Legal Remedies for Deep Marine Oil Spills and Long-Term Ecological Resilience: A Match Made in Hell

Abstract

The Deepwater Horizon oil spill that lasted from April to September 2010 was not only the worst oil spill disaster in United States history but also the first to occur at great depth. Drilling at depth multiplies the risks and complications of offshore oil extraction. It also, as this Article explores, makes natural resource damages a decisively inadequate remedy for the damages done to the Gulf of Mexico’s ecosystems, especially the poorly understood but highly productive ecosystems that exist almost a mile below the surface. This Article argues that our current natural resource damages regimes for oil spills depend too heavily on an assumption that ocean areas like the Gulf are stably resilient, able to absorb and recover from an incessant series of environmental insults, ranging from widespread loss of wetlands to nutrient pollution and a dead zone to overfishing to continual releases of oil. By acknowledging that disasters like the Deepwater Horizon oil spill could push ecosystems across regime-shifting thresholds into new states, resilience thinking better captures the inherent and unavoidable risks that exploitative activities in the Gulf actually pose to the socio-ecological systems that depend on its continued productive functioning. As a result, resilience thinking can also suggest new and more comprehensive ways of thinking about oil spill liability that might bring about the reformations in offshore oil drilling regulation that many commentators seek.

Keywords: Deepwater Horizon, BP, Oil Spill, Oil Pollution Act, OPA, Clean Water Act, Resilience, Resilience Thinking