A legislative proposal called the Resources and Ecosystem Sustainability, Tourist Opportunities, and Revived Economies of the Gulf Coast States Act (known as the “RESTORE Act”) was developed to direct a portion of the Clean Water Act civil penalties from the Deepwater Horizon disaster to Gulf restoration. President Obama signed the RESTORE Act into law on July 6, 2012.
The RESTORE Act creates a Gulf Coast Restoration Trust Fund. The Fund will receive 80% of any civil penalties paid under the Clean Water Act by the parties responsible for the Deepwater Horizon oil spill. The Fund will support a variety of projects aimed at helping the Gulf recover from environmental and economic injuries experienced as a result of decades of oil and gas development in the region, including the effects of Deepwater Horizon. Without the RESTORE Act, all civil penalty monies would go to the Oil Spill Liability Trust Fund for, among other things, use in future oil spills.
How Much Money Might Be Involved?
The CWA grants the court discretion to calculate civil penalties on the basis of either the duration of the spill ($37,500–140,000 per day) or the amount of oil discharged ($1,100-4,300 per barrel). The Deepwater Horizon spill lasted 87 days. Exactly how many barrels of oil spilled into the Gulf is still in dispute, but the federal government estimates 4.1 million barrels. The amount of civil penalties collected will depend on a number of factors. These include whether the parties responsible for the spill acted with gross negligence or willful misconduct*, the amount of oil discharged into the water**, and factual findings about the spill.*** As a result, there is a wide range of possible penalty amounts.
* In Sept. 2014, the court determined that the oil spill was the result of BP’s “gross negligence” and “willful misconduct.” This means that BP is subject to enhanced penalties (note that BP has indicated it intends to appeal this decision). The court has yet to determine the amount of the maximum enhanced per-barrel penalty. We use $4,300 per barrel, the amount in an EPA regulation.
** The court has yet to determine the quantity of oil discharged into the water. We use 4.1 million barrels, which is the estimate of the U.S. Department of the Interior’s Flow Rate Technical Group in their 2011 report.
*** The court must consider certain other factors set out in the Clean Water Act when determining civil penalties. These are the focus of the third phase of trial, which is set to begin in January 2015.
What Will the RESTORE Act Do?
Funds directed to the Gulf by the RESTORE Act will be used for several different purposes. The largest portion of the RTF (35%) will be distributed directly to the Gulf states in equal shares (7% each). Just under one-third of the funds (30% plus 50% of the interest earned) will go to a Gulf-wide Restoration Council. Slightly less (30%) will go to the Gulf states based on their oil spill impacts. The remainder of the RTF (5% plus 50% of the interest earned) will fund scientific research and monitoring through a Restoration Science Program and “Centers of Excellence.”
What is the Relationship Between the Gulf Coast Ecosystem Restoration Task Force and the Gulf Coast Ecosystem Restoration Council?
The Gulf Coast Ecosystem Restoration Task Force was created by an Executive Order of the President in 2010. In December 2011, after a year of research and over 40 public meetings, the Task Force published a comprehensive Restoration Strategy for the Gulf of Mexico. Among its various recommendations, the Task Force suggested that a successor body be created to carry on its work.
The RESTORE Act created the Gulf Coast Ecosystem Restoration Council, a region-wide body with representatives from the five Gulf states and relevant federal agencies. The RESTORE Act requires the Restoration Council to, among other things, incorporate the Task Force’s Restoration Strategy in its comprehensive plan for Gulf ecosystem restoration. The Gulf Coast Ecosystem Restoration Council approved its Final Initial Comprehensive Plan for restoring the Gulf Coast on August 28, 2013.
How Can I Participate in RESTORE Act Implementation?
There will be many opportunities for the public to get involved with the implementation of the RESTORE Act. These include:
Commenting on any settlement reached between the federal government and the companies responsible for the spill. The amount of civil penalties that is paid by BP and other companies responsible for the spill may be determined through a settlement agreement. If so, the proposed agreement will be open for public comment before the court determines whether or not to approve it.
Submit project ideas to the lead entities in each state; review and comment on implementation plans when they become available for public comment. Before states (and, in some states, local governments) receive their equal-share funds, they must, among other things, develop a multi-year implementation plan. The public must be given at least 45 days to review and comment on those plans.
Submit project ideas to individual Council members; participate in meetings hosted by Council members; review and provide input on proposed projects and programs; review and comment on the Funded Priorities List when it becomes available for public comment. Only members of the Gulf Coast Ecosystem Restoration Council may submit project and program proposals. The first submission window closed on Nov. 17, 2014 (the proposals are now available on the Council’s website). The Council will select projects and programs from those proposals and include them on a Funded Priorities List. This list will be open for public comment before being finalized.
Monitoring proposed Council actions and deliberations. “Appropriate” Council actions and deliberations must be made available to the public “via electronic means” prior to Council votes.
Submit project ideas to the lead entities in each state; review and comment on plans when they become available for public comment. Before receiving funds based on spill impacts, states (and, in Florida, a consortium of counties) must develop funding plans that describe how funds will be spent. The public must be given at least 45 days to review and comment on the plans.
Comment on the draft science plan. The National Oceanic and Atmospheric Administration (NOAA) is tasked with establishing the NOAA RESTORE Act Science Program “to carry out research, observation, and monitoring to support…the long-term sustainability” of Gulf ecosystems and fisheries. NOAA recently released a draft science plan that was open for public comment until Dec. 15, 2014.
Comment on any rules and policies that are released. Each of the Gulf states will receive funds to award competitive grants to Gulf Coast NGOs and consortia (including universities) to establish “Centers of Excellence.” Gulf states must show that their rules and policies for grants (including the selection of Centers of Excellence) were available for public comment for at least 45 days.
For more details about the RESTORE Act: