Big problems

The questions it has raised in the legal world are still flowing freely almost two months after the well was declared dead Sept. 19. The media has largely moved on to other issues, but there is a long road ahead as legal experts assess local, state and federal laws, review previous disasters, evaluate the claims process, and mitigate the effects of – and hopefully prevent – future catastrophes.

At the University of Florida Fredric G. Levin College of Law, experts have formed the UF Law Oil Spill Working Group to assist in working through the numerous legal issues that have arisen since the spill.

“The mission of the law working group is to intensively evaluate and scrutinize the existing law that relates to oil spills,” said Jon Mills (JD 72), UF Law dean emeritus and head of the Oil Spill Working Group. “That would be evaluation of existing admiralty, federal, state laws and cases.”

“The laws are complex and overlapping. It’s not going to be easy to sort out,” said Mills, who also is director of UF Law’s Center for Governmental Responsibility.

The 1989 Exxon Valdez oil spill in Alaska, the resulting federal Oil Spill Pollution Act of 1990 (OPA) and Florida statute 376 – Pollutant Discharge Prevention and Removal – are a few of the areas the group is focusing on to better grasp the current situation in Florida. But history and law offer limited guidance because of the unique circumstances of the Gulf spill.

“In Alaska there is one state involved and here there are four states. Here the damages are larger, considerably different and involve much more tourism,” Mills said.

And while many federal statutes focus on resource damage to wildlife and marine life, a big question that remains unanswered by previous legislation is remuneration for economic loss in a place like Florida. Some places in the Florida Panhandle had oil on the beaches, but Mills said many communities that did not see oil on their shores still suffered an economic loss due to the outside perception of the impact the oil spill had on the Gulf.

Mills offers this hypothetical scenario to illustrate the situation: If a hotel owner in Panama City Beach, which never had oil on the beach, still loses business over a period of years because of the perception of the Gulf Coast beaches, are those losses recoverable?

It’s still too early to know, Mills said. There are a lot of questions remaining about how the claims process will play out.

Kenneth Feinberg, the U.S. government administrator of BP’s $20 billion compensation fund, has yet to offer concrete guidelines for eligibility, but has expressed the possibility of giving more consideration to those who were not directly impacted by the spill.

For the residents of Bay County – where Panama City Beach is located – that could be good news. Although areas further west saw oiled shores, the amount of oil on Bay County beaches was negligible.

But Bay County’s tourism industry has taken a hit. County Attorney Terrell Arline (JD 80) said there was about a 15 percent downturn in Bay County tourism revenue between April, when the oil began flowing, and Labor Day weekend. The county recently filed a claim with BP for lost tourist tax revenues. And like Mills, he is also concerned with the effect of perception.

“Every time you see a BP ad on television they talk about the spill in the Gulf, three or four nights a week on every one of the channels,” Arline said. “That’s not helping the economy. We met with a BP representative a couple of days ago and said ‘Can’t you have an ad for Washington, D.C., or Connecticut or the Northeast that talks about damage in Louisiana or the Mississippi coast instead of the Florida coast?’”

But Arline said he remains optimistic and believes the perception issue will eventually fade as people’s thoughts and attention shift to other issues.

“It’s not going to wipe out the tourism industry in Florida,” he said.

On the ground

While the UF Law group was coming together to assess previous and current laws to assist with the spill, Florida’s Panhandle was preparing for the worst, trying to make existing laws work in its favor and ultimately just trying to get through the day.

“It was unprecedented. There wasn’t a playbook for this,” Arline said.

But because of Florida’s long history of dealing with the impacts of hurricanes, the state has become really good at responding to emergencies, he said. And because of their familiarity with the Federal Emergency Management Agency’s (FEMA) process, it was equipped to handle the potential disaster in a more efficient manner than some other places.

“We reused the FEMA process to submit our claims. We didn’t send them to FEMA, but used the FEMA protocols, the FEMA forms, the FEMA system,” Arline said.

Unlike the claims process for individuals, which are subject to Feinberg’s scrutiny, government claims are submitted directly to BP.

Arline said Bay County was limited to following the guidelines established under the Oil Pollution Act in certain situations, and that law operates on a top-down approach. He said the law’s procedures didn’t work as well for the Gulf spill, which required more immediate action. But when the county was able to employ the FEMA approach, things progressed much more efficiently.

“The Emergency Management process is designed to be bottom-up, so the first responders are the people on the ground in the communities. They’re getting stuff done, and then they submit the bills,” he said. “We spent a tremendous amount of time trying to get approvals to do things that we felt were essential for our community because that’s the way the federal process was set up, and that just took too damn long.”

A little further west in Escambia County – one of the Florida counties that saw the most oil – County Attorney Alison Rogers (JD 94) was also working out the best way to handle the rapidly changing situation, providing legal advice to the County Commission and its staff.

“When the oil spill first appeared to be posing a threat to our coastline we instituted a state of local emergency. We activated our emergency operations center to provide for a unified communications center so that everyone involved in the response would be under one roof to exchange thoughts and ideas,” Rogers said.

She helped dole out legal advice on a wide range of issues including environmental considerations, procuring supplies, filing claims and looking carefully at state and federal laws.

“The Oil Pollution Act and the state version of that (Florida statute 376) absolutely have been the guideposts of what we have been relying on,” she said.

Like so many communities along the Gulf Coast, Escambia County is still working through the effects of the spill and still waiting to see how things will play out.

“A lot of these issues are still unfolding,” Rogers said.

Many of the legal issues are going to be linked to the kind of damages the county suffers, and a lot of those damages have yet to be seen.

The county has claims pending with BP, and it is continuing to submit claims on a monthly basis, she said.

“The biggest remaining legal issue is going to have to do with property valuations,” Rogers said. Properties in Escambia County cannot be appraised until Jan. 1, “so we do not know at this point how much or whether property values are going to be affected by this, and if so, how much is attributable to the oil spill,” she said.

While the economic forecast is still uncertain, Rogers said she is optimistic that next year’s tourist season will be something to look forward to. And adding to that sense of optimism is the fact that the environmental outlook appears to be hopeful. But she said the county continues to find buried oil on beaches, and the waterways are being monitored for leftover oil as well.

Large disasters like the Gulf spill can also contribute to what some social scientists have called “corrosive communities,” said Joan Flocks (JD 91), director of the Social Policy Division of the Center for Governmental Responsibility and a member of the UF Law Oil Spill Working Group.

Flocks describes a corrosive community as one in which individuals are “very affected by the loss of their livelihoods and all the things that are related to that: mental illnesses, depression, family breakups, financial issues and all sorts of anxiety.” These stressors can eventually lead to the breakdown of individuals and communities.

“There are some ethnic communities that have been greatly impacted by the Gulf spill because of their reliance on fishing,” Flocks said. “We know there are populations there that are probably experiencing a lot of disproportional stress related to the decline of the fishing and related industries.”

Flocks said her research is still in the preliminary stages, but there have already been reports of higher depression rates in affected Gulf Coast communities and at least one suicide reported as a casualty from the spill.

Scholars have researched the longterm effects the Alaskan oil spill had on communities and lessons learned from these studies may be used to minimize detrimental effects on communities in the Gulf, she said.

One of her team’s main goals is to find ways the legal process can work better to make communities whole again by thinking outside the box and avoiding missteps that occurred in previous disaster situations.

Looking back, looking forward, looking up

While it has been established that much of the blame for the oil spill lies with BP, a confluence of laws, industries and organizations all had some role in allowing the oil spill to occur, said Alyson Flournoy, a UF Law professor and member of the UF Law Oil Spill Working Group.

“Overall, when you step back from the disaster, what emerges is a series of decisions: policy decisions, decisions by industry, decisions by agencies implementing policy – all of which balanced away the protection of health, human life and the environment against costs measured very narrowly,” said Flournoy, who is director of UF Law’s Environmental and Land Use Law Program.

Flournoy coordinated, edited and contributed to a study released by the Center for Progressive Reform, “Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Prevent a Recurrence.” Along with 12 other scholars, Flournoy was able to examine the disaster on a federal level, looking at the combination of legislation and regulations – or lack thereof – that contributed to the spill. The report gave special attention to the Outer Continental Shelf Lands Act, the former Minerals Management Service (MMS) and the newly named Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), which took the place of MMS.

Many of the needed government reforms have to do with prioritizing safety, health and environmental protection, which Flournoy said have previously garnered too little attention from the oil and gas drilling industry.

Flournoy said a recent report issued by the Outer Continental Shelf Safety Oversight Board, based in part on a survey of BOEMRE employees, shows movement in the right direction and provides a “finer grain resolution on some of the problems, as well as a better understanding of some of the cultural problems within the agency.”

Like many who are studying the problem, Flournoy professes cautious optimism about the legal community’s ability to solve the problems laid bare by the Gulf catastrophe. “There are positive signs, but the real question is what kind of follow-through there will be now that the well has been sealed,” she said. “And given the fact that much of the oil is settled on the bottom of the ocean, literally out of sight and out of mind, the pressure to move resources and attention elsewhere is
inevitable.”