A Look At The 1990 Oil Pollution Act

A 1990 law called the Oil Pollution Act set out the penalties for corporations that spill oil into the environment, but how exactly it will apply to the BP spill in the Gulf of Mexico is unclear. Melissa Block talks with environmental law professor Zygmund Plater, who was chairman of Alaska's oil spill commission legal research task force after the Exxon Valdez wreck. The task force recommendations went to Congress as it drafted the 1990 law.

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MELISSA BLOCK, Host:

The law governing the cleanup of the BP oil spill is the Oil Pollution Act of 1990, or OPA 90, as it's known. It was enacted by Congress in response to the Exxon Valdez disaster the year before. President Obama has said that law needs to be updated, that it's not adequate for a crisis of this magnitude. Well, what would that mean?

We're going to put that question to environmental law professor Zygmunt Plater. He was chairman of Alaska's oil spill commission legal research task force after the Exxon Valdez wreck. And their recommendations went to Congress as they drafted that law. Zygmunt Plater, welcome to the program.

P: Thank you very much.

BLOCK: Do you agree with President Obama that that law, OPA 90, did no envisage a disaster of this magnitude that we're seeing now?

P: Yeah, there's never been anything this big. We did know, however, that there was the possibility for mega-catastrophes - the Exxon Valdez was a mega-catastrophe. And we had hoped that our recommendations and OPA 90 would forestall it happening again.

BLOCK: And you're thinking that that did not work in this case. What went wrong, do you think, in the regulations, in the law?

P: Well, OPA 90 was heavily lobbied, so only parts of what should have been in there from our recommendations and otherwise, ever got into the statute. And in implementation over the 20 years, what we had seen in Alaska - which we characterized as complacency, collusion and neglect - continued to dilute what there was in the law so that over the past decades, what could have been wasn't vigilance and the results were predictable. We feel very frustrated looking at this.

BLOCK: What's an example of that dilution that you're talking about?

P: Well, one of the recommendations was that there had to be careful contingency planning before the fact, so that there would be command control centers, where the state and federal officials would know what they had to do to respond and the company clearly knew that it had to obey the command center. That clearly isn't taking place on the Gulf, and it's in part because the OPA 90 provisions were not insisted upon.

BLOCK: Is what you're saying that the provisions are actually in the law, they're just not being followed?

P: Well, I guess what I'm saying is that the statute provided a basis in many areas if there had been rigorous implementation. But there wasn't.

BLOCK: In some reading about the Oil Pollution Act, it does seem to address mostly spills from vessels or tankers, like you saw of course with the Exxon Valdez. I wonder if a rig explosion in deepwater, such as we've seen now, was not really foreseen when Congress wrote OPA 90.

P: Well, there'd been an Ixtoc blowout in the Bay of Campeche in Gulf of Mexico 10 years before Exxon Valdez, so we knew about it. But it's true, it's focused on spills rather than blowouts. And overlooking blowouts turns out to be a very, very bad idea.

BLOCK: Well, as Congress thinks about this Oil Pollution Act and what might be redrawn with it, what would your advice be? What needs to be either strengthened or added?

P: Well, one of our recommendations was put into OPA 90 but only for Alaskan waters. And that is setting up citizen oversight councils, so that no matter how much collusion or complacency there was between the industry and the agencies, there would be a council made up of fishermen, of local communities, of the people who could be harmed or killed by catastrophes, to make sure that the operation was running as safely as it could. And to make sure that if there was an accident - and of course there always is a risk - the response would be practical, meaningful and effective.

But without that third entity, nothing happens. And, of course, the lobbyists kept that out except for Alaska waters. I am convinced that a council of fishermen in local communities would never have allowed such deepwater drilling without consideration of blowouts, without consideration of the worst cases because of course, worst cases happen.

BLOCK: Isn't that though the job of the regulators? Why would they need a citizen's council to do that?

P: Well, the political scientists talk about agency capture, or the fact that when you have a dipolar system - industry and then regulatory agency - over time, they become if not collusive, too comfortable. You need to have not just a dipolar system, in political science terms, but you need to have a multi-centric institution so that you have people who are not bought in to the inside industry or agency's perspective but the ones who represent the fishermen, the communities and also the environment that's going to be hurt if complacency, collusion and neglect are allowed.

BLOCK: Zygmunt Plater, thank you very much.

P: Thank you very much, Melissa.

BLOCK: Zygmunt Plater is professor of law at Boston College Law School. He specializes in environmental protection.

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