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Florida Law Begins Its Response to the Deepwater Horizon Oil Spill

Posted by attorney Rebecca Kendel

Currently the main priority in the Gulf of Mexico is to stop the bleeding of oil gushing into our ocean and desecrating both the human and animal worlds. This crisis has raised numerous legal problems and issues. Some of the legal issues deal with the immediate task of stopping the oil. Others, now and in the future will deal with the damage caused by the spill and preventing such a disaster from happening again.

Executive Order Issued by Florida Governor Charlie Crist

Florida is one of the states directly impacted by the spill. We have an irreplaceable ecosystem which is found nowhere else in the world. In an executive order issued on May 27, 2010 our governor Charlie Crist declared our state to be “The Fishing Capital of the World." [1] The Everglades is “unique in the world, combining both temperate and tropical flora in a widely shifting mosaic of habitats." [2] This “River of Grass" is home to rare trees, vegetation, and animals such as cypress, orchids, mangroves, wood storks, ibises, roseate spoonbills, herons, egrets, Florida panthers, alligators, crocodiles, manatees and dolphins. [3] The Everglades is also the source of virtually all of South Florida’s fresh water.

Some Everglades fishermen favorites are tarpon, largemouth bass, sheepshead, gray snapper, great barracuda, and sunfish. [4] Sheepshead and grey snappers are often found under bridges and are one of the more delectable varieties. Great barracuda are a fun fish to catch, but also dangerous and only the smaller fish are edible. Sunfish are found only in freshwater and are also good for cooking. In the Florida Keys such fish as redfish, sea trout, snook, permit, pompano, mackerel and shark are in demand.

Tarpon, bass, shark, dolphin, kingfish, marlin, sailfish and swordfish are prized in Florida fishing tournaments. Certain varieties of bass are sought by contestants in the Bass Master Classic series, such as largemouth, white, and spotted. The bass must be of a minimum length to be credited to an angler. The number and weight of an angler’s total amount of fish are tallied at the conclusion of the contest. There are many tournaments in Florida in which competitors may win thousands of dollars in prizes. The top fishing team may often win a new fishing boat.

To preserve Florida’s beloved fishing culture against the damage of the spill, Governor Charlie Crist’s May 27, 2010 order permits the Florida Fish and Wildlife Conservation Commission to “designate Free Saltwater Fishing Days for the taking of saltwater fish for noncommercial purposes in order to encourage residents and visitors to enjoy the bountiful and healthy fishing opportunities in Florida." [5] Some of these Fishing Days occurred over Memorial Day weekend and the weekend of June 5-6, 2010. The Commission has now declared that a Florida license to “catch saltwater fish from shore or a structure affixed to shore" this year will now be free as of July 1, 2010. [6]

State of Florida Department of Environmental Protection Emergency Order

On June 10, 2010 the State of Florida Department of Environmental Protection (“DEP") issued a First Amended Emergency Final Order. [7] Some of the provisions of this Order are as follows:

  1. British Petroleum (“BP") has been determined to be a responsible party for the Deepwater Horizon Oil Spill that commenced on April 20, 2010;

  2. “All efforts to contain the discharge have failed and may not succeed for an extended period of time";

  3. After DEP approval, staging areas will be authorized for the temporary processing or storage of spill-generated debris. These sites will be placed so as to avoid wetlands, beach and dune habitat, and other surface waters.

  4. No notice to DEP is required in order for BP and governmental entities to deploy temporary containment and absorbent materials to prevent the spread of, and to clean-up oil and oil contaminants, with certain instructions;

  5. With DEP approval, outlets of coastal fresh water dune lakes to the Gulf of Mexico may be closed;

  6. With DEP approval, sand dikes may be constructed on beach berms;

  7. The Order does not authorize the taking, killing or transporting of any animals protected under the Federal Endangered Species Act; and

  8. The Order shall not infringe on any private property rights of non-state owned submerged lands.

The complete Order may be found at

Lawsuit prepared by Earthjustice Against MMS and Others

On behalf of the Gulf Restoration Network, Inc. and the Sierra Club, Inc., the Tallahassee office of nonprofit environmental law firm Earthjustice has filed suit due to “the U.S. Minerals Management Service (MMS) arbitrary approval of BP's oil spill clean-up plan." [8] The lawsuit was filed on May 18, 2010 in the United States District Court for the Eastern District of Louisiana. [9]

The complaint seeks to enforce the rights of citizens of Texas, Louisiana, Mississippi, Alabama and Florida, including fishermen, environmental and fishing groups, and residents. The activities of the Gulf Restoration Network (“GRN") include commercial and recreational fishing, and environmental advocacy for the Gulf of Mexico. The Sierra Club “is a non-for-profit organization dedicated to the protection and preservation of the environment and our natural resources." Members of both GRN and the Sierra Club “use the waters of the Gulf of Mexico for recreational fishing, for recreational shellfish harvesting, and for traditional purposes such as swimming and wildlife observation, and intend to continue using those waters for those purposes in the future."

The complaint essentially alleges that the MMS approved BP’s oil spill clean-up plan on July 21, 2009, that BP “claimed it could contain any possible spill by vacuuming up over 20 million gallons of oil per day," and that “BP's actual recovery rate since the Deepwater Horizon explosion has turned out to be about two percent of that." [10]

As background, the Plaintiffs state that the Oil Pollution Act of 1990 was enacted after the Exxon-Valdez spill to require federal offshore lessees to have approved oil spill response plans in place before the MMS may approve the lessees’ exploratory plans and issue drilling permits. An oil spill response plan “must include a description of a ‘worst case discharge scenario,’ which assumes an uncontrolled blowout lasting 30 days.

In its Gulf of Mexico Regional Plan approved on July 21, 2009, BP represented among other things:

a. That the worst-case scenario associated with its exploration well would be 250,000 barrels of oil per day;

b. That its response equipment would be capable of recovering 491,721 barrels of oil per day under adverse weather conditions; and

c. That it could “disperse approximately 5500 to 7600 barrels of oil per day using chemical dispersants based on an assumption that the dispersants would be 90% effective."

However, the complaint alleges that when MMS approved BP’s Gulf of Mexico Regional Plan, MMS knew that containment and recovery of oil in a deep water drilling location “is at best minimal and at worst negligible." According to MMS’ website at the time, only 10-15% of the spilled oil can be contained and recovered at best. The Plaintiffs state that MMS knew that the application of disbursements is effective on only 33% of treated oil. Despite this knowledge, MMS approved BP’s Gulf of Mexico Regional Plan.

Earthjustice attorney David Guest is quoted as saying "Other BP rigs in the Gulf are relying on the same deceptive response plan…BP's clean-up story was as phony as a three dollar bill" [11] and ““It is actually easier to get a permit for an offshore oil well than for a hot dog stand." [12] There are currently at least five exploration plans relying on BP’s Gulf of Mexico Regional Plan, and approvals to drill new wells have been granted on two of them. [13] The complaint filed by Earthjustice seeks to declare BP’s response plan unlawful and bar any exploration plans or permits based on the current plan.


The responses to this disaster will continue for years in global law and society. Florida law will continue its swift and determined response to the spill, both through state laws and federal laws which have been instrumental to environmentalists in defending the Everglades.




[4] Interview with James E. Taylor, Florida recreational fisherman for 38 years, June 14, 2010.



[7] www.**dep**\_emergency\_final\_order.pdf







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