The cleanup of the oil spill off the coast of Huntington Beach earlier this month is essentially complete, but responsibility for the spill of up to 131,000 gallons has yet to be assigned. In the coming months, and possibly years, it will be the legal system that determines liability — and damages.

Michael Robinson-Dorn, a clinical professor of law, co-associate dean for experiential education at the law school and director of UCI’s Environmental Law Clinic, joins the UCI Podcast to discuss how this spill compares to past ones, why simply shutting down offshore drilling is more challenging than it may seem and how society’s values will shape the future of oil drilling in California.

In this episode:

Michael Robinson-Dorn, clinical professor of law, co-associate dean of experiential education at UCI Law and director of UCI’s Environmental Law Clinic

UCI Environmental Law Clinic, a clinic in which UCI Law students represent clients on environmental litigation and policy

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Transcript

AARON ORLOWSKI, HOST

Up to 131,000 gallons of oil spilled into ocean waters in Orange County earlier this month, and lawmakers are now calling for greater oversight and, potentially, an end to offshore drilling in California. Before that happens, though, damages and liability will be assessed through the court system. Who might be held responsible for this oil spill? And what can we learn from past spills to help prevent future ones?

From the University of California, Irvine, I’m Aaron Orlowski. And you’re listening to the UCI Podcast. Today, I’m speaking with Michael Robinson-Dorn, a clinical professor of law, co-associate dean of experiential education and director of the Environmental Law Clinic at UCI.

Professor Robinson-Dorn, thank you for joining me today on the UCI Podcast.

MICHAEL ROBINSON-DORN

Oh, thanks, Aaron. Very good to be with you. Though, I can’t say that the reason that brings us together is very good at all.

ORLOWSKI

It’s really not. This spill has been a huge tragedy off the coast of Huntington Beach. So what do we know so far about what happened to cause this oil spill?

ROBINSON-DORN

Yeah, I’m really glad you phrased it that way, “so far.” The investigation into that question, “What caused the spill?” is very much still underway and the information that we’re receiving continues to change. But as of Friday (Oct. 8, 2021), the Coast Guard is reporting that the leading theory is an anchor strike. The Coast Guard spokesman is going so far as to say that he was highly confident that it was an anchor strike from a large ship. That was the initial event that caused the spill. Apparently the pipeline itself is in fairly shallow water and it was struck by an anchor, or that’s at least the theory, so hard that the outer cement casing was taken off of the pipeline. And so when the dive teams went down, they’ve seen a 13-inch gash, you know, a lateral gash in the pipeline. And that’s the pipeline that connects the platform in federal waters all the way to Long Beach.

And again, this is early days, but it appears that a 4,000-foot or so section of the pipeline had been dragged into a near semi-circle, or what they’re saying is like a bow shape, moving the pipeline in that area as much as 150 feet from its original position. So that’s the theory, but it’s unclear whether it was the movement that caused the rupture or the gash, whether it was another strike that potentially did that, or whether it just set things in motion so that some other condition or event led to the spill. And there are pretty significant questions that need to be answered about who knew what, when did they know it, who should have known, and what did they do once they learned more about the spill? Did that failure to report have any exacerbation of the spill itself?

ORLOWSKI

But when we’re talking about a large anchor, this is not an anchor from your recreational sailboat. When we’re discussing a large anchor, this might’ve been an anchor from a ship, a cargo ship, that would go to the Port of Long Beach, for instance.

ROBINSON-DORN

Yes, that’s right. And that seems to be, as I say, the leading theory. For anyone who’s been out in Huntington Beach, Newport Beach, all the way down into Long Beach anytime in the last many months, you can see all of those large container ships lined up and the anchors on those ships are enormous.

ORLOWSKI

Well, so we don’t know yet whose fault this is or who we can blame, even though that’s probably the question that we’re all hoping we could answer. And as you noted, it’s going to take an investigation to uncover this information and it will come out at some point. And maybe even lawsuits will begin to assign responsibility for this spill. From your experience and what we know, what are the possibilities for who might be held responsible for this? Who are sort of the relevant parties that could be held responsible?

ROBINSON-DORN

You hit the nail on the head, which is we don’t know yet enough. But if it was, say, a ship’s anchor, then we’d need to know what were the circumstances that led to the ship being anchored over that pipeline. As I understand it, those pipelines are both marked on the maps and the ships are directed into various, if you want us to call them, “parking spots.” So did it anchor in the right place? If not, why not? If there was a second strike, what were the circumstances there? So you have questions that have to do with the ship itself and how it wound up over that pipeline. If maintenance or condition of the pipeline becomes an issue, whether or not the pipeline was buried, whether it was on the surface. What did the pipeline operator know? When did they know that the pipeline was leaking? Well, and those could raise questions about the liability of the pipeline operator. Was there sufficient monitoring? Did the monitors work? But these are all questions that are very much unanswered. When we get those answers, as you say, then liability and responsibility will be assigned.

ORLOWSKI

Well, maybe it’d be interesting for us to look a little bit more at some major oil spills in the past, to compare them to this current spill and see how liability was assigned in those cases. So I guess first of all, the most memorable spills probably for a lot of us are the big ones. Exxon Valez in 1989, Deepwater Horizon in 2010, Santa Barbara, going back to 1969, and even the American Trader spill, which was just in 1990 off the coast of Huntington Beach. So how did those spills compare to this current one?

ROBINSON-DORN

Well that’s where, Aaron, we might have a little bit of good news, or at least some better news. At this point, the Coast Guard has revised its estimates of the amount of oil spilled to be between 24,000 gallons and 131,000 gallons. Not to minimize that, but for example, you mentioned the 1969 Santa Barbara blowout. And that was about 3 million gallons released. The Exxon Valdez, when the oil tanker ran aground on Bligh Reef in Prince William Sound, that was 11 million gallons released into a very different ecosystem, of course, a very difficult ecosystem to get any cleanup. And then the 2010 Deepwater Horizon in the Gulf of Mexico, there we’re talking about more than 100 million gallons before it was contained. That was something on the order of 86 or 87 days to get that under control. So, while it’s not just the volume or amount of oil that spilled, and it matters about the timing and the location of the spill, of course, all indications are that this is a significantly less damaging event, at least so far. We’ll have to see you don’t know all of the harms. And as we talked about earlier, there’s still a lot to be learned, but it does seem that this spill is less harmful.

You know, maybe the spill that that’s the closest analogy would be the one in 2015 up at Refugio Beach, just northwest, ironically, of Santa Barbara. Because there you had a corroded pipeline at about a little over 400,000 gallons that made its way from that underground pipeline inland into the coastal area. Still pretty significant harm. So again, not to minimize the impacts that we’re seeing here and the harm to businesses and to people’s property and so forth. But maybe we can take a little bit from this on the good side.

ORLOWSKI

Yeah. That is a small piece of good news that at least it was not a huge blowout. So in those cases who was held liable? And did the liability there set any precedents for future oil spills and leaks into ocean waters?

ROBINSON-DORN

So the Santa Barbara oil spill, or the blowout, I suppose “liability” might not be quite the right term, but “responsibility” for sure. Union Oil and other companies ultimately agreed to pay some pretty significant settlements. I think they were about the largest of their kind to that date. Nearly $10 million to private third parties, hotels, recreational facilities; over $1 million dollars to harmed fishing interests. So that was a very significant settlement. And the state and county also received close to $10 million. The Exxon Valdez — that’s Exxon. Exxon was found liable. They paid $2 billion in cleanup costs, $1 billion in natural resource damages, roughly. Third party claims, punitive damages that were litigated for nearly a dozen years that ultimately the Supreme Court reduced to $500 million. Plus another $500 million in interest.

Liability certainly has been assigned and attached and we’ve seen big changes come from it. Coming out of the Exxon Valdez, we had the passage of the Oil Pollution Act. From the BP spill (Deepwater Horizon), the numbers are just extraordinarily larger. But recall that 11 people died in that and more were injured. And the environmental degradation was on a scale that we just haven’t seen in this country. And so there, you had literally thousands of cases, hundreds of thousands of complainants. BP pled guilty to criminal charges, paid extraordinary sums in penalties, something on the order of $69 billion, when you add up various settlements. There were also other defendants who also I believe wound up paying, Transocean, Halliburton, but the numbers are quite extraordinary. And even the smaller spill up at Refugio Beach, again civil fines were paid and criminal charges for the operator Plains All American Pipeline.

ORLOWSKI

And then with this latest spill, the one just earlier this month in Huntington, there have been at least two lawsuits filed seeking damages for the harm from the spill. So can you tell us: What are those lawsuits, and who’s filing them?

ROBINSON-DORN

So I haven’t had a lot of time to review the lawsuits themselves, but from what I can see from the reporting — and I did have a chance to look at one of the complaints — it looks like these are early class actions. So actions filed — one in federal court — in which the assertions are being made on behalf of business owners and fishermen, and those who have lost income and expect to be losing income. There are assertions related to potential health impacts and the like. But I would expect that this is just the beginning of many, many more lawsuits to come, the nature of which will depend on the facts as we learn them.

ORLOWSKI

Well, you talked a bit about the huge consequences that oil companies suffered from these major spills in decades past. How did the law evolve after those spills and what relevance does that hold for today’s spill?

ROBINSON-DORN

The spills that you pointed to are iconic in that manner. The Santa Barbara spill in 1969, both by virtue of the fact of where it was located, that it was on TV, it really captured the nation’s attention. You’re seeing birds and mammals covered in oil each night. And it’s also at the same time that you have the nascent environmental movement going. So it really was a spark that helped to push forward that environmental agenda that ultimately we see coming together in the very early 70s, and whether that’s the establishment of Environmental Protection Agency, the passage of the National Environmental Policy Act, the so-called Magna Carta of environmental laws. And at the state level too, you know, you have the moratorium essentially on any new offshore drilling and state waters since 1969. You have the push for the California Environmental Quality Act. And then just a couple of years later the initiative that led to the Coastal Commission.

These are the sorts of sparks — and you don’t know quite how it will play out. In the late 60s, you also had Senator Gaylord Nelson and his staffer Denis Hayes who were moved by what was taking place in Santa Barbara and, and of course, across the country. And that led to, ultimately, the first Earth Day. If we look beyond 1969 and all the way up to the Exxon Valdez, I think you saw an enormous change in law. Prior to the Exxon Valdez oil spill, there was no one coordinated law that you could look at at the federal level — acomprehensive law — to address oil pollution. And after the spill, Congress passed the Oil Pollution Act of 1990, and what they did is consolidate the laws under a single program. They expanded the liability provisions of the Clean Water Act, had new provisions related to oil spill prevention and response. And what we see some evidence of certainly out here in Orange County, the development of a unified command structure headed by the Coast Guard, so that that response could be quick and hopefully effective.

ORLOWSKI

So as the Coast Guard has been responding to this oil spill, who have they needed to coordinate with and have they been doing so?

ROBINSON-DORN

The Coast Guard leads the response under the Oil Pollution Act, but they do need to be coordinating with the state. And in particular, the natural resource agencies, at the federal and state level, the state governor. And hopefully they are also coordinating with and consulting with Native American tribes, and in California the California tribes. I haven’t seen any reports of that and I’m not saying it isn’t happening, but I very much hope that it is.

ORLOWSKI

Well, you mentioned — I mean, these are tons of new laws and reforms that emerged after these spills. And one that you mentioned was this ban on new oil drilling in state waters after the Santa Barbara spill. But we still have these giant oil platforms in coastal waters, plus the ones that are in federal waters. So how come we’re still drilling off the coast of California?

ROBINSON-DORN

Having moved here just a little over a decade ago, it was one of the more shocking things I remember seeing flying into Southern California, because I had of course thought of Santa Barbara as marking this moment that that was the end of offshore drilling in Southern California. And to see those platforms out there and realize that they’re still operating. The short answer is that the lessees have the right to continue to operate their platforms and their extraction on the leases that they have held for, now, decades. So we’re not talking about new drilling permits, necessarily, but what we’re talking about is the continuation of the existing permits, and the right to continue to do that. And while there are certainly calls for decommissioning, those are still operating, at least for some of them, at a profit. And so what you would be talking about is potential takings claims.

ORLOWSKI

A takings claim, where if the government compels these companies to shut down, then the companies can claim that the government has taken their property.

ROBINSON-DORN

That’s right. And their future profits.

ORLOWSKI

Wow. And so that would be something that could turn out very expensive for the government to do.

ROBINSON-DORN

It could. Of course, “expensive” is relative. Look at some of these spills. And there’s a lot of expense associated with that.

ORLOWSKI

We still have these oil platforms drilling, we still have the pipelines, and it could be quite pricey to get them removed, but as you just noted, there’s a cost to having them. So what do you think needs to happen to prevent more disasters like this spill from occurring?

ROBINSON-DORN

I’m a lawyer and some of the answer to this is well beyond my own expertise, that’s for sure. But one thing you can certainly say with some certainty is that the extraction and transportation of oil from offshore cannot be made a 100 percent safe. And so whether we’re talking about increased regulation requirements ensuring that maintenance is done, that all of the efforts of prevention are being made at the maximum level, you’re still likely to have spills. Mistakes happen, human errors take place and the costs of these spills are very high. So ultimately, I think what you’re talking about is a question of values, not really a question of law. What is it that the citizens of California, the citizens of the United States, value here? And how do they value it? It’s a very small percentage of U.S. oil production that’s coming from these platforms off the California coast. And there’s a tremendous value to keeping our ecosystems healthy and intact, to keeping people healthy and to ensuring that the coasts are the jewels that they have been for so long, and that are really the reason that people live here.

ORLOWSKI

Professor Robinson-Dorn, thank you so much for joining me today on the UCI Podcast.

ROBINSON-DORN

Oh, it’s been my pleasure, Aaron.