OIL SPILL LEGAL NEWS, Vol. 9, Assessing Damages to Natural Resources Caused by the Gulf Oil Spill


Oil Spill Legal News – Update No. 9, August 6, 2010   

As economic and environmental damage related to the Gulf Oil Spill begins to be evaluated, many people have questions about how the court system or BP's claim fund process will help repair the area's natural resources in order for individuals to return to work and businesses to resume operations.

This process will begin with action brought by the federal government against BP and potentially other companies involved. Although much of the damage is to private property, entities, and individuals, the spill also has damaged public natural resources. The Oil Pollution Act of 1990 (OPA), the Clean Water Act, and other federal laws, as well as some state laws, provide for various governmental entities to recover the value of these natural resources that are lost or injured as a result of an oil spill and spend the money on projects to restore or replace damaged natural resources.

Various federal and state statutes require that parties responsible for spills of oil or hazardous waste are responsible for cleaning up or paying for the cleanup of the release. In addition, the OPA and other statutes establish a mechanism to make the public whole for injuries to or lost use of natural resources that are not privately owned. This authority is based on the Public Trust Doctrine, which provides that governments hold certain natural resources in trust for the benefit of their citizens and the public good. The OPA establishes a legal process called a Natural Resource Damage Assessment (NRDA) to determine the restoration required to compensate for harm to natural resources and uses of those resources by humans.

The statutes provide for certain federal agencies, tribes, or states to serve as Trustees during the NRDA process. For the Deepwater Horizon incident, the lead Trustee is the National Oceanic and Atmospheric Administration (NOAA), the federal government natural resource trustee for coastal resources. NOAA is joined by other federal agency trustees and the states of Alabama, Florida, Louisiana, Mississippi, and Texas. During the NRDA process, the Trustees (1) determine whether public trust resources have been harmed, (2) quantify the injuries and identify restoration projects, and (3) implement restoration measures and monitor the results.

Natural resources assessed can include marine mammals, birds, turtles, fish, shellfish, and other animal life and their habitats, including the water column, bottom sediments, deepwater habitats, corals, beaches, shorelines, wetlands, and mudflats. The Trustees also assess the loss of human uses of the resources such as hunting, fishing, boating, swimming, and shoreline use. Finally, the Trustees may assess natural resource damage attributable to cleanup responses to the incident such as burning oil on the ocean surface and the use of dispersants to break up the oil.

The Trustees are working with BP during the assessment of damages to natural resources, including the exposure of natural resources to the oil, and the effect of the oil on the animal life, plant life, and human uses of the natural resources. Assessing injuries to complex ecosystems such as coastal resources often takes years, and implementation and monitoring of restoration projects can take many more years.

The money received by the Trustees for the Responsible Parties may be used to restore the area's natural resources. Whether those funds will be sufficient to expedite the recovery process remains to be seen. Undoubtedly, some areas will take longer to recover than others. Individuals and businesses who rely on these resources for their livelihood should work with the Trustees and their staffs to help ensure that the funds are used appropriately and effectively. 

For additional information on workforce issues, please contact Michael Stagg or any member of Waller's Environmental practice at 800-487-6380.

The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance.