Bryant Gardner Examines Legislative Developments as a result of the Deepwater Horizon Oil Spill

“The tragic loss of the DEEPWATER HORIZON on April 20, 2010 and still mounting environmental damages from the leaking "Macondo" well at Mississippi Canyon Block 252 have produced a robust, if not always like-minded reaction, in Washington,” writes Bryant Gardner. “As in the Gulf of Mexico, the Washington response remains a rapidly evolving situation. While it is impossible to predict at this stage what the end result will be, it is clear that the offshore industry will never be the same.”

“Many commentators say that the Oil Pollution Act of 1990 (OPA) is working and Congress and the President should step back and let the scheme work as intended. Nevertheless, given the swirling currents of public outrage, widespread economic malaise, and the battle for control of the House of Representatives in mid-term elections, the immediate response to the catastrophe will be as much or more about public perception and domestic U.S. politics as it will be about a sober and well-researched plan to ensure that such an event never happens again,” explains the author.

“The cause of the loss and who is to blame remain unclear. During a slew of congressional hearings, 65% majority well lessee BP stated that it would take full responsibility and pay all ‘legitimate claims,’ irrespective of the $75 million per incident limitation provision afforded by OPA. BP has cast blame, however, upon rig owner Transocean, Ltd. for the failure of the blowout preventer that it installed and that appears to be the main cause of the still unchecked spill,” reports Gardner, a partner in Winston & Strawn's Washington, D.C. office. “Transocean, in turn, blamed subcontractor Halliburton Co., which laid the cement that was supposed to seal the wellbore. Halliburton has blamed BP, saying that it reviewed and approved the cement pouring. Finally, BP's co-lessees, Anadarko Petroleum Corp. (25% lease owner) and Mitsui Oil Exploration Co. (10% lease owner) have resisted taking any responsibility, with Anadarko calling BP's actions ‘gross negligence’ and ‘willful misconduct.’ With few exceptions, neither legislators nor the President have shown much patience for this blame game, and, so far, it appears that BP, as the permit holder and deepest pocket among several, will be the focal point for the initial federal response.”

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   Bryant Gardner is a partner in Winston & Strawn's Washington, D.C. office who concentrates his practice in admiralty, maritime, and transportation-related government relations, transactions, and litigation.

Mr. Gardner's experience includes regulatory counseling, government contract negotiations and disputes, fleet refinancing, newbuild financing and delivery, Federal Maritime Commission litigation, environmental crimes defense, and matters involving the carriage of hazardous materials. He also has extensive experience representing maritime and other transportation industry clients before Congress, the U.S. Coast Guard, the U.S. Maritime Administration, Department of Transportation, the U.S. Environmental Protection Agency, the U.S. Customs Service, Federal Motor Carrier Safety Administration, Pipeline and Hazardous Materials Safety Administration, and other agencies. Access Bryant Gardner’s Martindale-Hubbell profile at martindale.com.

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