Summary

Oil is a primary source of energy in the United States. Domestic oil production has increased in recent years, and vast quantities of oil continually enter the country via vessel or pipeline, moving throughout the country to various destinations. With such widespread use and nonstop movement, it is inevitable that some number of spills will occur.

Oil spills have raised environmental concerns for decades. Several major U.S. oil spills have had lasting repercussions that transcended local environmental and economic effects: the1969 well blowout off the coast of Santa Barbara, California; the 1989 Exxon Valdez oil spill in Prince William Sound, Alaska; and the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. More recent spills in various locations from other sources, including pipelines and rail transportation, have garnered attention from policymakers. The impacts of an oil spill depend on the size of the spill, the rate of the spill, the type of oil spilled, and the location of the spill. Depending on timing and location, even a relatively minor spill can cause significant harm to individual organisms and entire populations. Oil spills can cause impacts over a range of time scales, from days to years, or even decades for certain spills.

Over the past two decades, the annual number and volume of oil spills have shown declines—in some cases, dramatic declines. However, this trend was altered dramatically by the 2010 Deepwater Horizon oil spill in the Gulf of Mexico. The incident led to a significant release of oil: according to the federal government's estimate, the well released approximately 206 million gallons of oil before it was contained on July 15, 2010. Five years later, various legal issues are ongoing, including potential penalties, natural resource damages, and economic claims. Scientists continue to study the fate and impact of the spill.

The governing framework for oil spills in the United States remains a combination of federal, state, and international authorities. Within this framework, several federal agencies have the authority to implement oil spill regulations. Agency responsibilities can be divided into two categories: (1) oil spill response and cleanup and (2) oil spill prevention/preparedness.

Oil spill response authority is determined by the location of the spill: the U.S. Coast Guard has response authority in the U.S. coastal zone, and the Environmental Protection Agency (EPA) covers the inland zone. The Clean Water Act, as amended by the Oil Pollution Act (OPA) in 1990, provides the federal authority to perform cleanup immediately using federal resources, monitor the response efforts of the spiller, or direct the spiller's cleanup activities. The lead federal responder (either from Coast Guard or EPA) determines the level of cleanup required. Federal responders have immediate access to funds in the Oil Spill Liability Trust Fund to support cleanup activities. The trust fund is primarily financed by a per-barrel tax on domestic crude oil and imported petroleum products. The fund's balance is estimated to reach $4.8 billion at the end of FY2016.

Parties responsible for an oil spill may be liable for cleanup costs, natural resource damages, and specific economic damages, including personal property damage and lost profits or earning capacity. OPA provided (1) limited defenses from liability—act of God, act of war, and act or omission of certain third parties—and (2) conditional liability limits (or caps) for cleanup costs and other damages.

Jurisdiction over oil spill prevention and preparedness duties is determined by the potential sources (e.g., vessels, facilities, pipelines) of oil spills. A series of executive orders, coupled with memoranda of understanding, have established the various agency responsibilities. For example, EPA oversees onshore facilities, the Coast Guard oversees vessels, the Department of Transportation oversees pipelines and rail transportation, and the Department of the Interior's Bureau of Ocean Energy Management oversees offshore facilities (e.g., oil platforms).

Introduction

Oil is a dominant source of energy in the United States, accounting for approximately 36% of total energy consumption in 2014.¹ Its use is widespread, providing fuel for the transportation, industrial, and residential sectors. Vast quantities of oil continuously enter the country via vessel or pipeline. Vast quantities continually move throughout the country to various destinations. With such widespread use and nonstop movement, it is inevitable that some number of spills will occur.

Over the past few decades, two major U.S. oil spills have had lasting repercussions that transcended local environmental and economic effects:

For example, major oil well blowouts are relatively uncommon but have accounted for the largest unintentional oil spills in world history. In particular, the 2010 Deepwater Horizon incident released approximately 206 million gallons of oil before it was contained.⁶ In 1979, the IXTOC I oil well blowout released an estimated 140 million gallons in Mexican Gulf Coast waters.⁷ By comparison, the largest oil tanker spill in world history—the Atlantic Empress off the coast of Tobago in 1979—was estimated at approximately 84 million gallons.⁸

No single agency or organization collects oil spill data from all of the major sources for all locations. Although the National Response Center collects and provides details about a wide spectrum of incidents, the data are raw, and the spill volume data in particular are generally unreliable, because they are often initial, unverified estimates.

A national assessment of oil spills necessitates data collection from several sources, including the U.S. Coast Guard and the Department of Transportation's Pipeline and Hazardous Materials Safety Administration (PHMSA). Combining the data from these sources may be problematic, because (1) some incidents may be included in both sources of data; and (2) the data collection processes and scopes may vary. Therefore, data from these sources are presented separately below.

The Coast Guard maintains an Oil Spill Compendium with spill data for various sources within its jurisdiction for responding to oil spills.⁹ Pursuant to the National Contingency Plan (discussed below), the Coast Guard's oil spill response jurisdiction is the "coastal zone," defined in regulations to include

all United States waters subject to the tide, United States waters of the Great Lakes, specified ports and harbors on inland rivers, waters of the contiguous zone, other waters of the high seas subject to the NCP, and the land surface or land substrata, ground waters, and ambient air proximal to those waters.¹⁰

The figure indicates that the number of incidents has decreased over time. Except for several large incidents in 2005 and 2006 (and the Deepwater Horizon incident in 2010), the volume of spilled oil has remained relatively consistent. In 2005, approximately 8 million gallons of oil were released from Louisiana facilities damaged during Hurricane Katrina; in 2006, approximately 2 million gallons spilled from a refinery in Louisiana.¹²

Does not include the volume from the 2010 uncontrolled Macondo well

The spill volume from the 2010 uncontrolled Macondo well is not included in the above figure: the magnitude of its spill volume makes it difficult to compare annual spill volumes. In 2010, an interagency team estimated the spill volume at 206 million gallons (Federal Interagency Solutions Group, Oil Budget Calculator Science and Engineering Team, Oil Budget Calculator: Deepwater Horizon-Technical Documentation, November 2010). The figure does include an estimate of oil released (approximately 400,000 gallons) from the Deepwater Horizon mobile offshore drilling unit.

Does not include the volume from 2010 uncontrolled Macondo well in the Gulf of Mexico

The spill volume from the 2010 uncontrolled Macondo well is not included in the above figure: the magnitude of its spill volume makes it difficult to compare annual spill volumes. In 2010, an interagency team estimated the spill volume at 206 million gallons (Federal Interagency Solutions Group, Oil Budget Calculator Science and Engineering Team, Oil Budget Calculator: Deepwater Horizon-Technical Documentation, November 2010). The figure does include an estimate of oil released (approximately 400,000 gallons) from the Deepwater Horizon mobile offshore drilling unit.

Spill Volume and Incident Number

Source: Prepared by CRS; data from PHMSA Incidents Report Database, at http://www.phmsa.dot.gov/hazmat/library/data-stats/incidents

Notes: The pipeline and rail data include all incidents in the PHMSA database. The increased spill volume by rail in 2008 resulted from a large oil spill (over 80,000 gallons) in Luther, Oklahoma; the increased volume in 2013 is the result of two major incidents: train derailments in Aliceville, Alabama, and Casselton, North Dakota, which each released over 420,000 gallons of crude oil.

The recent increase in crude oil transport by rail and the corresponding increase in rail incidents have generated considerable interest from policymakers.¹⁶ Some have linked the increased rail transportation to the debate over the Keystone XL pipeline.¹⁷ The two figures below provide a comparison between pipeline and rail transportation.

Pipeline vs. Rail

Source: Prepared by CRS; oil spill data from PHMSA Incidents Report Database, http://www.phmsa.dot.gov/hazmat/library/data-stats/incidents; pipeline transport data from Energy Information Administration, "Refinery Receipts of Crude Oil by Method of Transportation," http://www.eia.gov; rail transportation data from Association of American Railroads, "Moving Crude Oil by Rail," September 2014, https://www.aar.org. The pipeline and rail data include all incidents in the PHMSA database.

Pipeline vs. Rail

Source: Prepared by CRS; oil spill data from PHMSA Incidents Report Database, http://www.phmsa.dot.gov/hazmat/library/data-stats/incidents; pipeline transport data from Energy Information Administration, "Refinery Receipts of Crude Oil by Method of Transportation," http://www.eia.gov; rail transportation data from Association of American Railroads, "Moving Crude Oil by Rail," September 2014, https://www.aar.org. The pipeline and rail data include all incidents in the PHMSA database.

In its Final EIS for Keystone XL, the State Department reached similar conclusions.¹⁸ Using Pipeline and Hazardous Material Safety Administration as well as Coast Guard data to compare oil spill frequency and volume by mode of transportation, the State Department found that between 2002 and 2009

pipeline transport has the highest number of barrels released per ton-mile compared to rail; and

rail transport has the highest number of reported releases per ton-mile compared to pipelines.¹⁹

The impacts of an oil spill depend on the size of the spill, the rate of the spill, the type of oil spilled, and the location of the spill. Depending on timing and location, even a relatively minor spill can cause significant harm to individual organisms and entire populations.²⁰ Oil spills can cause impacts over a range of time scales, from days to years, or even decades for certain spills. Impacts are typically divided into acute (short-term) and chronic (long-term) effects. Both types are part of a complicated and often controversial equation that is addressed after an oil spill: ecosystem recovery.

Depending on the toxicity and concentration of the spill, acute exposure to oil spills can kill various organisms and cause the following debilitating (but not necessarily lethal) effects:²¹

• reduced reproduction,
• altered development,
• impaired feeding mechanisms, and
• decreased defense from disease.

Birds, marine mammals, bottom-dwelling and intertidal species, and organisms in their developmental stages (e.g., fish eggs and larvae) are particularly vulnerable to oil spills.²²

In addition to the impacts to individual organisms, oil spills can lead to a disruption of the structure and function of the ecosystem. Certain habitats—such as coral reefs, mangrove swamps, and salt marshes—are especially vulnerable, because the physical structure of the habitats depends upon living organisms.

These potential acute effects to individual organisms and marine ecosystems have been "unambiguously established" by laboratory studies and well-studied spills.²³

Long-term, chronic exposure typically occurs from continuous oil releases—leaking pipelines, offshore production discharges, and non-point sources (e.g., urban runoff). Although spills are normally associated with acute impacts, some oil spills have also demonstrated chronic exposure and effects.²⁴ There is increasing evidence that chronic, low-level exposures to oil contaminants can significantly affect the survival and reproductive success of marine birds and mammals.²⁵ However, because of the complexity of factors, including a longer time period and presence of other pollutants, determining the precise effects on species and ecosystems due to chronic oil exposure in a particular locale is difficult for scientists. As a result, studies involving chronic effects are often met with debate and some controversy.

Location

Oil Type

Oil Volume

The governing framework for oil spills in the United States remains a combination of federal, state, and international authorities. Within this framework, several federal agencies have the authority to implement oil spill regulations. The framework and primary federal funding process used to respond to oil spills are described below.

When responding to a spill, many considered the lines of responsibility under the pre-OPA regime to be unclear,⁴¹ with too much reliance on spillers to perform proper cleanup.⁴² OPA strengthened and clarified the federal government's role in oil spill response and cleanup. OPA Section 4201 amended Section 311(c) of the CWA to provide the President (delegated to the U.S. Coast Guard or EPA) with authority to perform cleanup immediately using federal resources,⁴³ monitor the response efforts of the spiller, or direct the spiller's cleanup activities. The revised response authorities addressed concerns "that precious time would be lost while waiting for the spiller to marshall its cleanup forces."⁴⁴

The federal government—specifically the On-Scene Coordinator (OSC) for spills in the Coast Guard's jurisdiction—determines the level of cleanup required. Although the federal government must consult with designated trustees of natural resources and the governor of the state affected by the spill, the decision that cleanup is completed and can be ended rests with the federal government. States may require further work, but without the support of federal funding.⁴⁵

The first National Oil and Hazardous Substances Pollution Contingency Plan (NCP) was administratively prepared in 1968 after observing the British government's response to a 37-million-gallon oil tanker spill (Torrey Canyon) off the coast of England.⁴⁶ The NCP contains the federal government's procedures for responding to oil spills and hazardous substance releases.⁴⁷

OPA expanded the role and breadth of the NCP. The 1990 law established a multi-layered planning and response system to improve preparedness and response to spills in marine environments.⁴⁸ Among other things, the act also required the President to establish procedures and standards (as part of the NCP) for responding to worst-case oil spill scenarios.⁴⁹

For further details on the NCP, see CRS Report R43251, Oil and Chemical Spills: Federal Emergency Response Framework, by [author name scrubbed] and [author name scrubbed].

As a component of the enhanced NCP, OPA amended the CWA to require that U.S. tank vessels, offshore facilities, and certain onshore facilities⁵⁰ prepare and submit oil spill response plans to the relevant federal agency. In general, vessels and facilities are prohibited from handling, storing, or transporting oil if they do not have a plan approved by (or submitted to) the appropriate agency (discussed below).⁵¹

The plans should, among other things, identify how the owner or operator of a vessel or facility would respond to a worst-case scenario spill. Congress did not intend for every vessel to have onboard all the personnel and equipment needed to respond to a worst-case spill, but vessels must have a plan and procedures to call upon—typically through a contractual relationship—the necessary equipment and personnel for responding to a worst-case spill.⁵²

In 2004, Congress enacted an amendment requiring non-tank vessels (i.e., ships carrying oil for their own fuel use) over 400 gross tons to prepare and submit a vessel response plan.⁵³ Congress reasoned that many non-tank vessels have as much oil onboard as small tank vessels, thus presenting a comparable risk from an oil spill. Moreover, the international standards for oil spill prevention⁵⁴ apply to tanker and non-tanker vessels alike. Thus, the 2004 amendment brought the U.S. law more in line with international provisions.

The issue of double hulls received considerable debate for many years prior to OPA, and it was one of the stumbling blocks for unified oil spill legislation. Proponents maintained that double-hull construction provides extra protection if a vessel becomes damaged.⁵⁵ However, opponents argued that a double-hulled vessel might cause stability problems if an accident occurred, thus negating the benefits.⁵⁶ Stakeholders also highlighted the impacts that a double-hull requirement would entail for the shipping industry (e.g., cost and time of retrofitting, ship availability).⁵⁷ The OPA requirements for double hulls reflected some of these concerns.

The act required new vessels carrying oil and operating in U.S. waters to have double hulls.⁵⁸ However, OPA provided certain exceptions, depending on the size of the vessel (e.g., less than 5,000 gross tons)⁵⁹ and its particular use (e.g., lightering).⁶⁰ For older vessels, OPA established a staggered retrofitting schedule, based on vessel age and size. As of January 2010, single-hull vessels (with several exceptions, some of which expire in 2015) cannot operate in U.S. waters.

OPA unified the liability provisions of existing oil spill statutes, creating a freestanding liability regime. Section 1002 states that responsible parties are liable for any discharge of oil (or threat of discharge) from a vessel or facility⁶² to navigable waters, adjoining shorelines, or the exclusive economic zone⁶³ of the United States (i.e., 200 nautical miles beyond the shore).

Regarding the oil spill statutes prior to OPA, Congress recognized that "there is no comprehensive legislation in place that promptly and adequately compensates those who suffer other types of economic loss as a result of an oil pollution incident."⁶⁴ OPA broadened the scope of damages (i.e., costs) for which an oil spiller would be liable. Under OPA, a responsible party is liable for all cleanup costs incurred, not only by a government entity, but also by a private party.⁶⁵ In addition to cleanup costs, OPA significantly increased the range of liable damages to include the following:

• injury to natural resources,
• loss of personal property (and resultant economic losses),
• loss of subsistence use of natural resources,
• lost revenues resulting from destruction of property or natural resource injury,
• lost profits and earning capacity resulting from property injury or natural resource injury, and
• costs of providing extra public services during or after spill response.⁶⁶

OPA provided limited defenses from liability: act of God, act of war, and act or omission of certain third parties. These defenses are similar to those of the Superfund statute,⁶⁷ established in 1980 for releases of hazardous substances (which does not include oil).

Except for certain behavior, including acts of gross negligence or willful misconduct,⁶⁸ OPA set liability limits (or caps) for cleanup costs and other damages. Until 2006, liability limits for vessels were based on vessel carrying capacity, generally $1,200 per gross ton. As an example, the liability limit for the 2004 Athos tanker spill in Delaware River was approximately $45 million.⁶⁹

Receipts, Expenditures, and End-of-Year Balances

Source: Prepared by CRS; data from annual Office of Management and Budget, Budget of the United States Government, Appendices.

Notes: The initial gap between the end-of-year balance (line) and the receipts-expenditures columns is due to the FY1991 starting balance of $358 million. The relative increases in "other receipts" in 1995 and 2000 are due to transfers from the Trans-Alaska pipeline fund of $119 million and $182 million, respectively. The increases in expenditures and "other receipts" between 2010 and 2013 are related to the 2010 Deepwater Horizon oil spill.

To preserve the trust fund and ensure that responsible parties can be held accountable for oil spill cleanup and damages, OPA requires that vessels and offshore facilities maintain evidence of financial responsibility (e.g., insurance). The Coast Guard's National Pollution Funds Center (NPFC) implements the financial responsibility provisions for vessels; the Bureau of Ocean Energy Management implements this requirement for offshore facilities.

The current levels of financial responsibility are related to the current liability limits for various sources (e.g., vessels, offshore facilities) of potential oil spills. The liability limits differ by potential source. In the case of vessels, whose liability limits are a single dollar amount encompassing both removal costs and other damages, the financial responsibility levels are directly tied to the corresponding liability caps. Current law requires responsible parties for vessels to demonstrate the "maximum amount of liability to which the responsible party could be subjected under [the liability limits in OPA Section 1004; 33 U.S.C. 2704]."

Because the structure of offshore facility liability limit is different than vessels, the corresponding financial responsibility limit provisions differ. Responsible parties for offshore facilities in federal waters must demonstrate $35 million financial responsibility, unless the President determines a greater amount (not to exceed $150 million) is justified (33 U.S.C. 2716(c)). The federal regulations that are authored by this statutory provision (30 C.F.R. Part 254) base the financial responsibility amount—between $35 million and $150 million—on a facility's worst-case discharge volume (as defined in 30 C.F.R. §253.14). For example, a facility with a worst-case discharge volume over 105,000 barrels⁸⁰—the highest level of worst-case discharge listed in the regulations—must maintain $150 million in financial responsibility.

Although OPA is the primary domestic legislation for oil spills, other federal laws contain provisions that relate to oil spills. Many of these provisions were in place before OPA. The following list is not all-inclusive, but it highlights the main requirements authorized by laws other than OPA.

The Clean Water Act (CWA) was the primary federal statute governing oil spills prior to OPA and many provisions continue to apply. A key provision is found in Section 311(b)(3), which prohibits the discharge of oil or hazardous substances into U.S. navigable waters. In addition, the CWA contains various penalty provisions for noncompliance, including violations of the discharge prohibition of Section 311(b).⁸¹

Pursuant to statutory requirements in the CWA,⁸² the EPA crafted regulations⁸³ for spill prevention control and countermeasure (SPCC) plans in 1973. SPCC plans address the "procedures, methods, and equipment and other requirements for equipment to prevent discharges."⁸⁴ The EPA's SPCC plans apply only to non-transportation, onshore facilities that exceed a certain oil storage capacity and that, in the event of a spill, can be reasonably expected, because of their location, to produce an oil discharge that would reach navigable waters or adjoining shorelines of the United States.⁸⁵ Unlike other oil spill preparedness provisions, SPCC plans focus more on prevention than on response activities, requiring, for example, secondary containment (e.g., dikes, berms) for oil-storage equipment.

The agency offered several regulatory amendments after the 1973 rulemaking. Following the passage of the Oil Pollution Act of 1990 (OPA),⁸⁶ the agency proposed substantial changes and clarifications that were not made final until July 2002. For reasons beyond the scope of this report, the effective date of the 2002 final rule has been extended multiple times; for some parts of the amended rule, the current effective date was January 14, 2009, and for other parts, the effective date was extended to November 10, 2010.⁸⁷ However, EPA proposed in July 2010 to extend the date an additional year for most facilities.⁸⁸

The primary federal law governing oil development and operations in waters in federal jurisdiction is the Outer Continental Shelf Lands Act (OCSLA) of 1953 and its subsequent amendments (43 U.S.C. §§1331-1356). The OCSLA provided the foundation for regulations (30 C.F.R. Parts 250 and 550) that are implemented by the Bureau of Ocean Energy Management (BOEM) and the Bureau of Safety and Environmental Enforcement (BSEE).⁸⁹ Sections of these regulations address oil spill prevention and response issues by requiring that various equipment and procedures be in place at offshore facilities.⁹⁰

The U.S. pipeline network is extensive: The Pipeline and Hazardous Materials Safety Administration estimates that there are more than 160,000 miles of hazardous liquid pipelines in the United States.⁹¹ Moreover, U.S. inland pipelines are concentrated in coastal areas, particularly in the Gulf states, and these pipelines may have an impact on coastal waters if spills reach waterways that empty into coastal waters.

Recent Pipeline Spills

Kalamazoo River, Michigan—2010

Yellowstone River, Montana—2011

Santa Barbara coastline, California—2015

On May 19, 2015, an onshore pipeline operated by Plains All American Pipeline released crude oil that eventually flowed into the Pacific Ocean near Santa Barbara.⁹⁴ According to PHMSA, "a Unified Command has been established, led by the U.S. Coast Guard and PHMSA is coordinating with other federal, state and local officials at the scene."⁹⁵ As of May 25, 2015, the spill volume is estimated at approximately 101,000 gallons.⁹⁶

For more up-to-date information, see the Joint Information Center website at http://www.refugioresponse.com.

Potential Source of Oil Spill

Responsible Agency

Vessels

Coast Guard

Onshore, non-transportation facilities

Environmental Protection Agency

Onshore, transportation facilities

Coast Guard and Department of Transportation

Coast Guard and Department of Transportation

Offshore facilities (oil/gas extraction)

Bureau of Ocean Energy Management within the Department of Interior

Bureau of Ocean Energy Management within the Department of Interior

Offshore pipelines not directly associated with oil extraction activities (i.e., "transmission lines")

Office of Pipeline Safety within the Department of Transportation

Inland pipelines

Office of Pipeline Safety within the Department of Transportation

Regardless of the clarification in the conference report, the line between federal and state jurisdiction (i.e., the extent of federal preemption) continues to be tested. In 2000, the Supreme Court struck down (as preempted) a Washington State rule calling for various personnel requirements, such as training, on oil tankers.¹¹⁸ Similarly, in March 2010, a federal district court in Massachusetts ruled against a state law—finding it preempted—that would affect tanker design, personnel qualifications, and navigation.¹¹⁹

The following list highlights the primary federal authorities that were in effect when the Exxon Valdez spill occurred in 1989:

• Clean Water Act (1972): The Clean Water Act (CWA) represented the broadest authority for addressing oil spills at the time of the Exxon Valdez spill. Section 311 of the CWA established requirements for oil spill reporting, response, and liability. The act also created a fund (311 Fund), maintained by federal appropriations, that could be used for cleanup and natural resource restoration.
• Deepwater Port Act (1974):¹²⁰ This statute addressed oil spills and liability issues at deepwater oil ports. The act also set up the Deepwater Port Fund to provide for prompt cleanup and to compensate damages above liability limits. The fund was financed by a per-gallon tax on oil transferred at a deepwater port.
• Trans-Alaska Pipeline Authorization Act (1973):¹²¹ This act covered oil spills and liability relating to the Trans-Alaska Pipeline System (TAPS). Although the pipeline is constructed over land, spills from it could reach coastal waters via inland rivers. The act created a trust fund, financed through a lessee fee, that could be used to respond to spills and damages from the pipeline.
• Outer Continental Shelf Lands Act Amendments (1978):¹²² This act established an oil spill liability structure and rules for oil extraction facilities in federal offshore waters. With this legislation, Congress created the Offshore Pollution Fund, financed by a per-gallon fee on produced oil, that could be used for oil spill cleanup and damages.
• National Oil and Hazardous Substances Pollution Contingency Plan (NCP): The first NCP was administratively prepared in 1968 after observing the British government's response to a 37-million-gallon oil tanker spill (Torrey Canyon) off the coast of England.¹²³ The NCP contains the federal government's procedures for responding to oil spills and hazardous substance releases.¹²⁴

After the Exxon Valdez spill, many observers¹²⁵ described the above legal collection as an ineffective patchwork. Arguably, each law had perceived shortcomings (discussed below in the context of post-Exxon Valdez legislation), and none provided comprehensive oil spill coverage.

For more than 15 years prior to the Exxon Valdez incident, Congress made attempts to enact a unified oil pollution law. Several contentious issues produced deadlocks, hindering the passage of legislation. One of the central points of debate, state preemption, dealt with whether a federal oil spill law should limit a state's ability to impose stricter requirements, particularly unlimited liability. Other liability questions also generated debate. For example, if an oil spill occurred, should the owner of the cargo (i.e., oil) be held liable, as was the ship owner/operator? Another point of contention was whether oil-carrying vessels should be required to have double hulls. Although proponents argued that a second hull would help prevent oil spills, the shipping industry raised concern that implementing such a mandate would disrupt oil transportation and potentially affect the national economy. A final issue involved the interaction between domestic legislation (federal and state) and international measures. Some were concerned that if the United States became a party to certain international agreements under consideration in the 1980s,¹²⁶ the international standards would preempt federal and state laws, especially those establishing liability limits. Proponents argued that these concerns were overstated and stressed that joining the international agreements was especially important for the United States because of the international nature of oil transportation and associated pollution.

Footnotes

Energy Information Administration, Monthly Energy Review, Primary Energy Consumption by Source, Table 1.3, accessed April 2015, http://www.eia.gov/totalenergy/data/monthly/pdf/sec1_7.pdf.

An estimated 17% of this oil did not enter the Gulf environment but was directly recovered from the wellhead by BP. See the Federal Interagency Solutions Group, Oil Budget Calculator Science and Engineering Team, Oil Budget Calculator: Deepwater Horizon-Technical Documentation, November 2010. See also CRS Report R41531 (archived), Deepwater Horizon Oil Spill: The Fate of the Oil, by [author name scrubbed].

Note that the Exxon Valdez spill ranks only 35^th for spill volume on the list of international tanker spills since 1967. See International Tanker Owners Pollution Federation Limited, "Historical Data," http://www.itopf.com/stats.html.

See National Research Council (NRC), Oil in the Sea III: Inputs, Fates, and Effects, National Academies of Science (hereinafter "NRC report, 2003"), February 2003, p. 11.

In this report, oil refers to crude oil and petroleum products, including gasoline and other fuels, unless stated otherwise.

National Incident Command's Flow Rate Technical Group estimate of August 2, 2010.

NRC report, 2003, p. 33.

The Coast Guard states that its Oil Spill Compendium includes spills that have been "investigated" by the Coast Guard. Further, "this data is provided 'as reported,' with no interpretation or filtering. For example, incidents that fall within the jurisdiction of other agencies, or that are not required to be reported under existing Coast Guard regulations, may or may not be included in the compendium." USCG Oil Spill Compendium, https://homeport.uscg.mil (click on "Investigations").

40 C.F.R. §300.5.

In 2010, an interagency team estimated the spill volume at 206 million gallons. An estimated 17% of this oil did not enter the Gulf environment but was directly recovered from the wellhead by BP. See Federal Interagency Solutions Group, Oil Budget Calculator Science and Engineering Team, Oil Budget Calculator: Deepwater Horizon-Technical Documentation, November 2010.

U.S. Coast Guard, Oil Spill Compendium, Part II.

In addition, several substantial oil spills occurred in 1990, including the Mega Borg tanker that spilled over 4 million gallons of oil in the Gulf of Mexico.

The Exxon Valdez spill tallied approximately $2 billion in cleanup costs and $1 billion in natural resource damages (not including third-party claims)—in 1990 dollars. Punitive damage claims were litigated for more than 12 years, eventually reaching the U.S. Supreme Court in 2008 (Exxon Shipping v. Baker, 128 S. Ct. 2605 (2008)). Plaintiffs were eventually awarded approximately $500 million in punitive damages. An additional $500 million in interest on those damages was subsequently awarded.

Based on data from the Association of American Railroads, "Moving Crude Oil by Rail," September 2014, https://www.aar.org. For further details, see CRS Report R43390, U.S. Rail Transportation of Crude Oil: Background and Issues for Congress, by [author name scrubbed] et al.

For a more comprehensive discussion, see CRS Report R43390, U.S. Rail Transportation of Crude Oil: Background and Issues for Congress, by [author name scrubbed] et al.

For more information on issues relating to the Keystone XL pipeline, see CRS Report R43787, Keystone XL Pipeline: Overview and Recent Developments, by [author name scrubbed] et al.

The State Department used ton-mile data to measure the transportation component. Ton-mile data were compiled by the Association of Oil Pipelines through 2009 but discontinued thereafter. As a substitute for ton-mile data, CRS used gallons transported to measure oil transportation in Figure 4 and Figure 5. However, the gallons transported data do not capture the distance component that is embedded in the ton-mile data.

U.S. Department of State, Final Supplemental Environmental Impact Statement for the Keystone XL Project, January 2014, p. 5.3-9 and Figures 5.3.3-1 and 5.3.3-2.

NRC report, 2003, p. 4.

These "sub-lethal" effects can occur at concentrations that are several orders of magnitude lower than concentrations that cause death. NRC report, 2003, p. 127.

NRC report, 2003, Chapter 5; also multiple conversations with National Oceanic and Atmospheric Administration (NOAA) personnel (2008).

NRC report, 2003, p. 120.

NRC report, 2003, p. 121.

NRC report, 2003, p. 134.

See, for example, Terry Hazen et al., "Deep-Sea Plume Enriches Indigenous Oil-Degrading Bacteria," Science (Online), August 24, 2010; Richard Camilli et al., "Tracking Hydrocarbon Plume Transport and Biodegradation at Deepwater Horizon," Science (Online), August 19, 2010.

For example, the November 7, 2007, spill (53,000 gallons) from a container ship into the San Francisco Bay generated considerable interest.

The average cleanup cost is three times higher in the United States than in Europe (based on 1997 data and excluding the Exxon Valdez costs). See Etkin, Dagmar, "Estimating Cleanup Costs for Oil Spills," paper presented at the 1999 International Oil Spill Conference, 1999, citing data from the Oil Spill Intelligence Report International Oil Spill Database.

This is primarily due to the fact that a spill of any size (e.g., in a sensitive area) will require that equipment and response experts be sent to the scene. See Etkin, Dagmar, "Estimating Cleanup Costs for Oil Spills," paper presented at the 1999 International Oil Spill Conference, 1999, p. 5.

For more information, see NOAA's Damage Assessment, Remediation, and Restoration Program at http://www.darrp.noaa.gov/about/index.html.

33 U.S.C. §2706(c). In some cases, trustees may share responsibility over the same resource. See, for example, Department of the Interior's "Pollution Response and Natural Resource Trusteeship Training Module On NRDA," at http://www.doi.gov/oepc/response/a01.htm.

33 U.S.C. §2712 and Executive Order (EO) 12777 (October 18, 1991).

33 U.S.C. §2706(d).

61 Federal Register 440 (January 5, 1996). See also NOAA, Injury Assessment Guidance Document for Natural Resource Damage Assessment Under the Oil Pollution Act of 1990 (1996).

See 15 C.F.R. §990.30, definition of "value."

33 U.S.C. §2706(f); William D. Brighton, Natural Resource Damages under the Comprehensive Environmental Response, Compensation, and Liability Act (2006), U.S. Department of Justice, Environment and Natural Resources Division.

William D. Brighton, Natural Resource Damages under the Comprehensive Environmental Response, Compensation, and Liability Act (2006), U.S. Department of Justice, Environment and Natural Resources Division.

A handful of other oil spills followed the Exxon Valdez in 1989 and 1990 (e.g., the Mega Borg spilled 5 million gallons of oil in the Gulf of Mexico), further spurring congressional action.

P.L. 101-380, primarily codified at U.S.C. §2701 et seq.

The official statutory name is the Federal Water Pollution Control Act, P.L. 92-500, as amended, codified at 33 U.S.C. §1251 et seq.

See, for example, Wilkinson, Cynthia et al., "Slick Work: An Analysis of the Oil Pollution Act of 1990," Journal of Energy, Natural Resources, and Environmental Law, 12 (1992), p. 190.

Leading up to the passage of OPA, parties referred to this approach as "federalizing" the spill.

U.S. Congress, House Committee on Merchant Marine and Fisheries, Report accompanying H.R. 1465, Oil Pollution Prevention, Removal, Liability, and Compensation Act of 1989, 1989, H.Rept. 101-242, Part 2, 101^st Cong., 1^st sess., p. 84.

OPA §1011.

See EPA "National Contingency Plan Overview" at http://www.epa.gov/emergencies/content/lawsregs/ncpover.htm.

The NCP is codified at 40 C.F.R. Part 300.

OPA §4202, amending §311(j) of the CWA.

OPA §4201(b), amending §311(d)(2)(J) of the CWA.

The response plan requirement is applicable only to an onshore facility that, because of its location, could reasonably be expected to cause substantial harm to the environment by discharging into navigable waters, adjoining shorelines, or the exclusive economic zone. CWA §311(j)(5)(iii).

OPA §4202, amending §311(j)(5)(E) of the CWA.

U.S. Congress, House Committee on Merchant Marine and Fisheries, Report accompanying H.R. 1465, Oil Pollution Prevention, Removal, Liability, and Compensation Act of 1989, 1989, H.Rept. 101-242, Part 2, 101^st Cong., 1^st sess., p. 87. OPA §4202, amending §311(j)(5)(C)(iii) of the CWA.

Amendments Relating to the Oil Pollution Act of 1990, Title VII of Coast Guard and Maritime Transportation Act of 2004 (P.L. 108-293), codified at 33 U.S.C. §1321.

Primarily the shipboard oil pollution emergency plans required by MARPOL 73/78, discussed later in this report.

A study from the National Academy of Sciences reached this conclusion in 1999. See National Research Council, Double hull Tanker Legislation: An Assessment of the Oil Pollution Act of 1990, National Academies of Science, 1999, p. 144.

Opponents maintained that if water entered the space between hulls, the ship could become unstable, hindering salvage and possibly capsizing. Cynthia Wilkinson et al., "Slick Work: An Analysis of the Oil Pollution Act of 1990," Journal of Energy, Natural Resources, and Environmental Law, 12 (1992), p. 196.

OPA §4115, amending 46 U.S.C. §3703.

This exception applied to many inland barges.

Lightering is the process of transferring oil from a large vessel to a smaller vessel. This common practice occurs in designated areas that are typically many miles away from shore.

For a discussion of liability issues raised by the 2010 Deepwater Horizon oil spill, see CRS Report R41679, Liability and Compensation Issues Raised by the 2010 Gulf Oil Spill, by [author name scrubbed].

The definition of "facility" is broadly worded and includes pipelines and motor vehicles. OPA §1001.

Under the pre-OPA regime (primarily the CWA), a discharge 12 miles beyond shore had to affect the natural resources before liability attached. Under OPA §1002, the discharge itself triggers liability. Cynthia Wilkinson et al., "Slick Work: An Analysis of the Oil Pollution Act of 1990," Journal of Energy, Natural Resources, and Environmental Law, 12 (1992), p. 201.

U.S. Congress, House Committee on Merchant Marine and Fisheries, Report accompanying H.R. 1465, Oil Pollution Prevention, Removal, Liability, and Compensation Act of 1989, 1989, H.Rept. 101-242, Part 2, 101^st Cong., 1^st sess., p. 31.

OPA §1002(b)(1).

OPA §1002(b)(2).

Section 107(b) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, commonly known as Superfund), P.L. 96-510.

In addition, liability limits are unavailable if the violation of a federal safety, construction, or operating requirement proximately caused the spill. Spillers must also report the incident and cooperate with response officials to take advantage of the liability caps. OPA §1004(c).

37,895 gross tons x $1,200/ton = $45.47 million. Vessel data from United States Coast Guard, Investigation into the Striking of Submerged Objects by the Tank Vessel Athos I in the Delaware River on November 26, 2004 with a Major Discharge of Oil, January 2006, p. 4.

U.S. Coast Guard, "Consumer Price Index Adjustments of Oil Pollution Act of 1990 Limits of Liability—Vessels and Deepwater Ports," Federal Register Volume 74, No. 125 (July 1, 2009), pp. 31357-31369.

33 U.S.C. 2704(b).

The Department of the Interior increased this limit from $75 million to $133.65 million in December 2014 (79 Federal Register 73832, December 14, 2014).

79 Federal Register 49206, August 19, 2014.

Wilkinson, Cynthia et al., "Slick Work: An Analysis of the Oil Pollution Act of 1990," Journal of Energy, Natural Resources, and Environmental Law, 12 (1992), p. 188.

U.S. Congress, House Committee on Merchant Marine and Fisheries, Report accompanying H.R. 1465, Oil Pollution Prevention, Removal, Liability, and Compensation Act of 1989, 1989, H.Rept. 101-242, Part 2, 101^st Cong., 1^st sess., p. 35.

Omnibus Budget Reconciliation Act of 1986 (P.L. 99-509).

The CWA §311(k) revolving fund; the Deepwater Port Liability Fund; the Trans-Alaska Pipeline Liability Fund; and the Offshore Oil Pollution Compensation Fund.

Omnibus Budget Reconciliation Act of 1989 (P.L. 101-239). Other revenue sources for the fund include interest on the fund, cost recovery from the parties responsible for the spills, and any fines or civil penalties collected.

Section 405 of P.L. 110-343.

This amount is significantly less than the 4.9 million barrels estimated to have been released during the 2010 Gulf spill. See National Incident Command's Flow Rate Technical Group, press release, August 2, 2010.

For further discussion, see CRS Report R41370, Federal Civil and Criminal Penalties Possibly Applicable to Parties Responsible for the Gulf of Mexico Oil Spill, by [author name scrubbed].

Section 311(j)(1) of the 1972 CWA called for regulations to prevent the discharge of oil from vessels, onshore facilities, and offshore facilities. Executive Order 11735 (August 3, 1973) granted EPA the authority to regulate non-transportation-related onshore and offshore facilities.

U.S. EPA, "Oil Pollution Prevention: Non-Transportation Related Onshore and Offshore Facilities," Federal Register, vol. 38, no. 237 (December 11, 1973), pp. 34164-34170.

CWA §311(j)(1)(C).

See 40 C.F.R. §112.1.

P.L. 101-380, primarily codified at U.S.C. §2701 et seq.

For a comprehensive history of the regulations, see Federal Register, vol. 74, pp. 58784 (November 13, 2009).

For more information, see EPA's SPCC website at http://www.epa.gov/emergencies/content/spcc/index.htm.

These agencies replaced the former Minerals Management Service (MMS). On May 19, 2010, the Secretary of the Department of the Interior (DOI) replaced the MMS with the Bureau of Ocean Energy Management, Regulation, and Enforcement (BOEMRE). On October 1, 2011, DOI divided BOEMRE into three separate entities: the Bureau of Ocean Energy Management (BOEM), the Bureau of Safety and Environmental Enforcement (BSEE), and the Office of Natural Resources Revenue (ONRR).

For more information, see CRS Report RL33404, Offshore Oil and Gas Development: Legal Framework, by [author name scrubbed].

See "General Pipeline FAQs," at http://www.phmsa.dot.gov (accessed May 2015).

See 49 U.S.C. §60101 et seq.

For further information on pipeline legislation, see CRS Report R41536, Keeping America's Pipelines Safe and Secure: Key Issues for Congress, by [author name scrubbed].

NOAA, Office of Response and Restoration, "NOAA Continues to Support Response to Pipeline Break Spill Near Santa Barbara, California," press release, May 25, 2015, http://response.restoration.noaa.gov/about/media/noaa-assists-response-pipeline-oil-spill-refugio-state-beach-near-santa-barbara-californ.

PHMSA, "PHMSA Statement Regarding the Crude Oil Pipeline Release in Santa Barbara County, California," press release (undated), http://www.phmsa.dot.gov/pipeline/phmsa-statement-regarding-the-crude-oil-pipeline-release-in-santa-barbara-county-california.

See May 25, 2015, factsheet at the Joint Information Center website at http://www.refugioresponse.com.

For a comprehensive list of federal maritime legislation see USCG, Marine Safety Manual, Vol. IX (undated), Chapter 1, available at http://homeport.uscg.mil.

For example, the Rivers and Harbors Act of 1899, as amended (33 U.S.C. §401 et seq.), and the International Regulations for Preventing Collisions at Sea, as amended (33 U.S.C. §1601 et seq.).

P.L. 92-340, 33 U.S.C. §1221 et seq.

P.L. 95-474, codified at 33 U.S.C. §§1221-1232 and 46 U.S.C. §§3701-3718.

Most state waters extend 3 nautical miles (1 nautical mile = 6,076 feet, or 1.15 miles) from shore. Louisiana waters extend 3 imperial nautical miles (1 imperial nautical mile = 6,080 feet). Texas and Gulf Coast of Florida waters extend 3 marine leagues (equating to 9 nautical miles). See the MMS, OCS, website ("Definitions and Jurisdictions") at http://www.mms.gov/incidents/pollution.htm. See also CRS Report RL33404, Offshore Oil and Gas Development: Legal Framework, by [author name scrubbed].

The terms inland zone and coastal zone are defined in the National Contingency Plan (40 C.F.R. §300.5). The coastal zone covers all waters subject to the tide, the Great Lakes, and all seaward waters (extending 200 nautical miles beyond shore). The inland zone covers all other U.S. waters. Spills in inland waters can potentially affect coastal waters and ecosystems, particularly if the spill occurs in water systems near the coast. In fact, a fine line may separate specific inland and coastal waters (e.g., consider the nexus between a bay and a river).

For more information see NOAA's Office of Response and Restoration website, at http://response.restoration.noaa.gov/index.php.

Executive Order (EO) 12777 (October 18, 1991) delegates authorities pursuant to the Oil Pollution Act of 1990. This order was amended by EO 13286 (March 5, 2003), which reorganized duties in response to the creation of the Department of Homeland Security.

As required by OPA §4202(a), which amended CWA §311(j)(7), codified in 33 U.S.C. §1321(j)(7).

If a treaty is considered "self-executing," domestic legislation implementing the treaty is not necessary. For more details on these issues, see CRS Report RL32528, International Law and Agreements: Their Effect Upon U.S. Law, by [author name scrubbed].

For convention texts and other materials, see http://www.imo.org.

The phrase "entry into force" signifies that the requisite number of nations have ratified the convention or annex, thus making the agreed upon requirements binding for all participating nations. For more discussion of the procedures of international conventions, see the IMO website at http://www.imo.org.

All vessels of any type over 400 gross tons traveling over international waters must have a SOPEP approved by their flag state. See USCG VRP/SOPEP "FAQs" at http://www.uscg.mil/vrp.

USCG, 1997, Marine Safety Manual, Marine Environment Protection, Volume IX, p. 4-24.

P.L. 96-478, 33 U.S.C. §1901 et seq.

The Torrey Canyon, a Liberian-flagged tanker, spilled approximately 35 million gallons of crude oil.

P.L. 93-248 , 33 U.S.C. §1471 et seq.

One argument against preemption was that existing requirements under particular state laws would be diminished or negated entirely. See Benjamin Grumbles and Joan Manley, "The Oil Pollution Act of 1990: Legislation in the Wake of a Crisis," Natural Resources and Environment, 10:2 (1995), p. 38.

Dagmar Etkin, 2003, A Worldwide Review of Marine Oil Spill Fines and Penalties, at http://www.environmental-research.com/erc_papers/ERC_paper_10.pdf. See also, CRS Congressional Distribution Memorandum, "Oil Spill Liability in the Gulf States," July 2, 2010 (on file with author).

U.S. Congress, Conference Report accompanying H.R. 1465, Oil Pollution Act of 1990, H. Conf. Rept. 101-653, at 122 (1990).

Ray v. Atlantic Richfield, 435 U.S. 151 (1978).

United States v. Locke, 529 U.S. 89 (2000).

P.L. 93-627, codified at 33 U.S.C. §1501 et seq.

P.L. 93-153, codified at 43 U.S.C. §1651 et seq.

P.L. 95-372, codified at 43 U.S.C. §1801 et seq.

See EPA "National Contingency Plan Overview" at http://www.epa.gov/emergencies/content/lawsregs/ncpover.htm.

The NCP is codified at 40 C.F.R. Part 300.

See, for example, U.S. Congress, House Committee on Merchant Marine and Fisheries, Report accompanying H.R. 1465, Oil Pollution Prevention, Removal, Liability, and Compensation Act of 1989, 1989, H.Rept. 101-242, Part 2, 101^st Cong., 1^st sess., p. 32.

The two agreements under consideration were the 1984 Protocols to the International Convention on Civil Liability for Oil Pollution Damage and the Protocols to the International Fund for Compensation for Oil Pollution Damages.