Page 20: of Marine News Magazine (April 2016)

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COLUMN OP/ED

How the Political Climate Impacts

OPA 90 Responder Immunity

By Steven Candito

Many people today are frustrated with in the Deepwater Horizon suit were for personal injuries the current US political process as we en- and there were claims of gross negligence, OPA 90’s re- dure various government stalemates on sponder immunity terms never really came into play.

budgets, Supreme Court appointments, Without the bene? t of OPA 90’s responder immunity, and, of course, the Presidential election. the judge looked to other well established immunity con-

The general theme is voters are angry cepts and determined that the cleanup responders, who with the political establishment and, as acted under the orders of the Federal On Scene Coordina- a result, outsiders like Donald Trump tor (FOSC) were entitled to “derivative” immunity pursu- and Bernie Sanders are doing well in the ant to other federal laws including the Clean Water Act and

Candito polls. Much of this anger is directed at Federal Torts Claims Act, provided the cleanup respond- the in? uence big money donors and lobbyists have over the ers actions were consistent with the FOSC’s instructions. process. Thus, Trump who has committed to self-? nancing Although most of the claims were dismissed because the his campaign and Sanders, who has grassroots support hav- plaintiffs never provided even very basic information that ing sworn off Wall Street money, are both doing much better the cleanup responders did not follow the FOSC’s orders, than most would normally expect. Perhaps not surprisingly, the 11 remaining plaintiffs that provided this minimal in- we have a similar dynamic occurring with the Oil Pollution formation can still proceed with their claims.

Act of 1990’s (OPA 90) responder immunity provisions. The decision is certainly signi? cant and bene? cial in

As most in the industry are aware, immediately fol- that the court found private parties with no contractual lowing the explosion on the Deepwater Horizon in April relationship to the government are entitled to the govern- 2010, emergency response vessels rushed to the rig to save ment’s immunity, provided such actions were consistent lives and begin the lengthy process of cleaning up the en- with the government’s instructions. Very importantly, the suing oil spill. Despite these valiant efforts to mitigate the decision recognizes that private parties who work with environmental impact of the worst oil spill in U.S. his- government employees may think twice about doing so if tory and OPA 90’s responder immunity protection, these they are not afforded the same protection.

cleanup responders were “rewarded” by being sued and are It’s helpful that the court recognized this risk that respond- still entwined in complex and protracted litigation. ers may hesitate to act for fear of liability, but the decision

In a positive development on February 16, 2016, after does not solve the problem and encourage responders to act. ? ve years of litigation and millions of dollars in legal fees, While this ruling is favorable generally, it does not accom- the court dismissed most of the claims against the cleanup plish what the Coalition set out to do when cleanup respond- companies. However, the case is not over and legal fees ers’ potential liability for “exposure” to oil and dispersants continue because the ruling allows 11 claims to proceed. ? rst arose in the litigation. More speci? cally, the Coalition is

As a result, cleanup companies are still hesitant to engage continuing its effort to amend OPA 90’s responder immu- in response activities in light of this liability risk. nity provisions to exclude “exposure” claims from OPA 90’s

Previously, in an effort to minimize the chilling effect of personal injury exception. Without this type of more direct the suit’s ? ling, a group of concerned industry members protection, cleanup responders are still at risk of at least in- formed a Coalition. The Coalition has worked to develop curring substantial legal fees defending themselves, even if a legislative amendment to OPA 90 that protects respond- they are ultimately found not to be responsible.

ers, still allows injured parties to be made whole, and does Perhaps most importantly, the court decision does not not increase Responsible Party (RP) liability since they are provide suf? cient protection for cleanup responders to act already responsible under current law. immediately without considering the liability risks. This

Interestingly, the February 16, 2016 decision makes no decision is certainly better than the prior uncertainty, but reference to OPA 90’s responder immunity provisions. the ruling does not provide protection for responders that

OPA 90’s responder immunity has several exceptions for are not acting directly for the government, which is prob- claims based on actions such as gross negligence or person- ably the case in most spill responses. Even on larger re- al injury. Since the claims against the cleanup responders sponses, where the government is clearly “directing” the re-

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