Choice of law issues in marine pollution events engage federal admiralty/general maritime law, federal environmental legislation and the reserved powers of the states to protect their natural resources and economic welfare. Admiralty and general maritime law enjoyed center stage throughout the first two thirds of the last century. Federal marine pollution statutes were few and weak, and state initiatives were typically deemed preempted in all but the so-called “marine but local” cases. The equilibrium began to shift in favor of state police powers and federal environmental values in the mid-1960’s in consequence of the Supreme Court’s solicitude for the former, and Congressional passage of vigorous marine pollution states, principally the 1978 amendments to the Outer Continental Shelf Lands Act (OCSLA), and the post-Exxon Valdez Oil Pollution Act of 1990(OPA).

Concurrent with this shifting equilibrium was a line of four Supreme Court cases that radically altered a two-century old doctrine attributing admiralty jurisdiction to any maritime tort simply because it occurred on United States navigable waters. Distressed with what it variously termed the “casuistic,” “absurd,” or “fortuitous” invocation of admiralty jurisdiction and substantive law on the basis of location alone, the Court announced that, in addition to a maritime situs, admiralty jurisdiction requires a “substantial relationship” between the tortious event and a “traditional maritime activity.”

The coming decade or more of pending BP oil spill litigation will be shaped in large part by the roles and priority the federal judiciary assigns competing federal admiralty and environmental values alongside the police power of the many affected states. Conventional doctrines, as developed in the Fifth United States Circuit Court in particular, will likely favor admiralty/general maritime jurisdiction, rules and remedies. My paper disagrees, posing three countering themes: l) the BP oil spill is first and foremost an environmental event which Congress has chosen to regulate under the Property and Interstate Commerce Clauses, not the Admiralty Clause; 2) the likely tortious behavior of the blowout’s responsible parties --the drilling of an exploratory oil and gas well on the OCS-- is not “substantially related” to a “traditional maritime activity”; and 3) this determination properly limits admiralty governance to those matters for which it possesses either or both the expertise meriting this role and the institutional capacity to generate this capability. These themes are advanced not only to secure appropriate judicial outcomes in the BP litigation itself, but to serve as a basis for Congress’s anticipated revision of OCSLA and of OPA.


42 J. Mar. L. & Com. 511 (2011)


United States, Federal Water Pollution Control Act Amendments of 1972, Oil pollution of the sea -- Law & legislation, Oil spills -- Law & legislation, BP Deepwater Horizon Explosion & Oil Spill, 2010 -- Law & legislation, Oil wells -- Accidents, Deepwater Horizon (Drilling rig), Legislative bills -- United States -- History

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