Frequently Asked Questions (FAQs)

Deepwater Horizon Litigation: Where Things Stand and What is Next

On April 20, 2010, an explosion rocked the Deepwater Horizon mobile offshore drilling unit. Eleven crewmen lost their lives in the blast, and the rig burned for the next thirty-six hours. Over the next three months, oil gushed from the wellhead into the Gulf of Mexico, impacting more than 1,000 miles of coast. The Deepwater Horizon disaster spurred numerous lawsuits. The trial that is the subject of this blog is largely focused on Clean Water Act (CWA) civil penalties related to the oil spill. Two phases of the trial have already been completed, with the next phase set to begin on January 20. The third phase will focus on eight factors set out in the CWA, which must be taken into account in determining civil penalties. This has important implications for the 80% of CWA penalties that will be channeled through the RESTORE Act for economic and ecological recovery activities in the Gulf.

Fisheries Observers: An Important Enforcement Tool

Top: short spine thorny head. Bottom: rare broad banded thorny head. Credit: Johanna Marsters
Fisheries observers serve important roles in fisheries management. From a scientific perspective, they provide independent verification of the amounts and types of fish caught, providing key data for stock assessment. In some fisheries, observers also have an important enforcement function: they report to law enforcement when they witness violations of fisheries regulations. In 2010, I published an article, based on NOAA’s enforcement data, showing that observer reports are a key source of information for understanding fishers’ compliance while at sea. With observer information, enforcement agents can take action to investigate and prosecute violators who are undermining fishery sustainability, and fisheries managers can design better regulatory systems to increase compliance. Just last week, NOAA lawyers successfully concluded three cases for $1.75 million against American Seafoods Company (ASC). Observers first broke the case when they noticed and reported that ASC was tampering with the scales on its massive pollock fishing vessels. As a result, ASC caught more fish than it was allowed to over a five-year period, overfishing and threatening the long-term sustainability of the world’s second largest fishery—a resource that provides filet-o-fish sandwiches for McDonald’s, artificial crab meat for sushi, fish fingers for Bird’s Eye, and many other products. Observer reports led to an investigation by the Office of Law Enforcement (OLE) and eventually to a case prosecuted by NOAA’s General Counsel. What can we learn from this case? 1. We need a strong fisheries enforcement program to ensure that fisheries are as sustainable in practice as they are on paper. 2. Observers are a critical component of fisheries enforcement systems. Unfortunately, with some exceptions, US fisheries managers are ignoring both lessons. After a multi-year, comprehensive review of OLE practices, NOAA is still struggling to enforce the law—especially in areas like New England where the need is greatest due to the collapse of Atlantic cod and other groundfish.[i] Without strong and effective enforcement, these and other fisheries are seeing substantial illegal fishing that undermines stock rebuilding and sustainability. In addition, US observers are only required to report violations in the North Pacific—even though ELI’s work and enforcement cases like the one settled last week clearly show the value of observers for enforcement.
Observers on a fishing boat in Alaska. Credit: NOAA.
Observers on a fishing boat in Alaska. Credit: NOAA.
Managers in other regions have fought to limit the use of observers for any purpose other than science. First, some opponents of the idea argue that observer reporting would bias the scientific data that observers collect because it would change the way fishers act. However scientific evidence already shows that fishers behave differently when there is an observer on board, regardless of that observer’s role—in other words, the data collection is already biased. Second, opponents argue that observer reporting could result in physical danger to observers from fishers. Observers face many dangers at sea—and sadly, this sometimes includes danger from fishers who view observers as unwelcome guests on fishing vessels. Our data show that observers around the U.S. regularly report harassment. North Pacific observers report harassment and interference more than twice as often as observers in other regions [ii]—so concern about observer safety in a mandatory-enforcement-reporting world are worth taking seriously. However, more work is needed to determine if this difference is a result of an increase in threats to or actions against observers or if there is some other cause—for example, observers trained to report violations may be more aware of what conduct constitutes harassment and more willing to report these violations when they occur. In the meantime, the answer is not to strip observers of responsibility, but to ensure that harassment and interference reports are investigated and prosecuted swiftly and seriously.
Observers working in the Pacific. Credit: Johanna Marsters.
Observers working in the Pacific. Credit: Johanna Marsters.
The time is ripe for Congress, NOAA, and regional fishery management councils to move forward together to strengthen fishery enforcement by requiring observers to report violations that they witness, and by committing to protect observers while they are at sea. LEARN MORE: --------------------------------------------- [i] Gulf of Maine cod is at an all-time low—just 3-4% of the population needed for a healthy stock. [ii] Based on NOAA enforcement data and information on sea-days sourced from the National Observer Program FY 2012 Annual Report, observers report one harassment violation every 275 sea-days versus one in 641 days elsewhere, and an interference claim once in 155 days in the North Pacific versus one every 412 elsewhere.

Deepwater Horizon Project Tracking

[caption id="attachment_456" align="alignright" width="300"]Restoration at Rainey Refuge in Louisiana. Credit: NOAA Restoration at Rainey Refuge in Louisiana. Credit: NOAA[/caption] In the Gulf of Mexico region, 89 projects to date have been finalized for restoration and recovery in the wake of the Deepwater Horizon oil spill. These projects are funded under several different mechanisms, including the Natural Resource Damage Assessment process and the National Fish and Wildlife Foundation’s Gulf Environmental Benefit Fund. Over the coming years, hundreds if not thousands of projects will be finalized under these mechanisms, the RESTORE Act, and other processes. The projects are often accompanied by lengthy descriptions and analysis, from cost and project descriptions to environmental review and ongoing maintenance and monitoring. With this wealth of information available or forthcoming, it becomes important to understand how it all fits together, and how Deepwater Horizon recovery projects will contribute to long-term ecosystem health and sustainability in the Gulf. So the big question is: How can we summarize thousands of pages and hundreds of thousands of words to paint a more complete picture of Gulf restoration that informs decisionmakers and the public? ELI’s Ocean Program and other organizations are trying to answer that question. To find solutions, we must keep in mind three important points: 1. It is difficult to track the various restoration and recovery processes as they move along, and it is only going to get more difficult as more funding is made available. 2. Easy access to understandable information leads to meaningful public engagement, enhances transparency, and increases opportunities for collaboration. 3. Geospatial information, user-friendly data layers, and tracking tools can help stakeholders and policy-makers make efficient and accurate decisions. What are the tracking tools, and how can you use them? [caption id="attachment_468" align="alignleft" width="249"]Restoration Projects Database - Google Chrome 9232014 83403 PM  [/caption] The Ocean Program manages a searchable database for all restoration projects that have been finalized to date. The database allows users to filter results by state and then by funding mechanism, and to find projects by state or county/parish through a search function. These tools attempt to track the projects as they are announced so people can see where the money is being spent, along with some details about specific projects. The Gulf of Mexico Alliance has a map of restoration projects and other efforts related to priority issues in the Gulf (not limited to projects receiving Deepwater Horizon recovery funds). It is an example of how maps may be especially useful at providing geospatial information and summarizing thousands of projects in a single snapshot. The Ocean Conservancy has produced a map of NRDA and NFWF restoration projects funded through May 2014. Finally, the NRDA Trustee Council maps all proposed Deepwater Horizon NRDA restoration projects and provides detailed information on projects that have been selected for early restoration. What is next? One thing we know for certain: there are many more projects coming over the next several years. As ELI refines its project tracking tools, our first priorities are to keep the current tools up to date and to incorporate feedback and suggestions to create the most useful information possible for the public and stakeholders. Our long-term priority, however, may turn out to be the most exciting: What if we incorporated all of the information from the databases and the maps into a single, straightforward, and simple mapping tool that anyone can use? [caption id="attachment_475" align="alignright" width="353"]Restoration underway in Plaquemines Parish, Louisiana. Credit: ELI. Restoration underway in Plaquemines Parish, Louisiana. Credit: ELI.[/caption] Those efforts are underway now, led by the Gulf of Mexico Alliance, the Trust for Public Lands, and Ducks Unlimited, with ELI’s Ocean Program and other entities participating in information-gathering for the new tracker. Read about this initiative here. What is the final goal for Deepwater Horizon project tracking? Thousands of words have been written on Gulf restoration and recovery projects, and many thousands more are coming. Very few people have the time or energy to understand how each individual project fits into the broader recovery picture. But by transforming those words into an easier-to-understand picture, our goal is to make participation in the recovery process something that is not limited to those with technical expertise; our hope is to use database and mapping tools to bring information about Gulf restoration and recovery to all.

Deepwater Horizon: Four Years Later

More than four years ago, on April 20, 2010, an explosion rocked the Deepwater Horizon mobile offshore drilling unit. Eleven crewmen lost their lives in the blast, and the rig burned for the next thirty-six hours. Then, 41 miles off the southeast coast of Louisiana, the Deepwater Horizon sank. At the wellhead, nearly a mile underwater in the Gulf of Mexico, the environmental disaster was just beginning. Oil gushed for the next three months, during which millions of barrels of oil mixed with millions of gallons of dispersant to contaminate more than 1,000 miles of coast. New pictures released in Daniel Beltrá’s book “SPILL” show some of the acute impacts on the Gulf in the month after the April 2010 explosion. The pictures are evocative, often resembling haunting impressionist paintings. The Deepwater Horizon disaster occurred nearly four years ago, and the recovery and restoration processes in the Gulf of Mexico region are ongoing. The environmental, social, and economic impacts on the region are massive and enduring. But across the country and the world, the disaster and its aftermath have largely receded from current attention. Although huge swaths of oil no longer coat the Gulf of Mexico and beaches of the Gulf coast, oil still is present four years later in some areas, and the long-term effects of the Deepwater Horizon spill will continue to be felt for years and decades to come. The Environmental Law Institute (ELI), through our publicationsworkshops, and social media outreach (FacebookTwitter), aims to shine a spotlight on the ongoing impacts and the efforts to restore injuries and recover from harm. This blog will be another tool to stay abreast of Gulf issues. Among other things, we will highlight legal developments, economic and industry news related to the restoration process, and other relevant storylines. Most of all, we aim to never forget the human story, and the environmental and economic realities faced by the people and communities that comprise the Gulf Coast. --David Roche Public Interest Law Fellow