The Value Of A Pelican: An Overview Of The Natural Resource Damage Assessment Under Federal And Louisiana Law
On April 20, 2010, the drilling rig Deepwater Horizon exploded while finishing an oil well located approximately fifty miles off the coast of Louisiana. When the rig sank two days later, oil began pouring into the Gulf of Mexico. The well was capped with a temporary device on July 15, 2010, and declared “effectively dead” on September 19, 2010, but states and local governments along the Gulf of Mexico will continue to see untold amounts of damage to property and natural resources as oil that is suspended in the water column or lying on the seafloor washes up on land. As of November 2, 2010, in Louisiana alone, 3,407 birds were collected dead, with 1,488 showing visible signs of oil; 134 sea turtles were collected dead, with 7 showing visible signs of oil and 108 pending oil determinations; and 62 mammals were collected dead, with 3 showing visible signs of oil. But these numbers do not capture the true impact of the Deepwater Horizon oil spill. It is impossible to get an accurate count of the birds, fish, insects, reptiles, and mammals that died and sank to the ocean floor or decomposed unseen in the marsh, or of the microscopic organisms that inhabit the range of ecosystems that were affected by the spill. Additionally, large areas of in-shore and off-shore fishing grounds were closed to both commercial and recreational fishermen, greatly reducing public access to the natural resources of the five Gulf states. After the Exxon Valdez spill in 1989, local communities in Alaska struggled with the immediate impacts of the spill—the containment and cleanup—and with the legal avenues available to recover for impacts to natural resources, both in the short and long terms. In response to this, the Oil Pollution Act of 1990 (OPA) was passed. In 1991, Louisiana passed the Louisiana Oil Spill Prevention and Response Act (LOSPRA) as a state counterpart to OPA. These two acts deal with a variety of oil spill-related issues, including recovering for damage to personal property and lost income. They also provide for federal and state governments to recover for damages to natural resources from an oil spill or the threat of an oil spill. The assessment and recovery process, known as the Natural Resource Damage Assessment (NRDA), is both time-consuming and complicated on even the smallest of scales. The process already has begun in response to the Deepwater Horizon spill and is expected to take several years to complete. The ultimate goal of the NRDA and subsequent restoration is to make whole the natural resources and the public’s loss of the use of those resources that are damaged or destroyed after a discharge of oil. This is most directly achieved by returning injured natural resources to their pre-spill condition and providing compensation to the public for the loss of use from the time of the spill through the recovery period. However, when returning the specific natural resource to its pre-spill condition cannot be accomplished for some reason, there are a variety of other methods that can be utilized to achieve the goals of the NRDA process. These methods will be discussed in more detail below. It is important to remember that OPA and LOSPRA were written in response to the Exxon Valdez spill. That is not to say that a disaster on the scale of the Deepwater Horizon was not a concern; however, what happened in Alaska was clearly on the minds of those crafting the legislation, and there are many indications of this in both laws. Because of the extent of the Deepwater Horizon spill, both in amount of oil discharged and area affected, the NRDA process will be tested in ways that were likely not contemplated during its drafting. Numerous local governments, five states, and the federal government will have to work together to achieve the goals of OPA and the corresponding individual state oil spill acts, including LOSPRA. This Article will look at the authorization for natural resource damage assessments as provided by OPA and LOSPRA and then examine in detail the NRDA process as provided by the Code of Federal Regulations and the Louisiana Administrative Code.