Professors address oil spill at ACS event
There may be no use crying over spilled milk, but spilled oil is something the government should be concerned about.
Better government regulation in industries affecting the environment, such as the oil industry, was one of the topics addressed at “The 2010 Gulf Oil Spill: A case study in the need for forceful government regulation,” an informational forum held by The American Constitution Society for Law and Policy, Levin College of Law Student Chapter, and GreenLAW. Students were given the chance to ask questions of the presenters.
Prof. Alyson Flournoy, director of the environment and land use law program and Prof. Jon Mills, dean emeritus and director of the Center for Governmental Responsibility, served as speakers for the event.
The forum included an analysis of current government policies and their regulatory failures, a discussion of the complexity of the laws dictating who will be compensated for damages from the oil spill and a presentation of possible policy reforms.
“We saw this [event] as an opportunity to explore an issue a lot of people were interested in, and give an analysis [of the oil spill] that people haven’t heard already,” said Henry Perlstein, 3L and president of the UF student chapter of The American Constitution Society for Law and Policy. “[We're] putting it in a bigger context.”
Flournoy and Mills took two different approaches to painting a bigger picture of the legal ramifications of the government policies in place.
Flournoy presented findings from a forthcoming report from the Center for Progressive Reform that she and about 12 other law professors from all over the country recently worked on, in a presentation called “The BP Deepwater Horizon Disaster: A Case Study in Regulatory Failure.” The presentation focused on regulatory failures that put public health, safety and the environment at risk in the implementation of the Outer Continental Shelf Lands Act (OCSLA), National Environmental Policy Act (NEPA), Endangered Species Act (ESA) and Occupational Safety and Health Act (OSHA).
Some of the regulatory failures under the OCSLA are inadequate standards for safety and environmental protection in operations and spill response, inadequate environmental review processes and inadequate penalties and performance bonds. Under NEPA, regulatory failures included failure to plan for the worst-case scenario, shortcuts through categorical exclusions and inappropriate tiering; and under the ESA, ignoring low probability risks of catastrophic harm to listed species and failure to aggregate low probability risks were identified as problems.
Beyond addressing these problems, proposed reforms mentioned in Flournoy’s presentation included providing adequate funding to perform necessary regulatory functions and to hire, train and retain competent staff; implementing new ethics standards; ending the revolving door and creating a culture that supports the agency’s regulatory mission.
Flournoy’s personal reform suggestions include better government regulation and more funding to enable relevant government agencies to adequately protect health, safety and the environment. After the event, Perlstein said he thinks big reform requires an attitude shift that focuses on protecting people, and not just growth in the industry, to permeate legislation and other action by politicians.
Mills focused on the complexity of determining who was going to get what aid and how much of it they were going to get. He talked about the affected, which includes fishermen, seafood distributors, restaurant owners, beach hotels and others.
“I have been seeking clarity and certainty and I have found very little,” Mills said.
According to Mills, some provisions of the applicable laws are vague and will depend on terpretations by the courts. For example, under the Oil Pollution Act, Mills said that there is compensation provided for the damaged natural resources, but compensation for economic damages to private parties depends on specific facts. The law also varies in the four states that are affected by the oil spill; Alabama, Florida, Louisiana and Mississippi. So under state law, a Florida hotel owner may have different remedies from a hotel owner in Alabama or Louisiana.
“There is no doubt that the current legal structure and remedies will be inadequate for a significant number of people who have been harmed,” he said.
Given the importance of the aftermath of the spill to Florida’s economy, the presenters mentioned what UF and Levin, specifically, are doing to help the state in the wake of the oil spill.
In June, the College created a law school working group with Mills as the head and Flournoy serving as a member, among other faculty members. The working group also includes six law students working on various research projects, such as an analysis of tort remedies available for damaged parties and an evaluation of the process being administered by Kenneth Feinberg, manager of the $20 billion BP Gulf disaster compensation fund. The working group is hosting an oil spill symposium at 4 p.m. on Sept. 16 in the Martin H. Levin Legal Advocacy Center. The six students – Alyssa Cameron, James Davies, Carli Koshal, M. Austin Moretz, Fay Pappas, Jesse Reiblich – will each present their research findings to a faculty panel that will raise questions and provide critiques.
Students interested in being a part of the working group should contact Mills.
But for students who may not have the chance to do research with the working group, there are still ways to get involved with oil spill remedies.
“People could explore and ask questions, and stay informed,” Perlstein said. “They themselves can be advocates for change. You don’t have to be a senator to influence policy. You can be an average person and influence people around you by informing them,” he said.
“It’s like the saying goes,” Perlstein said, “you can either help a lot of people a little bit or help a small amount of people a lot.”