By:  LINDSEY O’NEILL, ESQ.

In the wake of the worst oil spill in history… nobody can seem to figure out how to stop it or clean it up.  President Obama recently said in a press conference that he’s stepping up the government’s involvement:  ”I take responsibility. It is my job to make sure that everything is done to shut this down.”  While those affected by the oil spill are probably more hopeful this whole mess will actually get cleaned up, some are wondering where this clean up commitment comes from since the President initially reported BP would be responsible for it. 

While an oil company is legally responsible to clean up a spill under the Oil Pollution Act and Clean Water Act,  if they fail or if the spill causes a substantial threat to the public or the environment, then the law appears to  mandate the President get involved in accordance with his National Contingency Plan for removal of the oil. 

This federal authority was put in place when the OPA amended section 311 of the Clean Water Act to clarify the federal government’s authority and responsibility after an oil spill.   Before the OPA, the law sort of deferred clean-up efforts to the oil company who caused the spill.  But the OPA mandated the President take action to ensure “effective and immediate removal of a discharge, and mitigation or prevention of a substantial threat of a discharge, of oil or a hazardous substance.” 

33 USC § 1321(c)(1)(A) provides: 

The President shall, in accordance with the National Contingency Plan and any appropriate Area Contingency Plan, ensure effective and immediate removal of a discharge, and mitigation or prevention of a substantial threat of a discharge, of oil…

Section 1321(c)(1)(B) discusses specifically what the President may do to carry out the responsibility for an oil clean-up, providing in part: 

In carrying out this paragraph, the President may–
         (i) remove or arrange for the removal of a discharge, and mitigate or prevent a substantial threat of a discharge, at any time;
         (ii) direct or monitor all Federal, State, and private actions to remove a discharge; and
         (iii) remove and, if necessary, destroy a vessel discharging, or threatening to discharge, by whatever means are available.

Furthermore, if the discharge of oil from an oil spill is determined to be a “substantial threat to public health or welfare,” then the President must take action to either remove it or mitigate it.  Section 1321(c)(2)(A) provides:

If a discharge, or a substantial threat of a discharge, of oil or a hazardous substance from a vessel, offshore facility, or onshore facility is of such a size or character as to be a substantial threat to the public health or welfare of the United States (including but not limited to fish, shellfish, wildlife, other natural resources, and the public and private beaches and shorelines of the United States), the President shall direct all Federal, State, and private actions to remove the discharge or to mitigate or prevent the threat of the discharge.

 We’ll see what happens next.  The Whitehouse website lists all the things the various government agencies have been doing in connection with the National Contingency Plan to respond to the Gulf oil spill, namely: 

The morning after the explosion, Secretary of the Interior deployed Deputy Secretary David J. Hayes to the Gulf Coast to assist with coordination and response to the event, and provide hourly reports back to the administration. Since then, DOI has played a vital role in overseeing BP’s response efforts while—at the President’s request—working to deliver a report with recommendations on what, if any, additional safety measures should be required for offshore operations. Secretary Salazar has announced that inspections of all deepwater rigs and platforms are underway.  (See:  http://www.whitehouse.gov/deepwater-bp-oil-spill/)

For more information about the Gulf Oil Spill and injured persons rights to compensation for their losses, visit LawInfo’s Gulf Oil Spill Lawsuits resource center.