The National Sea Grant Law Center


  • Brace for Heavy Rolls: Litigation Over Fifteen-Year-Old Oil Spill Foretells Big Changes for OPA

  • June 3rd, 2021 — Collin Sykes — Category: Environmental Law

  • On September 16, 2004, Hurricane Ivan made landfall on the Gulf Coast of Alabama. While crossing the Gulf of Mexico, the Category III storm ravaged the region’s offshore oil infrastructure. In one incident, Taylor Energy Company's oil production platform at Mississippi Canyon Block 20 (MC20) collapsed when the storm surge caused a subsea mudslide in the loose sedimentary bottom terrain. The mudslide and ensuing fall of the oil platform’s superstructure broke several major components of the rig, including twenty-eight subsea well heads and connecting pipelines. Between September 2004 and June 2019, the MC20 site leaked more than 38,000,000 gallons of oil into the Gulf of Mexico— three times more than Exxon Valdez, based on findings from a 2019 report by Florida State University researchers and scientists from the National Oceanographic and Atmospheric Administration (NOAA). In addition to the ecological damage caused by the spill, the MC20 incident generated an ongoing storm of litigation between Taylor Energy, the U.S. Coast Guard, and other involved agencies and response contractors over who should pay for the cleanup according to the Oil Pollution Act (OPA) of 1990.

    Congress passed the OPA in response to Exxon Valdez to provide a uniform policy for quickly responding to and preventing maritime oil spills. The liability provisions of the OPA hold owners and operators of oil production vessels and facilities—known under the statutory scheme as “responsible parties”—responsible for paying the actual costs incurred during recovery after a spill. Oil Pollution Act of 1990, 33 U.S.C. § 2702. The Act also provides for the Oil Spill Liability Trust Fund (OSLTF), which compensates responders after cleanup costs have exceeded a responsible party’s ability to pay. 33 U.S.C. § 1321; see 26 U.S.C. § 9560. There are also provisions that protect responsible parties by limiting liability based on operator class (i.e., vessel, facility, barge, etc.) unless the operator acted with gross negligence in creating the spill. Finally, the OPA exempts responsible parties from all liability for a spill caused by an “Act of God,” which the statute defines as “an act occasioned by an unanticipated grave natural disaster.” 33 U.S.C. § 1321. The goal of the OPA’s liability structure was to deter operators from viewing oil spills as a necessary evil and to provide incentives for containing and cleaning up spills as quickly as possible.

    These goals were not realized at the MC20 site. The Coast Guard assumed direct oversight of the response in 2018, ten years after Taylor Energy liquidated its oil and gas holdings. The intervening years were replete with secrecy, contradictory leak rate estimates, and lawsuits which greatly hindered a comprehensive and effective response. After “capping” the leak site with a novel seafloor containment system in 2019, the Coast Guard filed suit against Taylor Energy on October 23, 2020 in the District Court of Eastern Louisiana. The Coast Guard’s complaint seeks over $43 million in operating and recovery costs under the OPA and certain provisions of the Clean Water Act. The trial is set to occur in August 2022.

    Contemporaneously, Taylor Energy filed suit in the U.S. District Court for the District of Columbia in April 2020 seeking a court order that would overturn a 2019 decision to deny reimbursement from the OSLTF. Taylor Energy alleges that the Coast Guard’s rejection of the company’s asserted “Act of God” defense was arbitrary and capricious in violation of the Administrative Procedures Act and should therefore be set aside. Taylor Energy submitted a motion for summary judgment on these grounds on March 8, 2021. Meanwhile, the containment system continues to capture between 380 and 4500 gallons of oil from the capped site every day.

    Whatever the outcome of these cases, the MC20 incident and consequent litigation are likely to mark a turning point in the confusion over assigning liability for purposes of the OPA. In an era where the risk of devastating, high intensity hurricanes is demonstrably higher due to climate change, lingering oil spills like MC20 are likely to become more common. Interminable legal disputes will only exacerbate the human and financial toll of these catastrophes. Congress may be required to take action if courts alone are unable to usher in greater clarity and efficiency under the current statutory scheme.

    Collin Sykes is a guest author for the National Sea Grant Law Center Blog. He is a rising 2L at Villanova University Charles Widger School of Law and can be reached at

  • Collin Sykes
    NSGLC Blog Guest Author

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