Saturday, June 19, 2010

Day 5: Interview with Adam Babich; Tulane Law Professor and Environmental law Expert

"Obviously it's going to keep a lot of lawyers in business for a long time" – Adam Babich

[Tulane University Stock Photo]

Scott Maier (SM): First Question: It has come to my attention that the Deepwater Horizon Oil Rig was registered not with the United States, but with the Marshall Islands; My question is: Why does the United States agree to recognize British Petroleum (BP)'s compliance with Marshall Islands, or anyone else's, safety standards as sufficient for operation in U.S. areas?

Adam Babich (AB): I think the question may contain a misconception… If you are assuming that the Marshall Islands' safety standards are the ONLY applicable standards, I don't think that's true. Basically, when you're talking about maritime law, there are overlapping statutes, treaties, international agreements, etc., and there's a long history involved, obviously, because people have been sailing the seas for a long time. There are complicated decisions which are slowly becoming more modernized [in regards] to who regulates what. Historically the idea was the entity known as the 'flag state,' where whoever registered the boat was in charge. But that's been modified through the years, and especially in terms of territorial waters [200 mile zone]. So yes we do allow ships in our waters that are registered with other states, but that doesn't mean that we are unable to regulate them at all.

SM: So it's more a matter of figuring out the specifically applicable laws and going through established channels?

AB: I'm not aware of anyone who's suggesting that the oil pollution act does not apply to this. However, whenever you get involved with a complicated legal issue, sooner or later you're going to come up with a question that the law does not squarely answer. So, do I have any doubts that BP is liable for the money that the Federal Government has to spend to the threat of an oil spill? No, I don't have any doubt, but it can get more complicated down the road. Let's say hypothetically I've got some sort of side business selling things to tourists, and not as many tourists are coming to the [gulf region] because they've heard about the oil spill. Do I get compensation from BP? [This is a] Much more complicated question, and if you can answer that one, then you can imagine a more complicated one. The basic liability scheme is pretty clear… [But] there will be gray areas, and there will be room for creative arguments.

SM: Do you think this event will be cause for new laws, or a comprehensive U.S. Maritime law that can avoid some of these gray areas in the future?

AB: I can't predict the future.

SM: Are environmental contaminants that result in chronic disease, cancers, and birth defects going to be covered by BP as a 'reasonable claim,' or will there be resistance on the part of BP to pay a claim in the years or decades after the incident?

AB: If, for example, a worker is exposed to oil, or a fisherman is exposed to oil and then immediately gets sick and goes to the hospital: it's looking like a fairly clear case. If you're talking about someone who gets cancer in ten years, well, a lot of people get cancer, and there are a lot of potential causes of cancer. Environmental contamination is certainly one of them, [but] trying to prove causation can be tricky. If I have to prove an injury, and causation, chances are I'm going to have to prove that to a jury. When we don't know how to figure out an answer [by other means], we can ask a jury. I think it's almost a guarantee that not every claim will result in a recovery. It's also impossible to know what percent of these claims may have been legitimate.

SM: If BP goes bankrupt, for whatever reason, does this process just end? Or can people and businesses sue our government or another entity for any lapses in regulation or safety, such as the well known lax behavior at the Mineral Management Service?

AB: If assets from BP are not sufficient for the recovery, things get more complicated. Obviously there are more companies potentially on the hook [for the deepwater horizon spill] than just BP. However, the government is very rarely held liable for regulatory failures [legally speaking]. The doctrine known as sovereign immunity harks from common law where 'the king could do no wrong.' So the sovereign, the government, is immune from suit, except to the extent that the sovereign consents to be sued. There are some exceptions in the law, however, such as the federal torts claims act, which says people can bring claims [on the government]. For example that's where a lot of the post-Katrina claims against the Army corps come from. But there are exceptions to this governmental consent to be sued too, and generally it is very very difficult to fit a regulatory failure into that consent.

SM: So if BP goes bankrupt, there would have to be a willingness on the part of the U.S. Government to set up a system whereby the affected residents could establish the legitimacy of their claims and be compensated justly?

AB: Well the bankruptcy system itself doesn't just 'poof' eliminate debt and liability. There are gray areas and legal arguments within that system itself, and what other recourse might be available? I mean, if we are faced with that situation, presumably, we are going to deal with that and figure it out, but there is no single answer to that question. [As for the victims] we don't know what the government would do. For the government to spend money, usually that takes congressional action, signed by the president. You just don't know what's going to happen. When people are damaged, normally you don't go to the federal government for your compensation; you go to the court system. Now, under the oil pollution act there are provisions for federal money to go to some types of people,[ but general claims court is where the majority would go]. The case of the terrorist attacks on 9/11 exemplifies an instance where the government will actually decide to come up with a fund to compensate victims, but that's not something that happens as a matter of course.

SM: Businesses and individuals are making claims based on anywhere from three to ten years' worth of past employment and earnings records; my question is what can individual day laborers, and tip earning workers do as recourse without the historical data to support their claim?

AB: I have not reviewed the claims procedure as to how they are planning to deal with that, but there are a lot of possibilities to try to deal with it, which includes testimony.

SM: So even just based on your word you could attempt to go through the correct channels and have your claim paid?

AB: I'm not aware of the specifics of whatever claims procedures these guys may be using, but there is not a general principle in law that says you must have 'X' number of receipts or pay stubs in order to prove lost income.

SM: What do you think about the non disclosure agreements that BP is using with its vessels of opportunity that it hires to be working either with cleanup or as host to animal rescue teams, or researchers?

AB: In general, I have never been involved in a case where media or citizen access to the particular site of the contamination was legally important. You can imagine a situation where it would be important though, in the case of a telling photograph or words caught on tape. In terms of the contract itself, there have been quite a few reports about contracts, and some provisions have sounded abusive, and stupid, and I think some people have brought cases and gotten some relief about those things.

SM: Is denying access to the spill for media and citizens just BP covering itself as best as possible in order to not be set up for later legal battles, or is it safety based?

AB: It's always difficult to characterize somebody else's motivations.  I would imagine that the genesis of provisions like this is to make sure that you don't have injuries and liability for people who do not need to be there. On the other hand, once you start adding provisions, you might add a provision or two to keep access strictly limited [for other reasons].

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