDA process is overseen by federal and state natural resource trustees.  NOAA is leading this effort for the federal government, and each of the five affected Gulf states has appointed a lead trustee.  BP has also been invited to participate in the NRDA process, as the law allows. 

The theory behind the NRDA process is simple but the process itself is complex, often becoming constrained by the threat of litigation at its end.  First is the preliminary assessment stage, described by NOAA as:  “Natural resource trustees determine whether injury to public trust resources has occurred.”   This sounds simple but can take years; for example, for marine mammals with long breeding and maturation cycles, it can take 20 years or more to determining whether the oil spill has had an effect. 

Second is the injury assessment and restoration planning stage.  Per NOAA:  “Trustees quantify injuries and identify possible restoration projects.”  This can also be complex and time-consuming:  how do you restore losses to an endangered species like the sperm whale?  How do you restore miles of oiled wetlands where it’s not possible to clean the oil off the vegetation?

Last is the restoration implementation stage.  NOAA explains:  “The final step is to implement restoration and monitor its effectiveness.”  Monitoring can last for many years. 

Why does BP care about all this?  Because they have to pay for it.  And if BP disagrees with what the trustees ask it to do, BP can take them to federal court. 

One thing notably absent from this process is the opportunity for public participation.  The NOAA regulations only require one public meeting, to take comments on the trustees’ proposed restoration plan.  This is pretty late in the process.  NRDC is working with NOAA and at the grassroots level to have NOAA allow more and meaningful public input into all three stages of the NRDA process.  If there is litigation, it is unclear whether NRDC or other groups could become parties to the lawsuit.

A critical issue to be resolved in the NRDA process or, as in the Exxon Valdez situation, in a negotiated settlement, is the scope of a “reopener” clause.  This is important to protect against future damage that we don’t know about now.  Exxon negotiated itself a very sweet deal after the Exxon Valdez spill that all but eliminated the trustees’ right to come back to ask for more funding.  That should not happen again.

A positive result from the Exxon Valdez settlement was the establishment of a citizens’ advisory board, the Prince William Sound Regional Citizens’ Advisory Council.  Here is that body’s take on its effectiveness:  “Given the increasing challenges of operating in the oil industry, and realizing the important role that industry plays in the state and national economies, our nation’s oil supply and its homeland security, instituting a responsible and vigorous citizen oversight can substantially bolster public confidence in the integrity and safety of ongoing as well as new oil operations.” 

Public confidence in the integrity and safety of new oil operations is in short supply right now.  A rigorous, well-thought out NRDA process for the BP spill, with adequate public participation and a reopener clause that is not a give-away to BP, may help fix that.

About the Authors

David Pettit

Senior Attorney, Southern California Air program

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