When the Deepwater Horizon incident occurred on April 20, 2010 at the Macondo prospect located off the Gulf of Mexico, emergency response vessels quickly headed to the rig in an attempt to contain the blowout. After Macondo, the current responder immunity policy exposed inadequate protection for responders because they were served with legal fees and ongoing litigation after attempting to clean up the spill. Plaintiffs sued the responders for personal injuries allegedly caused by exposure to spilled oil and dispersants -- which were approved by the U.S. government -- and claimed gross negligence and willful misconduct related to the responders’ actions. The US District Court for the Eastern District of Louisiana decided on February 16, 2016 to dismiss claims against the emergency response companies who assisted with the Macondo oil spill.
This development came after years of litigation and expensive legal fees, and while it's a huge breakthrough in the case, the battle isn't over yet. The court dismissed approximately 20,000 claims, but 11 remained unresolved. One case under review by Congress is the Responder Immunity Coalition (the "Coalition") that was formed to fill the immunity gaps identified by the Macondo incident. The Coalition would allow emergency response vessels to not hesitate and act quickly without fears of liability suits or other penalties.
Oil Pollution Act of 1990 (OPA 90)
OPA 90 strengthened the U.S. Environmental Protection Agency (EPA) ability to prevent and quickly respond to oil spills. The OPA requires oil storage facilities and vessels to submit plans on how they would respond to an accident to the federal government. It’s important to understand OPA 90 because Congress provided a responder immunity provision after the Exxon Valdez accident in 1989 to protect those who provide assistance after an accident, like Macondo, occurs. These cases are not proposing revisions to OPA 90; instead, an initiative is under review to represent the overall common interests of the industry through a coalition.
Similar to a Good Samaritan law but for maritime, this immunity doesn’t apply to responders who act with gross negligence or willful misconduct, or in cases that involve personal injury or wrongful death. After the Exxon Valdez accident in 1989, Congress included a responder immunity provision in OPA 90 to protect individuals and corporations who provide assistance in the event of an oil spill. During the litigation following Macondo, gaps were revealed in the immunity provision that made responders liable for their actions.
The Responder Immunity Coalition
HWCG is a current member of the Coalition, which was formed after the Macondo blowout. Their goal is to seek further legislation to fill the immunity gaps identified as a result of Macondo. The Coalition was working with Congressman Frank LoBiondo, Chairman Coast Guard, and Maritime Transportation Subcommittee of the House Transportation and Infrastructure Committee. Representatives from the all response interests and the following industries makeup the Coalition:
- Oil clean-up
- Spill management
- Offshore vessel support
- Well containment
Carl J. Barbier, United States District Judge for the Eastern District of Louisiana Judge Barbier looked into other established immunity concepts that acted under the Federal On Scene Coordinator (FOSC). He also referenced federal laws including the Clean Water Act and Federal Torts Claims Act, who gave the cleanup responders their actions. On February 16, 2010, the United States District Court for the Eastern District of Louisiana granted summary judgment in favor of the emergency response organizations involved in the 2010 Macondo recovery managed by the federal government.
Accountability for responsible party (RP) and emergency responder immunity under new coalition*
- Liable for damages, removal costs and exposure claim if found negligent under general maritime law
- Provide immunity to responders regarding exposure claims as well as maintain the current regime of responder employer liability
- Will have to pay double defense costs if adequate responder immunity is not available
- Still at risk of incurring legal fees, even if they are found not to be responsible until final court decision has been made
- Extended immunity by explicitly defining the activities covered by the new immunity
- Immunity provision will not apply if a responder acts with gross negligence or wilful misconduct
* Pending court’s final decision
Where We Are Now
HWCG and its members would like to see stronger emergency responder immunity to help protect people, property and the environment.
While the court decision in February 2016 was monumental, substantial progress still needs to be made, starting with a decision for the remaining open court cases. Important aspects regarding responder immunity still need to be defined in the event of another oil spill. Specific liability definitions for the RPs and who qualifies as an emergency responder are a few examples.
This page will continue to be updated as more information is made public.
For additional in-depth resources about responder immunity and how it impacts the industry, check out the following links:
- Inferences of Responder Immunity Ruling in Deepwater Horizon Case
- OPA 90 Responder Immunity
- Does Responder Immunity Only Benefit Responders? What No One Has Explained to You About Insurance
Continue to our Understanding the Subsea Dispersant Application page to learn more on how dispersants are being implemented into future oil spill cleanup recovery plans, as well as their major benefits.
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