Wyman, Julia B.

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Blowout: Legal Legacy of the Deepwater Horizon Catastrophe:Should Penguins Really Have to Wear Sweaters?

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Roger Williams University Law ReviewVolume 17 | Issue 1 Article 12Winter 2012Blowout: Legal Legacy of the Deepwater HorizonCatastrophe:Should Penguins Really Have to WearSweaters?Julia B. WymanRoger Williams University School of Law Marine Affairs InstituteFollow this and additional works at: http://docs.rwu.edu/rwu_LRThis Article is brought to you for free and open access by the Journals at DOCS@RWU. It has been accepted for inclusion in Roger Williams UniversityLaw Review by an authorized administrator of DOCS@RWU. For more information, please contact mwu@rwu.edu.Recommended CitationWyman, Julia B. (2012) "Blowout: Legal Legacy of the Deepwater Horizon Catastrophe:Should Penguins Really Have to WearSweaters? ," Roger Williams University Law Review: Vol. 17: Iss. 1, Article 12.Available at: http://docs.rwu.edu/rwu_LR/vol17/iss1/12Should Penguins Really Have to WearSweaters?Julia B. Wyman*When written in Chinese, the word "crisis" is composed of twocharacters - one represents danger and one representsopportunity.- John F. KennedyOn October 5, 2011, the 236-meter-long, Liberian- flaggedcontainer ship Rena ran aground on the Astrolabe reef,approximately twelve nautical miles off Tauranga, New Zealand.2Onboard the vessel were almost 2000 metric tons of oil.3 As ofmid-October 2011, approximately 350 metric tons of oil had spilledfrom the Rena into the Bay of Plenty.4 Throughout the month ofOctober, crews worked to pump the remaining fuel off of the* Staff attorney at the Marine Affairs Institute. The Marine Affairs Instituteis a partnership of the Roger Williams University School of Law, RhodeIsland Sea Grant, and University of Rhode Island.1. Senator John F. Kennedy, Remarks at the Convocation of the UnitedNegro College Fund (Apr. 12, 1959), available at http://wwwjfklibrary.org/Research/Ready-Reference/JFK-Speeches/Remarks-at-the-Convocation-of-the-United-Negro-College-Fund-Indianapolis-Indiana-April-12-1959.aspx.2. Anne Barrowclough, Oil Spill Threatening NZ coast, AUSTRALLAN,October 8, 2011, at 12, available at http://www.theaustralian.com.aulnews/world/oil-spill-threatening-nz-coast/story-e6frg6so-1226161572365; NewZealand oil spill 'worst maritime disaster', THE INDEPENDENT (LONDON) (Oct.11, 2011), available at http://www.independent.co.uk/news/world/australasia/new-zealand-oil-spill-worst-maritime-disaster-2368989.html.3. New Zealand Oil Ship Leak 'raises questions', BBC NEWS (Oct. 9,2011, 5:27 ET), http://www.bbc.co.uk/news/world-asia-pacific-15230941.4. Paul Harper, et al., Rena: Race to Pump Oil from 'dying ship', NZHERALD (Oct. 17, 2011, 2:17 PM), available at http://www.nzherald.co.nz/nz/news/article.cfm?cid=1&objectid=10759676.2582012] SHOULD PENGUINS HAVE TO WEAR SWEATERS? 259fractured vessel onto relief ships, racing against the Rena fallingoff the reef and spilling the remaining oil into the sea.5 Even withefforts to remove the remaining oil, the grounding of Rena was oneof the worst environmental disasters that New Zealand faced indecades.6 Similarly, about a year and a half before the Rena ranaground, the Gulf coast of the United States faced a tragicenvironmental disaster of its own when the offshore oil-drilling rigDeepwater Horizon had an explosion that caused an estimated 4.9million barrels of oil to spill into the Gulf of Mexico.7 Both eventswere environmental tragedies, yet both received relatively littlepublicity considering the seriousness of their environmentalimpacts. What are some of the impacts a nation is faced withduring such an environmental catastrophe? How can a nationeasily forget an event that is deemed a "most significant ...environmental disaster," and why should countries take thesedisasters and turn them into opportunities? 8First, there are immediate environmental and societalconsequences to these events. Often, these immediateconsequences are publicized. In New Zealand, clumps of heavy oilstarted to wash up on the beaches of Mt. Maunganui andPapamoa within a week of the Rena grounding.9 The Taurangaport and beaches in Maketu south of the spill were expected to seeoil onshore soon after. 10 During a time of year where one of thecountry's top tourist destinations is usually getting ready for anonslaught of visitors, the beaches were instead closed completelyor prohibited swimming.11  Residents of coastal towns were5. Id.6. Oil Spill Disaster New Zealand's 'worst in decades, BBC NEWS (Oct.11, 2011, 7:12 ET), http://www.bbc.co.uk/news/world-asia-pacific-15251319.Prior to the Rena grounding, New Zealand faced a 400-ton oil spill in 1998when a Korean fishing boat ran aground in Stewart Island. Lucy Craymer &Rebecca Howard, High Waves Off New Zealand Hamper Oil Cleanup, WALLST. J. (Oct. 12, 2011), http://online.wsj.com/article/SB10001424052970203499704576623932273893932.html.7. See John M. Broder, Obama Marks Anniversary of BP Disaster, N.Y.TIMES (Apr. 20, 2011, 1:27 PM), http://green.blogs.nytimes.com/2011/04/20/obama-marks-anniversary-of-bp-disaster/.8. Oil Spill Disaster New Zealand's 'worst in decades', supra note 6.9. Id.10. Id.11. See New Zealand Oil Ship Leak 'raises questions', supra note 3.260 ROGER WILLIAMS UNIVERSITYLAW REVIEW [Vol. 17:258warmed not to touch dead wildlife that washed ashore.12 Coastalcommunities were also told not to collect or eat shellfish from theregion.13 Health officials warned that the thick, gooey substancethat was washing onshore could cause skin rashes and respiratoryissues from breathing in the fumes.14  While officials warnedpeople to stay off the beaches, the wildlife did not have the optionto avoid the harmful oil.As of November 4, 2011, Maritime New Zealand, the country'sofficial organization in charge of developing and monitoringmaritime safety rules and marine protection,15 reported 407 sickand injured wildlife from the Rena grounding under the care of alocal wildlife center. Of that wildlife, 336 were cleaned little bluepenguins.16 Additionally, of the 1500 rare New Zealand dotterelsin existence, 100 of which reside in the Bay of Plenty area, theWildlife Centre preemptively caught and held sixty. 17 As ofNovember 6, 2011, Maritime New Zealand reported 1844 deadoiled birds recovered after the oil spill.18Immediately following the Rena grounding, 140 NationalOiled Wildlife Response Team (NOWRT) personnel, "includingveterinarians, expert responders and ornithologists withexperience in the capture and treatment of oiled birds," begancleaning and rehabilitating the captured wildlife in specialized12. Harper, et al., supra note 4.13. Id.14. Paul Harper, et al., Rena Spill: 'Tomorrow much worse', NZ HERALD(Oct. 11, 2011, 7:50 PM), http://www.nzherald.co.nz/nz/news/article.cfm?cid=1& objectid=10758195.15. Maritime New Zealand was originally titled the Maritime SafetyAuthority. Maritime New Zealand is governed by an independent Boardappointed by the Governor General on the recommendation of the Minister ofTransport. The five-member Authority directs the overall Maritime NewZealand strategy and appoints the Director of Maritime New Zealand. TheDirector manages the organization and has independent statutory powersunder the Maritime Transport Act 1994. See About Maritime New Zealand,MARITIME N.Z., http://www.maritimenz.govt.nz/About-us/About-Maritime-New-Zealand.asp (last visited Dec. 13, 2011).16. Tauranga Incident Page, MARITIME N.Z., http://www.maritimenz.govt.nz/Incident/wildlife.asp (last updated Nov. 6, 2011). The remainingwildlife were: five oiled little blue penguins, one clean fluttering shearwater,and three pied shags. Id.17. See id. The New Zealand dotterels are endangered shorebirds andare usually found on sandy beaches and sandspits or feeding on tidalestuaries.18. Id.2012] SHOULD PENGUINS HAVE TO WEAR SWEATERS? 261cleaning centers. 19 In the cleaning centers, NOWRT personnelwashed each bird for approximately forty minutes to remove theoil. 20 The wildlife was then transported to the wildlife center,where it remains until its habitats are safe enough for its return.2 'During the immediate aftermath of the oil spill, a local yarn store"put out a request for knitters" to knit "penguin jumpers" to placeon the penguins that had yet to be cleaned to keep them warm andto stop them from ingesting the oil coating their bodies. 22 Whilethe quick response of the NOWRT was crucial in saving much ofthe wildlife, what is happening to the world when penguins haveto wear sweaters to survive?Second, there are financial consequences to theseenvironmental disasters, including the costs of cleaning up all ofthe oil on the beach, cleaning up the wildlife, lost tourism, lostincome from seafood sales, and more. As of mid-October, theestimated costs of cleaning up the Rena spill were at $4 millionand were expected to exceed the $12.1 million liability coveredunder the Maritime Transport Act.23 And those are justquantifiable costs. Who ultimately pays for those costs?Third, there are legal consequences to these events. As ofmid-October Rena's captain and second officer in charge of thenavigational watch were charged with "operating a vessel in amanner causing unnecessary danger or risk"2 4 and dischargingharmful substances from the ship.25 Additionally, the owners ofthe Rena could face charges within the next six months.26 These19. Id. The cleaning centers "are housed in ... standard shippingcontainer[s], [and] can be transported by road, rail or sea to deal with wildlifeduring an oil spill. Id.20. Id.21. Id.22. Penguins Get Sweaters to Protect Them from New Zealand Oil Spill,HUFFINGTON POST (Oct. 21, 2011, 3:00 PM), http://www.huffingtonpost.com/2011/10/21/new-zealand-penguins-oil-sweaters_n_1022661.html. TheWildlife Centre in Tauranga received plenty of penguin sweaters and stoppedseeking donations. Id.23. Harper, et al., supra note 4.24. Jaime Morton, Rena's Owners Court Face Charges, NZ HERALD (Nov.2, 2011, 11:25 AM), http://www.nzherald.co.nz/nz/news/article.cfm?cid=1&objectid=10763267. The skipper and second officer were charged undersection 65 of the Maritime Transport Act. Id.25. Id. These charges were brought under the Resource ManagementAct. Id.26. See id. According to recent reports, prosecutors are investigating262 ROGER WILLIAMS UNIVERSITYLAW REVIEW [Vol. 17:258legal consequences are also often publicized. It is an opportunityfor officials and the public to place blame. It is an opportunity tomake the guilty actors pay for the quantifiable costs associatedwith these actions. After the Deepwater Horizon catastrophe,President Obama created a national commission to investigate the"relevant facts and circumstances concerning the root causes ofthe Deepwater Horizon oil disaster."27  To learn from events,officials must understand what caused those events and learn howto cope with them in the future to minimize impact, or better yet,to avoid them in the future. But what happens when the lessonsare not learned?Fourth, there are long-term consequences to these events. Itis these long-term consequences that often are not publicized.They are often the unquantifiable costs. What happens next yearwhen tar balls are still washing up on the beaches in Maketu?What happens when the tourists that could not vacation inPapamoa this year do not go next year because they have foundanother vacation spot? What happens when baby seals startwashing up dead on the beaches? Long-term consequencesrequire long-term solutions. As the uses of our oceans expand, sotoo do the risks we place on one of our most valuable resources.Calamities such as the Deepwater Horizon catastrophe and theRena grounding should force countries to take a step back and re-evaluate the environmental protections that are currently in placeand change those that are no longer effective. Indeed,environmental disasters have often generated new protective lawsin this country. 28  With these tragedies should come greatopportunities.But are opportunities being seized? There is a greatwhether to charge the owners for not only the deaths of over 1400 birds, butthe pollution of tens of kilometers of beaches, and "[iun fact, it would beremiss given that it is New Zealand's worst maritime environmental disasterif there was not a prosecution under [the Resource Management Act]." Id.27. NAT'L COMM'N ON THE BP DEEPWATER HoRIZoN OIL SPILL & OFFSHOREDRILLING, CHIEF COUNSEL'S REPORT, ix (2011), available at http://www.oilspillcommission.gov/sites/default/files/documents/C21462-408_CCRfor-web_0.pdf.28. For example, the Oil Pollution Act was signed into law in 1990following public concern following the Exxon Valdez oil spill. Oil PollutionAct Overview, U.S. ENVTL. PROTECTION AGENCY, http://www.epa.gov/oem/content/lawsregs/opaover.htm (last visited Dec. 12, 2011).2012]SHOULD PENGUINS HAVE TO WEAR SWEATERS? 263opportunity for the public not to forget. To remind public officialsthat the people care about what is happening to our oceans andcoasts. To remind public officials that the even when the Renahas been successfully removed from the Astrolabe reef, theimpacts of its oil release will still be felt. Likewise, there isopportunity for residents of the United States to remind publicofficials that the nation's livelihood is derived from the oceans andcoasts, and incidents like the Deepwater Horizon threaten notonly the environment, but also the economy and social structure ofthe United States. 29  The opportunity does not end with thepublic. The governments have the opportunity to strengthenexisting laws and create new ones that protect our most vitalresources-our environmental resources. We likely cannot changethat decades from now the last two years will be remembered as atime of great danger for our oceans and coasts; however, we havethe opportunity to make the next few years be remembered as atime of great commitment to our oceans and coasts.29. See, e.g., KRISTEN M. CROSSETT ET AL., NAT'L OCEANIC ANDATMOSPHERIC ADMINISTRATION, POPULATION TRENDS ALONG THE COASTALUNITED STATES: 1980-2008, available at http://oceanservice.noaa.gov/programs/mb/pdfs/coastalpoptrendsscomplete.pdf (last visited Dec. 12,2011).

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Blowout: Legal Legacy of the Deepwater Horizon Catastrophe:Should Penguins Really Have to Wear Sweaters?

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