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Legal Experts Dissect BP Oil Spill

Steve Weissman, Elizabeth Cabraser and Dan Farber

By Andrew Cohen

At an Alumni Weekend panel entitled “Implications of the BP Oil Spill,” Berkeley Law experts outlined in harrowing detail both the scope of the disaster and its far-reaching legal and environmental impact.

Panelists included Professors Daniel Farber and David Caron ’83 and attorney Elizabeth Cabraser ’78. Farber chairs UC Berkeley’s Energy and Resources Group, directs the law school’s environmental law program, and is faculty director of the Center for Law, Energy & the Environment (CLEE); Caron is co-director of both the Miller Institute on Global Challenges and the Law and the Law of the Sea Institute; and Cabraser has served as lead, co-lead, or class counsel in more than 80 federal multi-district and state coordinated proceedings as a senior partner at Lieff Cabraser Heimann & Bernstein.

Moderated by CLEE Associate Director Steve Weissman, director of the law school’s Energy and Cleantech Program, the panel framed the disaster in historical context and explained why it presents a thicket of complex legal obstacles.

In August, Farber was asked to serve as a special consultant to a bipartisan commission that will recommend ways to prevent and mitigate the impact of offshore drilling oil spills and submit a public report to President Obama by the end of the year. 

“This commission was appointed with a broad mandate and six months is an insanely short period of time,” Farber said. “But it’s important to examine whether there was adequate legislation prior to the explosion, what happens to the oil afterward, and what are the main environmental issues involved with that.”

Weissman compared the BP spill with its two main predecessors and highlighted the difference in scale. In 1969, a spill in the Santa Barbara Channel—which led to major environmental legislation—released between 80,000 to 100,000 barrels of oil. In 1989, the Exxon Valdez spill in Prince William Sound, Alaska released about 750,000 barrels. The BP spill is estimated at 4.9 million barrels.

Speaking via videoconference from Washington, D.C., Caron said that since 1900, “technology has undermined most efforts to put legal order over the oceans and fisheries.” His PowerPoint presentation included a graph that showed a dramatic recent increase in the number of ultra-deep wells, and noted that the BP well was 5,000 feet below the sea bed.

Caron also explained the myriad problems inherent in recent comparisons between BP’s $20 billion claims fund and the September 11th Victim Compensation Fund created after 9/11. He noted that the latter had fewer claims, more claims similar to one another, and a much clearer sense of who was eligible—resulting in fewer fraudulent claims.

“In the Gulf, it’s tough to say who is close enough to the disaster to be eligible for damages,” Caron said. “The shrimper who can’t take his boat out because of the area’s fishing ban, that’s a direct impact. But what about the strip club owner in New Orleans who says his revenues are down because shrimpers no longer have the funds to go there? That’s more indirect. There’s an uncertainty about what has been lost, and the scope of that loss.”

Cabraser has had extensive leadership role experience in cases which resulted in landmark settlements, verdicts, and precedent-setting rulings—including the Exxon Valdez disaster. Currently representing shrimpers and property owners in BP-related litigation, she warned that a useful and effective macro-level outcome will be challenging given the lack of a “suitable body of environmental law.”

In discussing the civil litigation aspect of the spill, Cabraser explained that the Exxon Valdez was a “much simpler spill and lesser environmental disaster. Here you have more oil, farther offshore, deeper in the water, and multiple jurisdictions. Everything with Exxon was handled in Alaska courts. By contrast, now we have multiple defendants, defendants pointing fingers at each other, federal and state law problems, and many international companies involved. It’s at least five times more complex that the Exxon case.” 

To further underscore the level of complexity, Cabraser reiterated how the Exxon case took 20 years to settle after making its way up to the U.S. Supreme Court. During that time, many of the defendants had died and never collected any compensation.

(Photo by Jakub Mosur)