Beyond the Oil Spill, the Tragedy of an Ailing Gulf

Even in the worst days of the BP spill, coastal advocates were looking past the immediate emergency to what the president’s oil spill commission called “the central question from the recovery of the spill — can or should such a major pollution event steer political energy, human resources and funding into solutions for a continuing systemic tragedy?”

That tragedy is the ill and declining health of the Gulf of Mexico, including the enormous dead zone off the mouth of the Mississippi and the alarmingly rapid disappearance of Louisiana’s coastal wetlands, roughly 2,000 square miles smaller than they were 80 years ago. Few here would take issue with the commission’s question, but the answer to it is far from resolved.

Eclipsed by the spill’s uncertain environmental impact is the other fallout: the vast sums in penalties and fines BP will have to pay to the federal government. In addition to criminal fines and restitution, BP is facing civil liabilities that fall roughly into two categories: Clean Water Act penalties and claims from the Natural Resource Damage Assessment process, whereby state and federal agencies tally the damage caused by the spill and put a price tag on it. This could add up to billions, perhaps tens of billions, of dollars.

On Thursday morning, the Justice Department announced that an agreement had been announced between BP and the trustees who are part of the natural resources damage assessment for BP to provide a $1 billion down payment for early restoration projects, the largest of its kind ever reached. This would be taken out of any final settlement, but would allow any agreed upon projects to get under way.

BP is not the only company involved with the Deepwater Horizon accident that could be on the hook for these damages. In a sign of the bitter legal fight brewing among defendants, BP on Wednesday sued the maker of the blowout preventer, a valve on the oil rig that failed, and the owner of the oil rig, arguing that their negligence led to the spill.

But for people along the gulf, the issue of who pays the damages is less important than will they get paid.

Officials and coastal advocates all along the coast agree that the money could be an enormous boon for the gulf, as it would be impossible to obtain money like that through the normal political channels. But that is the only agreement.

Negotiations are under way among the area’s Congressional delegation on a bill that would follow the presidential commission’s recommendation in allocating four-fifths of BP’s Clean Water Act penalties — which could range from $5.4 billion to $21 billion — on the Gulf Coast. Without separate legislation, the money would go into the Oil Spill Liability Trust Fund to help pay to clean up future spills; once that fund reaches $2.7 billion, the rest would go into the Treasury.

But while such bills have been proposed in the House and Senate, gulfwide support of any one bill remains elusive. Disagreement remains among gulf state legislators over basics like how the money would be split and what it could be spent on. Among the concerns are how much leeway states would have to fund projects not related to ecosystem restoration — Alabama officials, for example, have broadcast a desire to build a convention center — and whether the money would be shared equally among the states or allocated based on the spill’s environmental impact, in which case Louisiana would get a much larger piece.

A deal among the gulf state delegation, of course, does not ensure the bill’s passage through Congress, particularly given the pall of austerity that has descended on Washington. Donald Boesch, a marine science professor at the University of Maryland who was on the presidential oil spill commission, said the political concessions necessary to a gulfwide agreement, like the flexibility to spend the money on economic projects, could deter lawmakers from other states, who would be hesitant to allow money to go to projects that are not directly tied to spill recovery.

Some lawmakers, Professor Boesch said, have also been given pause by the relentless criticism from Louisiana’s political leaders of the Obama administration’s post-spill regulations. Arguing that the new rules have jeopardized the state’s drilling-dependent economy, Louisiana lawmakers have recently championed bills in the House of Representatives that would speed up and possibly bypass federal reviews of offshore drilling leases.

“To many it seems what they’re asking for is to get back to the way they were operating before, without recognizing that things have changed,” Professor Boesch said in an interview. “You’re not willing to take steps to protect the environment, so why are you to be believed that you can take steps to restore the environment?”

If the political route fails, there is Plan B: the federal authorities could direct some money toward restoration as part of an eventual settlement.

“If no new legislation is passed,” David M. Uhlmann, an expert in environmental law at the University of Michigan, wrote in an e-mail message, “the Justice Department is likely to negotiate for a large natural resource damage claim, perhaps even at the expense of civil penalties, and may try to obtain additional funds for restoration efforts as part of any criminal plea agreement or civil consent decree.”

This could please environmentalists, as natural resource damage claims are required by law to be spent on restoration, and it could also make BP happier, as the payment of such claims have tax advantages and simply sound better than penalties.

Thursday's announcement that BP would be paying a large sum for early restoration could be a sign of this strategy.

But, Professor Uhlmann added, “far more would go to restoration if Congress takes action.”

Like all else in this spill, the natural resources damage assessment, while scientifically driven, is not untouched by politics. A plan of action requires some agreement among the various players, which has thus far been in short supply.

And if the money is worked out, said Oliver Houck, a professor at Tulane Law School who specializes in environmental law, there is still no consensus among scientists and officials on how best to fix the gulf’s most pressing problems.

“Even if all the other dominoes fall right, and none of them are falling right, you’re left with what to do with that big money,” he said. Speaking of Louisiana’s wetlands loss, he pointed out that the damage was more extensive and the solutions more limited than many acknowledge.

“We may be better off using this money to assist people to relocate people and move out,” Professor Houck said, “and let natural healing take place.”

 

BP Sues Two Companies Over Oil Spill

BP has already paid billions of dollars in the massive Gulf of Mexico oil spill. On Wednesday, it filed court papers in hopes that those billions of dollars, and more to come, will not be paid out of its pockets alone.

The oil giant filed suits in New Orleans against Transocean, the owner of the Deepwater Horizon rig, and against Cameron International, the company that made the blowout preventer that failed last year, on the deadline for bringing suits in the federal litigation surrounding the disaster.

The company said in a statement that the move was “to ensure that all parties involved in the Macondo well are appropriately held accountable.”

The claims against Transocean, BP said, “are consistent with the conclusions reached by the presidential commission, which found that Transocean missed critical signs that hydrocarbons were flowing up the riser and failed to take appropriate actions to shut in the Macondo well.”

Cameron, BP asserted, designed and built a faulty preventer and negligently maintained it.

Transocean responded with a statement calling BP’s suit “specious and unconscionable” and laid the blame squarely on BP as operator. Transocean and Cameron filed similar cross claims and counterclaims on Wednesday.

A spokeswoman for Cameron, Rhonda Barnat, said in an e-mailed statement, “It is not surprising that the companies are filing to protect their indemnity rights.”

 

A Year After the Deepwater Horizon Oil Spill, a Perfect Day for a Redfish

 

In fact, there was not much of anything — no oyster boats, no shrimp boats, no other anglers. Just the occasional kingfisher perched on a branch, seabirds diving for bait and intermittent splashes that indicate big redfish.

Redfish, or red drum, are not widely known as a sport fish outside of the Gulf Coast. (Because of the chef Paul Prudhomme, they were once more likely to be encountered blackened on a plate than on the end of your line.)

The fish’s name is somewhat misleading, as redfish tend toward an iridescent gray, with a coppery patina on the back and upper sides; their most distinguishing characteristic are black spots near the base of the tail. Redfish have many commendable traits for fly-fishers — they are plentiful, they often frequent shallow water close to shore, they are tenacious fighters, and they are very willing to take a fly.

“I like to call them user-friendly,” Arnold said.

The Biloxi Marsh encompasses hundreds of miles of shallow water along Louisiana’s northeastern shoreline. In the heat of summer, algae blooms hamper visibility, making fishing difficult. But in cooler months, the water is clear enough to spot cruising redfish from a Caribbean-style flats skiff. The fall and winter also bring the big bull reds (longer than 27 inches) close to shore. Some of these exceed 50 pounds.

“The bull reds come in near the marshes to spawn in the fall,” Arnold said. “As the weather cools, they stay, as the shallow water is warmer. Warmer water also attracts forage — baitfish, crabs and shrimp.

“Before I came upon these fish around the Biloxi Marsh in the mid ’90s, a 12-pound redfish was considered a good catch on the fly. Now we regularly find reds over 30 pounds.”

A small oil derrick a mile to the south hummed in the background as we entered a lakelike opening in the marsh. In water less than two feet deep, reds 20 pounds or more rooted around in the mud, their backs occasionally breaking the surface.

Surmising that the fish were eating crabs, Arnold tied on a crab pattern called a Hailey’s Comet. He instructed me to focus drop the fly in front of a specific fish and retrieve it with short, steady strips. Standing on the mesh-encircled casting platform, I spooked several fish with casts that were too long, and missed other fish with shots that were too far left or right. After a few miscues, I hooked and lost one fish, then landed a modest 15-pounder.

We poled around in a circle as fish disappeared and materialized around us. My casting improved, and several reds near 25 pounds came to the net before the fish stopped feeding.

We motored for 10 minutes toward one of Arnold’s favorite spots, which he called the Land of Giants. Several International Game Fish Association world records have come from this stretch, roughly a dozen football fields long and one football field wide. As we came in sight of the Land of Giants, two bottlenose dolphins appeared before us. They were soon joined by others, and the pod circled our skiff.

“The dolphins can really help the fishing,” Arnold said. “When they’re in the deeper water off the marsh, the reds sometimes will stay in the shallows.”

Whether it was the presence of the dolphins or the abundance of feed in the shallows, a remarkable three hours soon unfolded. As Arnold poled the skiff slowly across the shallows, thousands of bull reds presented themselves in wave after wave.

There was a flash of two or three white bellies here, stirred-up mud there, and when the sun was right, a full-on silhouette of three- or four-foot-long redfish swimming by the boat. Eventually, a larger fish appeared about 90 feet off the bow. The fishing gods smiled, and I dropped a cast a few feet in front of the fish and stripped. The fish’s gills flared — a sign of its excitement — and it accelerated, mouth open. Line ripped from my reel, the rod bent wildly, and 15 minutes later, I was posing with a bull red whose weight Arnold estimated at 38 pounds.

What does this day of angling — one that Arnold declared the best he had seen in 10 years — say about the aftermath of the spill?

He said: “I think that the reason fishing has been great is related to the spill. First, many of the species that make up the marine ecosystem here have had an entire spawning period to reproduce and grow without being harvested, thanks to commercial fishing moratoriums. That puts more bait in the water, which supports more and bigger fish.

“I also believe that redfish habitat in other parts of the Gulf of Mexico has been damaged, and that some of the displaced fish have come here. I have not personally seen any oil residue around these marshes, but I can’t say it’s not there. We just don’t know for sure. One thing that’s certain; the long-term effects of the spill have not played out.”