Proving Natural Resource Damage Under OPA 90: Out with the Rebuttable Presumption, in with APA-Style Judicial Review?
Tulane Law Review, Vol. 85, No. 4, p. 1039-1074, 2011
University of Washington School of Law Research Paper No. 2011-04
37 Pages Posted: 25 Apr 2011 Last revised: 21 Aug 2011
Date Written: December 31, 2010
In the aftermath of the Deepwater Horizon oil spill of 2010, President Obama urged Congress to amend the natural resource damage provisions of the Oil Pollution Act of 1990 to replace the rebuttable presumption of validity the law presently accords to damage assessments by the designated natural resource trustees that were conducted in accordance with regulations promulgated by the National Oceanic and Atmospheric Administration with the standard of judicial review prescribed by the Administrative Procedure Act (APA). Although the House of Representatives passed such an amendment in 2010, the Senate failed to act on the amendment before the 111th congressional term ended. Nevertheless, White House and congressional support in the wake of the 2010 spill suggests that the proposal is likely to resurface in the near future. Accordingly, this Article examines the meaning and effect of the proposed substitution of APA review for the existing rebuttable presumption, potential difficulties in implementing the new standard, and whether the amendment might unconstitutionally deprive spillers of the right to a jury trial.
Keywords: Oil spill liability, natural resource damages, Deepwater Horizon
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