Gulf Damage and the Environmental Claims Process – One Call Won’t Do it All

With the BP Deepwater Horizon Oil Disaster finally capped and clean-up winding down, long-term restoration of the Gulf Coast’s stained and vulnerable marshes, beaches, fisheries, and other natural resources hinges on an often-obscure legal process and how proactive and inclusive federal and state governments will be in wielding the power of that process.Under the Oil Pollution Act (33 U.S.C. 2701 et seq.) (OPA), restoring oil-damaged natural resources and the public’s commercial, recreational, cultural, and other use of those resources is done by conducting a Natural Resource Damage Assessment (NRDA)[1]. NRDA is a multi-phased, years-long process that: (1) assesses damage to impacted natural resources; (2) monetizes that damage and the public’s deprived used; (3) secures a negotiated sum from Responsible Parties based on that estimate, (4) and develops projects funded by the settlement that are intended to, as nearly as possible, return natural resources to pre-spill conditions (known as “baseline”) and compensate the public for lost use from the day of the spill until the moment that NRDA-administering agencies declare final “recovery.In essence, NRDA is the “claims process” for the environment.By law, NRDA is a team sport – at least at the outset – helmed by a collective referred to as Natural Resource Trustees. In this instance, in addition to BP, Trustees include the lead federal agency, National Oceanic and Atmospheric Administration; and U.S. Fish and Wildlife, National Parks Service, Bureau of Land Management, and Bureau of Indian Affairs; along with agencies from Louisiana, Mississippi, Alabama, Florida, and Texas. Louisiana is represented by its lead trustee, the Coastal Protection and Restoration Authority; as well as the Louisiana Oil Spill Commission, Department of Natural Resources, Department of Wildlife and Fisheries, and Department of Environmental Quality.Impacted Native American tribes have the right to become trustees under OPA. Local governments can also become trustees, but if so appointed by the Governor. Non-governmental organizations are not typically named trustees but there is precedent for such designations in other “NRDA’s”. More common, local governments and non-governmental organizations have been formally engaged in other NRDA processes through the creation of advisory councils, as was done in the aftermath of the Exxon Valdez oil spill.To date, formal roles for local government or citizen groups have not been established in carrying out the Deepwater Horizon NRDA process. Nonetheless, OPA requires meaningful public review and comment when Trustees finish their damage assessment and when proposed restoration projects are hatched. The public should closely monitor the unfolding NRDA process and help ensure its meaningful involvement by seeking assurances from Trustees as to the timing, depth, and consistency of citizen participation.Looking ahead, ultimate success under NRDA is defined as “the restoration, rehabilitation, replacement, or acquisition of equivalent natural resources and/or services.”[2] In this, Trustees have already commenced the process for evaluating the scope of damage to the region’s natural resources caused by the oil spill and the lost public use of those resources.For the past several months, indeed since almost immediately after the spill, NRDA Trustee members started developing “Preassessment Workplans”[3] as part of the first phase of NRDA. Working Groups, established among Trustee entities are establishing the scope of NRDA’s reach by assembling spill data that will characterize the human uses, habitats, natural resources, habitats, wildlife, and other natural resources that existed before the oil spill and information on impacts occurring to these uses and resources because of the spill, clean-up response, and other impacts, including the use of dispersants.Within the frame of this pre- and post-spill snapshot of impacted uses and resources, Trustees are now beginning NRDA’s second phase – Injury Assessments and Planning – in which the extent, severity, and duration of impacts from the spill and related action are being evaluated, followed by money estimates of that impact. Not surprisingly, BP is performing its own injury assessment separate from its Trustee brethren. These separate assessments remain under a common Trustee banner but there will ultimately come a moment when either a single damage amount is established amicably or “NRDA goes to court”.For the public, monitoring these initial phases is crucial. Eventual projects aimed at restoring damaged natural resources and public use will only include those that fit within the scope of what Trustees established as the scope of the injury. In short, if Trustees do not view something as a problem caused or exacerbated by the oil spill, then NRDA will not address it.Equally important, the public must be effective partners in NRDA’s final phase, Restoration Planning, during which restoration projects and other means of compensation are developed and implemented. In NRDA parlance, there are two types of restoration actions: (1) primary restoration, aimed at returning injured natural resources to baseline; and (2) compensatory restoration, which enhances or improves lost or diminished natural resource uses or services, such as commercial fishing, hunting, beach recreation, and even municipal services and natural biological cycles that are public benefitting and derived from impacted natural resources.[4]In crafting restoration projects and compensation, in addition to ensuring consistency with what was characterized as the “injury,” Trustees are bound to consider time and cost in executing a project, the ability of a project to address multiple injured natural resources or lost services; the likelihood of success, and the extent to which the project will prevent future injury as a result of the incident.[5]Through this lens, understandably, much attention will be trained on primary restoration projects aimed at wetland, beach, fishery, habitat, and wildlife restoration. In this, NRDA should be applied with a broad view for how the oil spill exacerbated existing problems; triggering projects that do not merely reestablish a compromised “baseline” but rather help create a more sustainable condition.Just as important, projects aimed at achieving compensatory restoration should enable improved natural resource services that are, themselves, more sustainable and beneficial to Gulf Coast communities. For example, this approach could include projects or programs that help improve public access to natural resources, incentivize more sustainable fishing practices, spur innovative municipal systems using impacted natural resources, and enhance wetland nutrient and larval-cycles that are critical to the Gulf Region’s continued economic and environmental vitality.Simply put, properly wielded with a proactive and inclusive approach, NRDA should be a valuable funding source and framework for projects that jump-start coastal wetland restoration, sustainable fisheries, and habitat and wildlife protection that many have promised – and many more hope for – as the recovery achieved from the devastating BP Deepwater Horizon Oil Disaster.Jeffrey J. Thomas, J.D. is the head of Thomas Strategies, and an accomplished legal and policy analyst. He was formerly with the City of New Orleans office of Recovery.Above photo: Oil washing ashore Oct. 1, 2010 (cc) Gulf Restoration Network. The photo can be used for non-commerical uses with attribution to Gulf Restoration Network.[1] For more information about the NRDA process, please see:[2] OPA, 33 U.S.C. 2706(d).[3] See i.e.,[4] 15 CFR 990.30; 990.53.[5] See, 15 CFR 990.27; 15 CFR 990.51(b); 15 CFR 990.52; 43 CFR 11.13(e); 43 CFR 11.14(tt) ; and 43 CFR 11.14(ll)

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