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Gulf Lessons

Oil spill a teaching point for state’s environmental lawyers

By DOUGLAS S. MALAN

The unmitigated disaster created by the oil spill in the Gulf of Mexico elicits a lot of reaction from people.

Anger over water and land pollution. Sympathy for people, such as fishermen, whose livelihoods are tied to the Gulf of Mexico. And worry about the long-term impact of the spill on energy policies and the environment.

For Connecticut attorneys practicing environmental law, there are some learning experiences to be taken from the event and the way British Petroleum has handled it.

“One thing this teaches you is that the best engineering minds don’t necessarily know what’s going to happen when there’s a total catastrophe,” said Lee D. Hoffman, an environmental law partner at Pullman & Comley in Hartford.

And Connecticut may have more than just a casual interest in the spill in the future. Attorney General Richard Blumenthal indicated to BP officials in late June that he and attorneys general from 10 other Atlantic coast states are vigilant about monitoring the impact of the spill on their states and preparing for possible litigation.

“Even without oil actually reaching the Connecticut shoreline, this massive oil spill could still impose damages and destruction to the entire Atlantic coastline,” Blumenthal said in a prepared statement. He mentioned that wildlife in Connecticut, for instance, could be affected by sickened birds that migrate from the polluted Gulf region.

Environmental attorneys say it wouldn’t take much evidence to enable the state to file claims against BP for fouling waters here. The U.S. Coast Guard responds to all oil spills on the water, and their investigations are triggered by anything that “causes a film or sheen” on the water, as outlined by the federal Clean Water Act.

“The threshold is incredibly small and the Coast Guard will investigate even just a few ounces of oil because they take their responsibilities seriously,” Hoffman said. “Could [the spill] impact Connecticut? Yes. We don’t know where the oil slick is going to go.”

Hoffman also raised the possibility of a hurricane coming through the Gulf region that picks up oily water that rains down over wide areas of the country.

States that find BP’s spilled oil within their borders and on their coastlines would then be able to sue the company for damages based on the destruction of natural resources, as specified in the federal Oil Pollution Act. Natural resource damages are difficult to calculate because value has to be placed on a bird or an area of land as a natural resource.

Overall, BP is facing natural resource damages “in the hundreds of millions, if not billions, of dollars,” Hoffman said. “Congress has recognized that there is intrinsic value to the public in natural resources.”

And those damages are separate from what would be paid out for property damage or lost profits as a result of the spill’s effect on Gulf states.

Closer Look

As a result of the spill, more energy companies are taking a closer look at their emergency response processes to determine if they adequately address disasters, said Mark R. Sussman, the chair of Murtha Cullina’s environmental practice group.

“One of the problems we sometimes have is convincing clients to spend time and money on planning for potential catastrophic events when they believe there’s a remote chance of them happening,” Sussman said. The oil spill in the Gulf “is a graphic example of what can happen to a company if an environmental disaster occurs that they haven’t planned for.”

Oil spills on the water seem to be a fairly rare occurrence in Connecticut; more spills are the result of accidents involving trucks transporting fuel on highways, according to the National Response Center. That organization is the country’s primary contact point for reporting oil spills.

In 2003, a tank barge carrying more than 2 million gallons of fuel oil ran aground in the Long Island Sound near Norwalk and leaked more than 2,000 gallons of oil into the water. Most of that oil was recovered, according to reports, and there were no reports of tar balls or oiled or injured wildlife.

In the New England area, some of the larger spills include 20,000 gallons of home heating oil that leaked into Rhode Island’s Block Island Sound when a tanker barge caught fire and ran aground in 1996. And in 1976, a tanker dumped 183,000 barrels of fuel oil into Buzzards Bay, Mass., near Nantucket Island.

Another learning point from the Gulf spill for attorneys is advising clients what they should be discussing publicly during such a crisis.

Earl W. Phillips Jr., who chairs Robinson & Cole’s environmental and utilities practice group out of the Hartford office, has been on the frontlines of a variety of oil and chemical spills for clients throughout the country. When a high-profile spill happens, “you end up with a refocus on emergency response and incident response, and the other piece is the importance of risk communication,” he said.

Phillips is a veteran of serving as spokesman for the companies going through an environmental emergency. “You could do a fairly good law school or public relations course with what BP has done,” he said. “There’s a lot to learn from that.”

The most critical part is communicating only the information that is known at the time and relaying that information accurately. When company officials are pressured to provide answers to government officials or the media, there’s an urge to look like the company is in control and that can lead to bad information being communicated, Phillips said.

“The playbook [on crisis communications] is not hard to write, but the discipline it takes to execute it is difficult,” he said. “It requires a level of control in the moment when everything seems out of control.”

Bigger Picture

Timothy S. Hollister, an environmental law partner at Shipman & Goodwin in Hartford, said the major questions emerging from the Gulf spill are much larger than emergency response, though.

Technology that allows drilling at extreme depths in the ocean floor has outpaced the ability to find fixes when something goes wrong, as evidenced by BP’s inability to shut off the flow of oil, Hollister said.

“You can draft all sorts of redundancies in a contingency plan but if you can’t get to the leaking pipe, it doesn’t matter,” he said. “Do we allow drilling activities when the technological fixes are at best problematic and likely impossible?”

Hoffman, the environmental attorney at Pullman & Comley, said he expects Connecticut to become even more aggressive about protecting Long Island Sound in light of the Gulf disaster.

Over the years, Attorney General Blumenthal has fought hard against certain projects in the Sound, including proposals to embed gas lines and power cables in the ocean floor and to establish a liquid natural gas facility in the middle of the Sound.

Hoffman said the state “will take an even stronger stance to protect marine resources because you only get one shot and you could ruin it forever.” •