The Sinking of Environmental Law

The sinking of the Deepwater Horizon platform operated by B.P. on April 22, 2010, and the oil slick that is already sullying Louisiana’s coasts is the latest in a litany of catastrophes. Since the sinking of the Torrey Canyon in March 1967, the judicial void of the time nonetheless gave way to a powerful arsenal, based chiefly around the principle of the polluter-payer and the concept of ecological prejudice, which was recently applied in the context of the Erika trial.

Thus, environmental law has often progressed because of breakthroughs following these catastrophes: the International Convention on Civil Liability for Oil Pollution Damage (1969), after the sinking of the Torrey Canyon (1967), reinforced the responsibility of ship owners; the European Seveso Directive (1982), after the Seveso chemical cloud (1976), reinforced the security and monitoring of the most dangerous industrial facilities; the American Oil Pollution Act (1990), after the sinking of the Exxon Valdez (1989) — under threat of the vessel’s uninsurability — required the use of double hulls; the European legislative “packets” — Erika 1, 2 and 3 (2001-2009), after the sinking of the Erika (1999), reinforced the security and monitoring of ships as well as sanctions, notably penal, in case of pollution; the “risks” law (2003), after the AZF factory explosion (2001), instituted plans for preventing technological risks (PPRT) …

However, each industrial catastrophe, each oil spill, cruelly recalls the law’s limits. Because at the origin of these catastrophes, there are mistakes, errors, lapses in the rules, violations of the law, such as Bhopal with its 30,000 dead. It’s enough to look into the great catastrophes of these last 40 years to ascertain to what extent the strictly economic logic of cost reduction has been the cause of them: reductions in crew, inappropriate workloads, insufficient training, non-replacement or non-repair of outdated equipment, lack of investment in security … Moreover, B.P. seems to have minimized security-related costs, as attested in a 52-page document submitted to the Federal Agency for Mineral Resources Management, where the company judged the risk of petroleum discharge “improbable.”

In a context of increasing petroleum demand, notably from emerging countries, pressure mounts to find new supplemental resources with new platforms — “offshore” production already represents one-third of total petroleum production — or the search for unconventional petroleum or gas. Thus, to secure the United States’ consumption, Barack Obama desires to expand the area of high seas drilling. And yet, to the extent that the number of platforms in this race to drill increases, the risk of failures and spills increases accordingly.

In the end, the pressure exerted on companies to find more resources will necessarily increase the environmental risks. And, in this issue, not everyone is treated the same. Whether the spill occurs in the Gulf of Mexico or the Gulf of Guinea, the consequences in terms of environmental destruction are the same, but the financial consequences will very probably be different for the accused company. National authorities have, in effect, neither the same capacity to enforce the law, nor the same judicial traditions. Some countries have the political, technical and financial means to make the polluters pay — others do not. It is high time to ask if respect for a stronger environmental law should not be monitored at an international level, still today largely wanting.