Canary in a Coal Mine: What we Haven't Learned From Deepwater Horizon and How Courts Can Help

Abstract

Ten years ago this April, four million barrels of oil spewed from BP’s Macondo well into the Gulf of Mexico. Eleven men died and dozens more were wounded in the blowout. Thousands of animals were oiled and killed and the coastlines of five Gulf States were marred with thick crude. A review of the last ten years suggests that we have not learned our lesson about the dangers of deepwater drilling: safety regulations written in response to Deepwater Horizon have been rolled back and the Trump Administration plans to massively expand drilling in U.S. waters. In the absence of an effective regulatory framework, this Article demonstrates that the unambiguous purpose of Clean Water Act Section 311 requires courts to use the Act’s punitive tools to prevent another Deepwater incident.

While others have written extensively about the Deepwater spill and the regulations that came after it, no one has provided a primer for amplifying Section 311’s control over the offshore industry. This Article examines the decade since Deepwater and the diverse textual, historical and interpretative support courts should employ to maximize the deterrent impact of Section 311 liability and penalties. In sum, it provides an essential component of environmental protection at a time when other safeguards are absent.

Keywords: Clean Water Act, Oil Pollution Act, Deepwater Drilling, Deepwater Horizon, CWA, OPA, Oil, negligence, duty of care, Section 311, environmental law, environment, rollbacks