The Application of Strict Criminal Liabilities to Spillage of Oil: The Practical Impact on Effective Spill Response

The Federal Water Pollution Control Act as amended by the Oil Pollution Act of 1990 provides criminal penalties in oil spills that result from criminal activity, gross negligence or willful misconduct on the part of the spiller. Nevertheless, the Department of Justice has seen fit to reach into unrelated legislation to potentially apply strict criminal liability to any oil spill regardless of intent.Strict criminalization of accidental oil spills is demonstrably counterproductive to effective protection of the environment from the effect of spills since it poses a serious impediment to cooperation and coordination by and between those charged by law to respond to them. This impediment is particularly dangerous since it threatens the proper functioning of the inherently sensitive “troika” Unified Command Structure that has evolved in spill response management in response to OPA-90 management requirements.Introduction of strict criminal liability for accidental spills is also particularly troublesome in that it must enlist unrelated law to influence an area that has been addressed specifically by legislation designed for that purpose; legislation that has worked well in the past 30 years to both regulate the target activities while successfully achieving the objective of protecting and improving environment quality.