Richard StewartOn September 28 University Professor Richard Stewart, John Edward Sexton Professor of Law and director of the Frank J. Guarini Center on Environmental and Land Use Law, testified before the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling in Washington, D.C.

Drawing on his experiences as an assistant attorney general in the U.S. Department of Justice, where he prosecuted Exxon for the Exxon Valdez oil spill, Stewart laid out key legal issues the government faces in seeking justice against BP for the Gulf of Mexico spill. The main areas of consideration, he said, entail criminal penalties, civil penalties, and natural resource damages.

Back in the 1990s, Stewart recalled, the government had resolved the Exxon case with an umbrella settlement that covered all three of those areas. He recommended a similar approach to BP. While Exxon’s case involved primarily the federal government and Alaska, the players in the BP spill are more numerous and include five states, the federal government, and Native American tribes.

Stewart indicated that neither BP nor those with claims against it would benefit from prolonged litigation, which he estimated would take at least 20 years to work its way through the courts. “You have a panoply of very powerful claims by the government here for very, very large sums of money, but at least parts of it are subject to very large uncertainties, and this should help drive a global settlement of this case.”

Another issue, Stewart said, involved how to determine a baseline for restoring the Gulf region to its pre-spill state, given the various sources of environmental degradation to which it had already been exposed. Establishing which harm had been caused by BP, he suggested, will “have to be a much looser and more general exercise.”

Posted on September 29, 2010