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Volume XI, Number 289

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Hurricane Ida and OPA’s Acts of God

A significant number of oil spills have been reported in the wake of Hurricane Ida’s passage over the Gulf of Mexico and south Louisiana. Does a major hurricane like Ida qualify as an “act of God” under the Oil Pollution Act so as to provide a defense to spill liability? This post examines the act of God defense under the Oil Pollution Act.

The act of God defense under OPA is narrowly defined.

The Oil Pollution Act of 1990 (OPA) established strict liability for owners and operators of facilities and vessels that discharge oil into or upon the navigable waters and adjoining shorelines of the United States. Under OPA, a responsible party — generally the owner or operator of a facility or vessel — is liable for all removal costs and damages resulting from the spill. 33 U.S.C. § 2702(a).

Under 33 U.S.C. § 2703(1), however, a responsible party is not liable for removal costs or damages under OPA if the responsible party establishes by a preponderance of the evidence that the spill was caused solely by “an act of God.” The phrase “act of God” is defined by OPA as “an unanticipated grave natural disaster or other natural phenomenon of an exceptional, inevitable, and irresistible character the effects of which could not have been prevented or avoided by the exercise of due care or foresight.” 33 U.S.C. § 2701(1). Importantly, if a potentially responsible party can establish the act of God defense, it is also entitled to recover its own response costs from the Oil Spill Liability Trust Fund (OSLTF). 33 U.S.C. § 2708(a).

Would Hurricane Ida be considered an unanticipated grave natural disaster of an exceptional, inevitable, and irresistible character?

Under the case law, the OPA act of God defense is construed very narrowly. Although a major hurricane may be an act of God, unless it occurs in an area where and at a time when a hurricane should not be expected, it would not qualify as a phenomenon of exceptional character. See Apex Oil Co. v. United States, 208 F. Supp. 2d 642, 652-54. In other words, the act of God defense under OPA was not intended to encompass every natural disaster that may occur.

Although Hurricane Ida was a major hurricane, it occurred in the Gulf of Mexico during hurricane season and therefore would not qualify as an act of God under OPA.

Is there any other defense that may be available in connection with Hurricane Ida?

On the other hand, although Hurricane Ida by itself is unlikely to qualify as a defense to liability under OPA, if the spill was caused not by Hurricane Ida but by a third party’s failure to prepare for Ida, that third party’s fault may provide a potentially responsible party both with a defense to liability and with cost recovery from the OSLTF. For example, if a third party failed to secure a vessel and the vessel broke loose in the hurricane and then collided with a facility causing an oil spill, the potentially responsible party may be entitled to relief. Because the facts and circumstances of each spill may be different, it is important to involve experienced counsel in determining whether a defense under OPA or a claim under the OSLTF may be available.

© 2021 Jones Walker LLPNational Law Review, Volume XI, Number 259
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About this Author

Elise Henry, Lawyer, Jones Walker Law Firm, Environmental Compliance
Associate

Elise Henry is an associate in the firm's Business & Commercial Litigation Practice Group and practices in the firm's New Orleans office. Ms. Henry focuses her practice on environmental regulatory compliance and litigation.

Before joining Jones Walker, Ms. Henry has represented title insurance companies, insured lenders, contractors, developers, condominium associations, and individuals in litigation related to title insurance claims and curative actions, construction, landlord/tenant disputes, evictions, purchase agreements, and other real...

504-582-8165
Robert Holden, Jones Walker Law Firm, New Orleans, Environmental Law Attorney
Partner

Robert Holden is a partner in the firm's Environmental Practice Group. Drawing on his deep understanding of the law and fortified by decades of experience in the field, he provides clients with practical, lawful solutions to environmental and other legal challenges, including regulatory compliance and enforcement actions, responses to spills and other industrial accidents, and commercial litigation. Mr. Holden's clients include energy, chemicals, manufacturing, and other clients with significant operations across the southeastern United States and in the Gulf of Mexico...

504-582-8139
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