The Macondo Well Blowout: Taking the Outer Continental Shelf Lands Act Seriously

Four elements are necessary to constitute the BP Macondo well blowout an admiralty tort engaging admiralty jurisdiction: 1. The Deepwater Horizon must be a "vessel."2. The movement of the oil from the OCS subsoil into superadjacent waters must, of itself, transform an Outer Continental Shelf Lands Act (OCSLA) event into an admiralty event.3. OCS drilling operations must be substantially related to a traditional maritime activity under the Executive Jet/Grubart U.S. Supreme Court principle.4. OCSLA Sec. 1333(a)(1)'s coverage of "temporarily attached" devices must lack substantive force, i.e., fail to overcome the characterization of the Deepwater Horizon as falling within non-OCSLA supervening admiralty jurisdiction.This paper argues that it is more likely than not, despite the contrary August 29, 2011 position of Judge Barbier in the Macondo Multi-District litigation (E.D. La.), that the Macondo blowout satisfies none of these conditions. The paper is premised principally upon an in-depth examination of OCSLA as originally passed in 1953, and as subsequently amended in 1978 and 1990. It argues that in order to protect and expand its admiralty jurisdiction as home to the nation's largest port (New Orleans), the Fifth Circuit has consistently defined these boundaries as they bear on OCS events in a manner hostile to Congressional intent and to the Supreme Court's interpretation of that intent, to OCSLA's text and to the Court's line of authority from Executive Jet to Grubart requiring a "substantIal relationship between the activity underlying the tort's occurrence and traditional maritime activity."As to the four elements:1. The Deepwater Horizon's status is governed by federal statute which in OCSLA and the Oil Pollution Act of 1990 (OPA) do not designate the Deepwater Horizon as a "vessel," but as a mobile offshore drilling unit (MODU), which when serving "in the capacity of an offshore facility" (as it was in the Macondo incident) is not a "vessel." The statutes (as well as federal agency regulations that similarly reject equating a MODU temporarily attached to the OCS seabed with a "vessel") override the general maritime law concept of a vessel which is premised solely on the mobility of the drilling or dredge barge as in Grubart.2. Under Kleppe v. New Mexico and Minnesota v. Block, Congress may regulate areas offsite of its public lands (like the OCS) if necessary to protect its interest in those lands. Consequently, OCSLA's jurisdiction extends to superadjacent waters as a basis for protecting the federal proprietary interest in the OCS seabed and its resources. As amended in 1978, OCSLA became an environmentally protective statute designed to offset littoral states' political pressures for drilling moratoria and other obstructions to the federal government's leasing of OCS blocks and the attendant receipt of national revenues (second only to federal taxes as a source of these revenues). Hence, an event blowout commencing on an OCS situs remains under OCSLA's coverage for such resource protective activities as clean-ups, the imposition of civil liability via OPA, and similar regulatory purposes.3. OCS drilling is not substantially related to a traditional maritime activity because both Congress and the Supreme Court have for a half century rejected this characterization of the supposed relationship.4. The claim that OCSLA Sec. 1333(a)(1) lacks substantive force while Sec. 1333(a)(2)(a) [the provision that in Fifth Circuit jurisprudence situates admiralty law as OCS default law enjoys substantive force] is untenable as a matter both of OCSLA's legislative history, its text and of pertinent Supreme Court jurisprudence.