Monday, September 3, 2012
The BP oil spill case is being handled as an admiralty tort. My colleague, Professor John Costonis, questions whether this is the correct body of law under which to decide the case. In his article (recently posted on SSRN), And Not a Drop to Drink: Admiralty Law and the BP Well Blowout, Costonis makes some compelling arguments that admiralty law in fact is not the correct body of law under which to handle BP claims. Though Deepwater Horizon was a vessel, did the spill actually occur from the vessel? Unlike Exxon Valdez, the oil came from a very different source. Nearly 5 million barrels emanated from the Outer-continental Shelf seabed, which, as Costonis notes, is "denominated by OCSLA as an exclusive federal enclave and a component of the nation's public lands." Contrast this amount with the small amount of oil that actually emanated from the "vessel," which was only 45/10,000ths of the total discharge.
Due to these and other distinctions between the BP disaster and previous admiralty and oil spill cases, Costonis argues that the BP suit should be decided as a matter of environmental law under OCSLA and OPA, with liability and damages attaching per those statutory schemes under principles of "polluter pays." Furthermore, Costonis notes a broader issue that implicates questions of both judicial discretion in applying the law as well as institutional integrity. It seems the Fifth Circuit is predisposed to decide cases under admiralty law, maintaining what Costonis calls a "reflexive embrace of admiralty." In the end, Costonis makes a strong argument that institutional inertia is not a good justification for misapplying the law.
- Blake Hudson