Slow Damage: Saturday: May 15 Oil Spill Update

"Dammit, Fernando, why shouldn't it? Why shouldn't a corpse be transmitted by express?"

-- Malcolm Lowry, Under the Volcano

1. Impatient for Disaster.

Most news journalists are in love with the story. When the story begins, say, with a spectacular explosion followed by a continuing oil leak of historic proportions, they want to know how it all will end. If the story seems be unfolding too slowly for their tastes, they grow querulous and impatient. They want to see the disastrous climax now.

If they can't have it, then some of them turn to writing peevish headlines like the one in today's Pensacola News Journal ["Where's the Oil?"] and captious complaints like Cain Burdeau's lede for the Associated Press: "For a spill now nearly half the size of Exxon Valdez, the oil from the Deepwater Horizon disaster is pretty hard to pin down."

To be sure, Burdeau quickly returns to the objective voice of the Impartial Journalist and tells us exactly where the oil can be found, just as shown by the imagery (above) at the Center for Southeast Tropical Advanced Remote Sensing (CSTARS) of the University of Miami:

Satellite images show most of an estimated 4.6 million gallons of oil has pooled in a floating, shape-shifting blob off the Louisiana coast. Some has reached shore as a thin sheen, and gooey bits have washed up as far away as Alabama. But the spill is 23 days old since the Deepwater Horizon exploded April 20 and killed 11 workers, and the thickest stuff hasn't shown up on the coast.

Still, Mr. Burdeau can't help himself from continuing to carp, "So, where's the oil? Where's it going to end up?"

This chronic impatience well may account for the chronically lousy job journalists do with news stories that don't lend themselves to a quick wrap-up. We're thinking, for example, of global climate change, the Iraq and Afghanistan wars, Dick Cheney's still-secret meetings with oil industry executives at the outset of the George Bush administration, and the century-long collapse of the Chicago Cubs.

Like children, one suspects the attention span of journalists grows shorter with every new television season. We don't know what's to be done about it. Somehow, the news mavens must find a way to sustain their own interest in slow to develop, long-lasting disasters if the public is to be expected to pay attention.

2. Out of Sight, Out of Life.

Though the whereabouts of the oil spill may be out of sight for most journalists, that doesn't mean it's disappeared or that it's a benign presence. National Geographic points out ["Dead Zone in the Making?"] that --

Even if oil never washes up in the refuge, the region's birds may be silenced if the crude lingers deep in the Gulf of Mexico, experts say.

That's because 5,000 barrels of oil (210,000 gallons, or 794,937 liters) a day are thought to be bleeding from a damaged wellhead at the nearby site of the Deepwater Horizon rig disaster. All that oil is poisoning the less photogenic creatures—plankton, sand crabs, and fish larvae, among others—at the base of the region's food web, Schweiger noted.

If the oil spill can't be contained, the Gulf of Mexico could have another "dead zone in the making," according to Sylvia Earle, a marine biologist and National Geographic explorer-in-residence. (National Geographic News is owned by the National Geographic Society.)

As surely as disaster will follow if we continue ignoring the scientific data on global warming, BP's oil spill will have catastrophic consequences up and down the western hemisphere's food chain if Americans do not learn from it.

3. Complex Currents.

Peter Spotts of the Christian Science Monitor does a good job of describing the whys and whereabouts of the large oil lake that's been infiltrating Gulf waters for nearly a month. It's not your father's Exxon Valdez.

For anyone using the Exxon Valdez spill in Alaska's Prince William Sound as a visual reference point, it might look as though the Gulf spill so far is a dodged bullet.

But the differences between the two events are significant, cautions Michelle Wood, a marine biologist who recently became head of the ocean chemistry division of the National Oceanic and Atmospheric Administration's Atlantic and Oceanographic and Meteorological Laboratory in Miami. Not the least of those differences is the seascape into which the oil is flowing.

The Exxon Valdez spill involved a large, single, intense pulse of oil into Prince William Sound – "a shallow, near-shore environment with a rocky coast," she explains. The heavy crude had lots to cling to as it came ashore. In the Gulf, "spill" is a so-far continuous infusion of a lighter grade oil, which at least initially forms a foamy mousse rather than tarry blobs. And so far, the oil has remained far at sea.
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The system is chaotic enough that given enough time, say 90 days, oil in some form could wind up anywhere from the Mexican Coast to Palm Beach, research suggests.
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Once it reaches the surface, currents and ever-shifting winds can carry the oil just about anywhere, adds Peter Niiler, a researcher at the Scripps Institution of Oceanography in La Jolla, Calif., who has conducted extensive studies of current patterns in the Gulf.

Results of a 5-year experiment by Peter Niiler of the Scripps Institution of Oceanography in La Jolla, Calif., give some idea of who along the Gulf Coast most likely will be effected: everyone.

In a five-year experiment in the late 1990s, Dr. Niiler and a colleague dropped between 700 and 800 drifters – devices to help track currents -– into the Gulf at locations where offshore drilling was taking place.

Within 90 days, the drifters could be anywhere in the Gulf, including Mexico or even as far away as Miami Beach, he says.

4. Floating "Vessels."

Speaking of unpredictable drifting, this week hundreds of lawsuits were filed against BP, Transocean, and Halliburton over the mounting losses caused by the continuing oil spill. The oil corporations are responding with legal filings in Houston which allege that oil platform owner Transocean enjoys limited liability under an 1851 act of Congress still on the books and as owner of the oil platform its liability is limited to no more than $27 million.

1851? That's the year Herman Melville published Moby Dick! This is, as the saying goes, an argument only a lawyer could love. Transocean became a foreign company two years ago when it moved its headquarters from the U.S. to Switzerland. It owns the Deepwater Horizon rig that blew up on April 20.

Because underwater drilling rigs can be floated from one well to the next, the argument goes, it is a "vessel" at sea. Accordingly, Transocean is arguing that it is protected by "Limitation of Liability Act of 1851" and owes the entire universe of claimants no more than a grand total of $26 million and change.

Never mind that Transocean already has collected a "partial" payment of $ 401 million in insurance benefits. As the Wall Street Journal explains it:

Under the LLA of 1851, a vessel owner is liable only for the post-accident value of the vessel and cargo, so long as the owner can show he or she had no knowledge of negligence in the accident, maritime lawyers say. Since “the remains of the. . . Deepwater Horizon now lay sunken” about a mile deep in the federal waters of the Gulf of Mexico, the value of the rig and its cargo comes to no more than $26,764,083, Transocean claims in the filing. Before the accident, the rig was worth around $650 million.

Federal court procedural rules make special provision for admiralty lawsuits. Under Supplemental Rule F (9) --

The complaint shall be filed in any [Federal court] district in which the vessel has been attached or arrested to answer for any claim with respect to which the plaintiff seeks to limit liability; or, if the vessel has not been attached or arrested, then in any district in which the owner has been sued with respect to any such claim. When the vessel has not been attached or arrested to answer the matters aforesaid, and suit has not been commenced against the owner, the proceedings may be had in the district in which the vessel may be, [1] but if the vessel is not within any district and no suit has been commenced in any district, then the complaint may be filed in any district. For the convenience of parties and witnesses, [2] in the interest of justice, the court may transfer the action to any district; if venue is wrongly laid the court shall dismiss or, if it be in the interest of justice, transfer the action to any district in which it could have been brought. If the vessel shall have been sold, the proceeds shall represent the vessel for the purposes of these rules. [numerals added]

You can see where this likely is headed. One obvious point-counterpoint is [1] because "the vessel is not within any district" Transocean (and BP, following it) are seeking the oil-friendly venue of Houston, Texas. But [2] lawyers representing hundreds of individual claimants and perhaps tens upon tens of thousands of potential class members likely will be claiming "the interests of justice" require all their cases be returned to a Multi-District court panel in Louisiana.

And that is just one coupling of the arguments. There will be many more -- whether an oil rig fixed to the ocean floor is a "vessel;" if so whether it was within a federal court "district" other than Southern Texas; whether on balance "the interests of justice" of injured claimants outweigh those of needy oil companies; whether the insurance proceeds to be paid fix a minimum value for the rig; etc., etc., etc. And each of those seemingly dry procedural arguments are, in theory, subject to appeal in higher courts.

The WSJ sums up --

[I]n actuality, the Act very rarely helps companies limit liability. It can, however, allow a defendant to gain some control over the legal process, since a judge could place a stay on all pending litigation, which would then have to be refiled in the federal court where the limitation of liability was sought. Vessel owners routinely seek protection under the act following accidents at sea, lawyers said.

Pensacola Beach residents who've had experience with property insurance claims law after the hurricanes of 2004 and 2005 will recognize what's really going on here. The oil companies are sending a message: 'If you think the environmental effects of the BP oil spill are destined to last a lifetime, wait until your great-grandchildren live long enough to see the end of your lawsuit.'

Standing on the White House lawn, Barack Obama can throw all the "angry" fits he wants over the "ridiculous spectacle" of oil companies publicly blaming each other during congressional hearings. Obama is a lawyer. He knows what's really going on in the courtroom clinches. The oil companies are a tag-team, united in one purpose: to beat down all the fishermen, unemployed service workers, tourist-dependent businesses, beach front property owners, and other claimants.

They'll need a lot more from the president than angry rhetoric.