Monday, January 21, 2013

OBAMA 2.0: the second inaugural speech and transformative affirmation of the power of we, the people!

“America’s possibilities are limitless, for we possess all the qualities that this world without boundaries demands: youth and drive; diversity and openness; an endless capacity for risk and a gift for reinvention.” – President Obama – 2nd Inaugural Speech


In a nutshell, here is the transformation coming to America courtesy of Obama 2.0. In case you missed it, the 44th President of the United States of America second inaugural address could be summed up in the following points: We, the People…seek: 1) National Unity and Unity of Purpose; 2) Gun Safety Control; 3) Reduction of Health and Medicare Cost; 4) Action on Climate Change; 5) Comprehensive Immigration Reform; 6) Better Budget Process; 7) Security & Dignity of all People; and 9) Total Rejection of notion that we cannot invest in our elders while still building a better future for our children! But by seeking these objectives, the President called for the involvement of everyone, not only the blogger-sphere. – a very laudable request or observation from a President, who many times has acknowledged that he stood on the shoulders of many who came before him, one of whom he took a moment or two to visit his burst in the rotunda of congress, while celebrating his second inaugural address. That visitation was probably meant to acknowledge the sacrifice and contribution of Dr. Martin Luther King’s Jr. for progressive thoughts.

It is befitting that this inaugural speech fell on a National Holiday for Dr. Martin Luther King, Jr., whom the President quoted somewhat in his articulation of a future for American in the coming years. The spirit and favor of the great civil rights hero, is articulated in Obama’s speech in a way best emblematic of the struggle of the civil rights era. He calls that we take care of the less privileged among us. OBAMA 2.0 is a reflection of the type of transformation contemplated for America during the civil rights era; and one, gratified in President Obama's second campaign for the White House Oval Office. An aspiration embolden by the President's support by million of Americans who share his vision. An aspiration also rooted in modern day liberal ideology; and/or organically evolving belief that each of us is our brother’s keeper.

If you are apolitical, the trans-formative proposal the President is offering is probably going to get you or some Republicans irate because of their past indisposition to the liberal title of his argument. Republicans eschews change for America; however, not in the context of the President’s reflection in this second inaugural speech. By now, members of the tea party or the whole Republican Party members in congress, are probably understudying and devising means to arbitrarily undermine the whole structure of OBAMA 2.0. The simple fact though is this, the President has been elected to a second term with a plurality of the voters over the 52% threshold; and, his electoral college vote of over three hundred and thirty, is rather impressive. Thus, you could admonish the naysayers that, WE, the people have spoken; and any opposition to OBAMA 2.0, must be tempered with some humility.

Here is the full text of the President Speech as released by the White House Press Office:

"Vice President Biden, Mr. Chief Justice, Members of the United States Congress, distinguished guests, and fellow citizens: 

Each time we gather to inaugurate a president; we bear witness to the enduring strength of our Constitution. We affirm the promise of our democracy. We recall that what bind this nation together is not the colors of our skin or the tenets of our faith or the origins of our names. What makes us exceptional – what makes us American – is our allegiance to an idea, articulated in a declaration made more than two centuries ago: 

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness.” 

Today we continue a never-ending journey, to bridge the meaning of those words with the realities of our time. For history tells us that while these truths may be self-evident, they have never been self-executing; that while freedom is a gift from God, it must be secured by His people here on Earth. The patriots of 1776 did not fight to replace the tyranny of a king with the privileges of a few or the rule of a mob. They gave to us a Republic, a government of, and by, and for the people, entrusting each generation to keep safe our founding creed. 

For more than two hundred years, we have.
Through blood drawn by lash and blood drawn by sword, we learned that no union founded on the principles of liberty and equality could survive half-slave and half-free. We made ourselves anew, and vowed to move forward together. 

Together, we determined that a modern economy requires railroads and highways to speed travel and commerce; schools and colleges to train our workers.

Together, we discovered that a free market only thrives when there are rules to ensure competition and fair play. 

Together, we resolved that a great nation must care for the vulnerable, and protect its people from life’s worst hazards and misfortune. 

Through it all, we have never relinquished our skepticism of central authority, nor have we succumbed to the fiction that all society’s ills can be cured through government alone. Our celebration of initiative and enterprise; our insistence on hard work and personal responsibility, these are constants in our character. 

But we have always understood that when times change, so must we; that fidelity to our founding principles requires new responses to new challenges; that preserving our individual freedoms ultimately requires collective action. For the American people can no more meet the demands of today’s world by acting alone than American soldiers could have met the forces of fascism or communism with muskets and militias? No single person can train all the math and science teachers we’ll need to equip our children for the future, or build the roads and networks and research labs that will bring new jobs and businesses to our shores. Now, more than ever, we must do these things together, as one nation, and one people. 

This generation of Americans has been tested by crises that steeled our resolve and proved our resilience. A decade of war is now ending. An economic recovery has begun. America’s possibilities are limitless, for we possess all the qualities that this world without boundaries demands: youth and drive; diversity and openness; an endless capacity for risk and a gift for reinvention. My fellow Americans, we are made for this moment, and we will seize it – so long as we seize it together. 

For we, the people, understand that our country cannot succeed when a shrinking few do very well and a growing many barely make it. We believe that America’s prosperity must rest upon the broad shoulders of a rising middle class. We know that America thrives when every person can find independence and pride in their work; when the wages of honest labor liberate families from the brink of hardship. We are true to our creed when a little girl born into the bleakest poverty knows that she has the same chance to succeed as anybody else, because she is an American, she is free, and she is equal, not just in the eyes of God but also in our own. 

We understand that outworn programs are inadequate to the needs of our time. We must harness new ideas and technology to remake our government, revamp our tax code, reform our schools, and empower our citizens with the skills they need to work harder, learn more, reach higher. But while the means will change, our purpose endures: a nation that rewards the effort and determination of every single American. That is what this moment requires. That is what will give real meaning to our creed. 

We, the people, still believe that every citizen deserves a basic measure of security and dignity. We must make the hard choices to reduce the cost of health care and the size of our deficit. But we reject the belief that America must choose between caring for the generation that built this country and investing in the generation that will build its future. For we remember the lessons of our past, when twilight years were spent in poverty, and parents of a child with a disability had nowhere to turn. We do not believe that in this country, freedom is reserved for the lucky, or happiness for the few. We recognize that no matter how responsibly we live our lives, any one of us, at any time, may face a job loss, or a sudden illness, or a home swept away in a terrible storm. The commitments we make to each other – through Medicare, and Medicaid, and Social Security – these things do not sap our initiative; they strengthen us. They do not make us a nation of takers; they free us to take the risks that make this country great. 

We, the people, still believe that our obligations as Americans are not just to ourselves, but to all posterity. We will respond to the threat of climate change, knowing that the failure to do so would betray our children and future generations. Some may still deny the overwhelming judgment of science, but none can avoid the devastating impact of raging fires, and crippling drought, and more powerful storms. The path towards sustainable energy sources will be long and sometimes difficult. But America cannot resist this transition; we must lead it. We cannot cede to other nations the technology that will power new jobs and new industries – we must claim its promise. That’s how we will maintain our economic vitality and our national treasure – our forests and waterways; our croplands and snowcapped peaks. That is how we will preserve our planet, commanded to our care by God. That’s what will lend meaning to the creed our fathers once declared. 

We, the people, still believe that enduring security and lasting peace do not require perpetual war. Our brave men and women in uniform, tempered by the flames of battle, are unmatched in skill and courage. Our citizens, seared by the memory of those we have lost, know too well the price that is paid for liberty. The knowledge of their sacrifice will keep us forever vigilant against those who would do us harm. But we are also heirs to those who won the peace and not just the war, who turned sworn enemies into the surest of friends, and we must carry those lessons into this time as well. 

We will defend our people and uphold our values through strength of arms and rule of law. We will show the courage to try and resolve our differences with other nations peacefully – not because we are na├»ve about the dangers we face, but because engagement can more durably lift suspicion and fear. America will remain the anchor of strong alliances in every corner of the globe; and we will renew those institutions that extend our capacity to manage crisis abroad, for no one has a greater stake in a peaceful world than its most powerful nation. We will support democracy from Asia to Africa; from the Americas to the Middle East, because our interests and our conscience compel us to act on behalf of those who long for freedom. And we must be a source of hope to the poor, the sick, the marginalized, the victims of prejudice – not out of mere charity, but because peace in our time requires the constant advance of those principles that our common creed describes: tolerance and opportunity; human dignity and justice.

We, the people, declare today that the most evident of truths – that all of us are created equal – is the star that guides us still; just as it guided our forebears through Seneca Falls, and Selma, and Stonewall; just as it guided all those men and women, sung and unsung, who left footprints along this great Mall, to hear a preacher say that we cannot walk alone; to hear a King proclaim that our individual freedom is inextricably bound to the freedom of every soul on Earth. 

It is now our generation’s task to carry on what those pioneers began. For our journey is not complete until our wives, our mothers, and daughters can earn a living equal to their efforts. Our journey is not complete until our gay brothers and sisters are treated like anyone else under the law – for if we are truly created equal, then surely the love we commit to one another must be equal as well. Our journey is not complete until no citizen is forced to wait for hours to exercise the right to vote. Our journey is not complete until we find a better way to welcome the striving, hopeful immigrants who still see America as a land of opportunity; until bright young students and engineers are enlisted in our workforce rather than expelled from our country. Our journey is not complete until all our children, from the streets of Detroit to the hills of Appalachia to the quiet lanes of Newtown, know that they are cared for, and cherished, and always safe from harm.

That is our generation’s task – to make these words, these rights, these values – of Life, and Liberty, and the Pursuit of Happiness – real for every American. Being true to our founding documents does not require us to agree on every contour of life; it does not mean we all define liberty in exactly the same way, or follow the same precise path to happiness. Progress does not compel us to settle centuries-long debates about the role of government for all time – but it does require us to act in our time. 

For now decisions are upon us, and we cannot afford delay. We cannot mistake absolutism for principle, or substitute spectacle for politics, or treat name-calling as reasoned debate. We must act, we must act knowing that our work will be imperfect. We must act, knowing that today’s victories will be only partial, and that it will be up to those who stand here in four years, and forty years, and four hundred years hence to advance the timeless spirit once conferred to us in a spare Philadelphia hall. 

My fellow Americans, the oath I have sworn before you today, like the one recited by others who serve in this Capitol, was an oath to God and country, not party or faction – and we must faithfully execute that pledge during the duration of our service. But the words I spoke today are not so different from the oath that is taken each time a soldier signs up for duty, or an immigrant realizes her dream. My oath is not so different from the pledge we all make to the flag that waves above and that fills our hearts with pride. 

They are the words of citizens, and they represent our greatest hope. 

You and I, as citizens, have the power to set this country’s course.

You and I, as citizens, have the obligation to shape the debates of our time – not only with the votes we cast, but with the voices we lift in defense of our most ancient values and enduring ideals. 

Let each of us now embrace, with solemn duty and awesome joy, what is our lasting birthright. With common effort and common purpose, with passion and dedication, let us answer the call of history, and carry into an uncertain future that precious light of freedom.

Thank you, God Bless you, and may He forever bless these United States of America.”
 – President Barack Obama, January 21, 2013

Most political observers acknowledge that the substantive speech is comparatively short; yes, who needs an unwinding speech that does not show a sense of purpose. The speeches, prayers and activities of the second presidential inauguration of Barack Hussein Obama II, just like others before his, validate America as a nation of laws, where people put their trust in one of theirs, every four years, to bring about change, whichever way. No selfish ideology or political philosophy has ever undermined this aspiration in over two and a half centuries of the Republic; and, none will ever hamper the smooth transition from one elected President to another in America, as long as the sun shines. As long as we render the banner: “Oh beautiful for spacious sky…, the will of the plurality of the people will always prevail. As long as we believe that all of us are created equal as enshrined in the constitution, there will always be a time and day to celebrate the joy of life, liberty and the pursuit of happiness in this democracy.

So, for those who are so apprehensive, I recommend we give OBAMA 2.0 a chance to thrive, at least for the sake of .... WE THE PEOPLE!

Saturday, January 5, 2013

BP Oil Spill: Transocean reaches Deal with US DOJ without anyone going to the Slammer!

"This resolution of criminal allegations and civil claims against Transocean brings us one significant step closer to justice for the human, environmental and economic devastation wrought by the Deepwater Horizon disaster." - Attorney General Eric Holder

In case you are wondering if Transocean recalcitrance from reaching a deal with British Petroleum on the disaster at Macondo well paid off for the company. Oil and Gas futures and industry analysts will tell you, probably not, if not a resounding, No! The company’s recalcitrance on the extent of its liability, both against U.S. Regulators and Executives at British Petroleum, did more harm to the company’s bottom line and reputation as partner in oil and gas production exploration. The exception probably comes from the numerous agreements initially entered by the company with British Petroleum. What may Oil and Gas industry leaders learn from this long standing acrimony between Transocean and British Petroleum on the one hand; and, the United States Regulators on the other hand? 

Two and a half years after the Deepwater Horizon rig explosion, Transocean, the operator of Macondo well, agrees to a two year One billion dollar civil penalty; and, an additional 400 million dollars for criminal liability for its part in violation of parts of the Clean Water Act. Any exception on this agreement entered with the United State Department of Justice by the Switzerland headquartered Transocean, may come up for review; and, the company is still not out of the woods with respect to economic losses by residents of the Gulf Coast States and British Petroleum. What is unique about this agreement is that, safety of employees and training with respect to environmental impact of operations, are taken into consideration in apportioning blame and restitution for a disastrous explosion on a work site, resulting in deaths.

As provided for in OPA 90, the Rivers and Harbors Act 1899 (Refuse Act) or the Clean Water Act, facilities operator like British Petroleum can protect themselves from economic liability of contractors’ negligence by requiring contractors to carry insurance in full contract details; regarding possible mayhem similar to what happened at Macondo well. A prudent operator may insist that without an insurance coverage of contractors’ activities, it is not going to do business with the contractor. For example, in addition to compliance with federal, state and local government requirements, regarding operations like securing a well taking storage of industrial liquids, or black gold flowing into Macondo well, British Petroleum, principal facility operator, may refuse to do business with Transocean, the contractor. For Transocean failures to secure the Macondo well, the company is now responsible for claims pending in courts from British Petroleum and Gulf States’ resident in addition to its agreement with the United States Department of Justice.

The moral of this settlement is that a company may be held liable for negligence to secure a storage port for black gold, even if it takes directives from the Owner of the well, like British Petroleum. U.S. Department of Justice may not have totally mitigated the complete loss to British Petroleum and residents of the Gulf States from the failure of Transocean to secure the Macondo well. Transocean was expected to exert some control over the stability of the well and consequential exposure that led to the sinking of the well. Notwithstanding British Petroleum engineer's inability to stop the oil flow from the the Deepwater Horizon rig, Transocean is probably still responsible for additional cost associated with environmental damage to Gulf Coast; including pollution of the beaches, fishing grounds and marshes. In the opinion of United States Justice Department, Transocean failed to fully investigate clear signs that Macondo well was insecure as oil and gas flowed into the well from Deepwater Horizon one mile deep; and, fifty miles off the coast of Southern Louisiana. The extent of economic or financial liability to British Petroleum and residents of the Gulf Coast are likely to be further resolved in the court of law, if an arbitration is not completed between the parties.

Further, Halliburton, the company providing cement services at the Macondo well, will fork out additional restitution, in addition to the money it had already plucked down to British Petroleum. Culpable liability in the case of negligence of the Transocean may have made Halliburton liable for environmental damage, just as British Petroleum. For the records, prior agreements between Halliburton and British Petroleum regarding restitution for economic loss may have an implication for further financial obligation to residents of the five Gulf Coast States.

In addition to February 2012 Transocean shareholders’ woes of not receiving dividend due to close to 6 billion investment loss, most of which are attributed to contingencies surrounding the sinking of the Macondo well, the company agreed to spill prevention and training for employees on projects as part of its liability at Macondo well, in its agreement with the US Department of Justice. The extended obligations in the agreement emanate from legal conclusion that Transocean was negligent in the deaths of the eleven workers from the spill at Macondo well, just as British Petroleum and other parties on the project.

Now, the good news for Transocean in this settlement over the provisions of OPA 90 and the 1972 Federal Water Pollution Control Act Amendment are twofold: 1) According to the provisions of OPA 90, the operator of a facility receiving liquid (oil) from a vessels or drill source is deemed responsible for associated negligence; however, the facility operator may turn around and sue the negligent owner of the rig (British Petroleum) for indemnity. 2) Unlike the two British Petroleum workers, Donald Vidrine and Robert Kaluza, facing criminal liability that will end their career in a slammer, no Transocean employee is facing criminal liability or its probability. This probably is the ray of hope for Transocean in the settlement with the US regulators.

Unequivocally, the abandoned Deepwater Horizon rig under the threat of explosions and deaths remains the burden of British Petroleum. The ultimate cost of the clean up of the oozing oil remains the obligation of the company. Under section 1002(a) of OPA-90, British Petroleum is liable for the specified damages resulting from the discharged oil into the Gulf of Mexico, so also, is the cost for the removal or dispersion as the case maybe, for additional environmental cost damage resulting from the incident of April 20, 2010. Thus, while Transocean has borne some burden for the cost of the damage from the Deepwater Horizon disaster, the ultimate cost of violation of public law emanating from the worst oil spill disaster in US history, lies with British Petroleum.

What other things may members of the Oil and Gas Industry learn from this unfortunate experience? 

1) Operators of facilities receiving and storing liquid black gold has responsibility to take custody of the product; however, it shares some liability where violation of the provisions of OPA-90, the Rivers and Harbors Act 1899 (Refuse Act) or the Clean Water Act (Federal water Pollution Control Act Amendment of 1972), are concerned;

2) Contractors on oil and gas drilling exploration may stand up and get on about their business after a horrendous disaster; however, majority of the liability regarding a disaster remains with the owner of the rig or licensee from the US government;

3) A non-operating interest in an oil and gas exploration prospecting may be financially liable under signed contracts agreement, even if it does not have an immediate representation at the accidental explosion site; Anadarko Petroleum is a case in point with respect to what went down at the Deepwater Horizon rig and or Macondo well.

4) There is hefty cost to pay for negligence; and for the first time, it could involved jail time for executives and or employees of the oil and gas exploration; and, the threshold to prove negligence may be as low as the US regulators choose or abide with, regarding legal provisions on the books; and,

5) Oil and Gas exploration is still a very risky business; and, there is need for the protection of employees who lay their live on the line everyday to find the carbon-based source of energy.

Thursday, January 3, 2013

A Special Note to the 113th Congress: The Unfinished Business of Spill-related Legislation after the BP Oil Spill?

Keywords or Terms: H.R. 2383; 113th Congress Urgent Agenda; BP Oil Spill; Louisiana Offshore Platform Disaster; Emergency Clean Up; Torts; First Responders; Offshore Oil Spills; and, Bureau of Safety and Environmental Enforcement (BSEE).

Were the various acrimonious disagreements and schisms in the 112th congress, the bane(s) that delayed spill related legislation(s) since the deepwater horizon disaster? What does recent congressional gridlock or soft footing on the fiscal cliff imply for oil-spill related legislation? Will a fresh start with the 113th congress exacerbate or hinder needed legislation on tort claims from responders' performance in a cleanup after an oil spill? Why haven’t Congress enacted bill(s) to address many of the shortfalls in current laws; or, from incident reports consequent to BP Oil spill in the Gulf of Mexico? Will the 113th stand up to address this issue; or will it allow this opportunity to slip?

The answers to these questions lie partially in the hands of the newly sworn in congressional lawmakers of the 113th Congress. BP Deepwater off-shore oil spill and recent shallow-water production offshore platform disaster in Louisiana beg for legislative attention, especially regarding tort claims surrounding the work of first responders in the aftermath of a spill or environmental disaster. The associated deaths with recent disasters in the oil and gas industry directly points to two things: 1) the oil and gas industry may have learned a thing or two about emergency clean-up response consequent to a huge environmental disaster or oil spills; 2) clean-up efforts after huge disasters require thousands of responders working several months to manage the mayhem associated with horrendous offshore oil spills. Just as important as other legislation regarding oil and gas production and expansion of offshore and onshore drilling activities, in the drive to run up production levels of this carbon-based energy source, so also are the unfinished businesses regarding responders liability, manufacturers of spill containment chemicals liability, compensation infrastructure arrangement and personnel training regarding management of huge oil and gas spills in the field.

The new understanding of emergency management consequent to BP Oil spill and other subsequent disasters associated with oil and gas explorations, including the 30-inch pipeline burst near Marshall, Michigan, where over 800,000 gallons of crude oil were turned into the Talmadge Creek, a water way to the Kalamazoo River, indicate that new legislation are needed with respect to Safety and Environmental Management in offshore operations. Without new legislation or retooling existing provisions in laws addressing Oil pollution as conceived in 1970 and 1990, employee safety, torts’ provisions and employee safety training with respect to managing the huge aftermath of environmental disasters, will continue to lag. The onus is for the 113th Congress to act; even though the outgoing congress scratched the surface of putting together some provisions as envisaged in H.R. 2383. Unfortunately, this bill is still lying on the cue or schedule of legislation needing urgent congressional attention, before becoming law.

Despite the fact that the Bureau of Safety and Environmental Enforcement (BSEE) has began implementing the SEMS program, including: 1) focusing on human errors and impact of poor organizational safety practices in, and after, an accidental oil and gas spill or incident; 2) supporting the improvement of offshore oil and gas drilling safety and environmental records; 3) encouraging performance-based operating practices; and 4) collaborating with the oil and gas industry participants to promote offshore worker safety and environmental protection, there are still no legislation addressing the issue of protracted litigation filed again first responders, torts associated with chemical materials used to manage excessive pollution migration from the location of incident or spill, and the types of response actions covered by immunity under the 1970 and 1990 laws. Without added provisions or retooling of some of the languages in the Oil Pollution Act of 1990, there is hardly any better way, to address the issue of first responders liability or the full weight of obligations of responders in the event of managing oil and gas spills with manufactured chemicals or protocols to address the immediate consequence of similar disaster to what we had in the Gulf of Mexico two and a half years ago. 

Here is where the 113th congress can make a difference by moving forward H.R. 2383, Coast Guard and Maritime Transportation Act of 2011 (November 15, 2011; September 22, 2012). The new congressional class can take the initiative to address those bottlenecks that have made this act lag in both chambers of congress; by resolving those challenges regarding immunity protection for first responders under the Oil Pollution Act of 1990. Based on existing provisions of the Oil Pollution Act of 1990, first responders suffer huge legal costs and ramification with regard to how they respond, handle, and or manage huge spills; including the type of dispersant used for managing the aftermath of pollution. The experiences under the BP oil spill in the Gulf of Mexico show that containment resources during national emergencies to mitigate size of disaster’s environmental damage impact are limited for first responders, because of the fear of consequent litigation and liability associated with managing huge spills similar to Deepwater Horizon’s.

Further developments since the BP Oil spills have shown that, despite the Oil and Gas industry initiative to get prepared for managing huge oil spills, there are still no cautious effort to gather full information regarding near-misses, so the industry does not have to wait for an accident to occur or repeat itself, before recognizing the safety lapses. The Coast Guard and Maritime Transportation Act of 2011 attempts to demand better expediency in the industry; however, since it is being held up in congress, no one knows the full extent to which it has addressed all the concerns and challenges associated with the aftermath of the BP oil Spill or similar disaster. Despite the commendable clean-up effort during the BP Oil Spill Mayhem, no specific congressional initiative has addressed the issue of the first responders' liability after an incident; or the extent of responders’ immunity in the use of land-based hazardous substance spill to manage extent of environmental damage. 

Depending on one’s perspective, the break up of the Bureau of Ocean Energy Management, Regulations and Enforcement (BOEMRE) in October 2011, was a welcome effort from the government after the BP’s Oil spill or mayhem. In retrospect, there is evidence showing that the size of spill and the poor organizational management of the aftermath of a spill may prevent first responders from doing an adequate job in managing imminent danger associated with the spill. There is already litigation in courts calling first responders to answer to questions regarding the use of dispersants and the probably consequential impact on adjacent residents’ health in the impact area. Resolving this litigation will require new play book, one that is hardly available to the courts, except working on existing laws to resolve a very thorny issue, regarding safety and industrial accident management.

Today, little information is being compiled regarding accidental performance trend; and many organizations in the industry are still not paying attention to tracking individual accidental performance with respect to the industry “averages”. This probably will continue to compound the problems of associated industrial accidents that lead to employees’ deaths in the industry, especially regarding offshore oil and gas explorations.

There are many leaders in the industry who find this problem unacceptable and will like some legislation to compel the industry to track also, not just the spills, but also the near misses on the platforms to help track better accidental and potential accidental occurrence in the explorations of oil and gas. This is believed to be a better assessment of the industrial accidents experienced in the offshore platform drilling. It is also imperative that our lawmakers give the courts and industry what are their limitations, obligations and probably constraints with respect to the type of resources used for managing accidental disasters.

The current laws regarding liability under the Oil Pollution act, the Federal Water Quality Improvement Act of 1970 and Oil Pollution Act of 1990, have been criticized as inadequate and needing of revision in light of the experience of the blowout at BP Deepwater Horizon disaster. The immunities under both laws are seen as inadequate for protecting first responders, as they allow injured parties to recover full damages, even after paying for the removal costs of pollution.

While I completely do not share the argument that first responders may be negligent or act willfully of misconduct under current dispensation regarding personal injury and wrongful deaths with respect to offshore drilling or managing the aftermath impact of environmental disaster, it is my opinion that the short fall in both Federal Water Quality Improvement Act and Oil pollution Act of 1990, needs to be visited and re-visited, where necessary, by the 113th Congress. Three reasons for these visitation and further legislation are found in: 1) the argument that EPA-approved dispersants used to treat excessive spill put the first respondents at liability disadvantage, due to the tort claims and unintended consequence of using some resources for managing the huge size of the environmental disaster; 2) the argument that current settlements provision for restoration of fish, wildlife and people are still not up to snuff, under the natural resource damage assessment and restoration provisions, this essentially came out of the experience of the San Francisco Cosco Busan Oil spill; and, 3) complainants or affected parties in a spill zone(s) allege various torts due to personal injuries from dispersant used; this tort bundled, could extend tort claims to manufacturers of dispersant or other resources used for breaking down oil and gas, including aircraft companies spraying the dispersant and the contractors involved in managing the clean up of the environmental disaster.

If there was anything good about the BP Oil spill of 2010, we now know that the preceding laws under the Oil Pollution Act, the Federal Water Quality Improvement Act of 1970 and Oil Pollution Act of 1990, have several shortcomings; a few of which were hardly contemplated before the BP Deepwater Horizon Oil Spill. As documented by leaders in the oil and gas industry, including legal luminaries in admiralty and maritime laws, some of these short comings include: 1) the insufficient funding of the Oil Spill Liability Trust fund; 2) Uncertainties in the preservation of rights under state and admiralty law; 3) statutory limits on liabilities of responsible parties, including arrangements of compensation scheme; and 5) penalty provision applicable when responsible parties fail to pay claims in a timely fashion. In light of these shortcomings, the 113th Congress has the great opportunities to amend the Oil Pollution Acts or statutes associated, to help everyone connected to the industry, do a better job in case of another industrial mishap of platform explosions that may result in the deaths of employees. 

As a first step, the Coalition from the salvage industry, spill management industry, containment industry and first responders industry, asks that 113th Congress consider the following measures to correct for the inadequacies or anomalies of the existing laws: 1) Define with specificity, the term, “responder” and the types of response actions covered by immunity under the 1970 and 1990 laws; 2) Provide a “presumption” that any response action or omission does not constitute gross negligence or knowing misconduct; 3) provide that a responder shall share derivatively in government immunity with response to a response activity; 4) provide that immunity will not apply to land-based hazardous substance spill, or if the person is grossly negligent or knowingly engaged in misconduct; 5)  provide that person(s) filing a claim against a responder must pay a court cost and attorneys fees; and 6) expand the scope of current version of responder immunity to provide immunity for personal injury or wrongful death  and immunity from civil or criminal penalties. Clarification of the misgivings or misunderstandings of these terms, arrangements or developments, will help shed more lights on the current concerns in these areas.

While one or two of these coalition’s proposal may be debatable or subject to critical assessments, it is apparent that most of them will correct for not only the shortcomings in Federal Water Quality Improvement Act of 1970 and Oil Pollution Act of 1990, but also provisions contemplated in the House and Senate versions of H.R. 2838 bill: 1) Coast Guard and Maritime Transportation Act of 2011 (November 15, 2011) and 2) Coast Guard and Maritime Transportation Act (September 22, 2012). Notwithstanding, the Oil and Gas industry embraces most aspects of H.R 2838, House’s and Senate’s version; however, the industry leaders wonder why the issues of employee safety, personnel training, and torts claims are not addressed exhaustively to clear out the misconceptions that currently beclouds all the efforts expended by first responders after a spill similar to what we had in the Gulf of Mexico. These are essential items and the current movement on the work on H.R. 2383, brings to life the huge concerns in the industry regarding congressional efforts to fashion out a more responsive legislation in light of recent experiences.

We trust however, that congressional lawmakers in the 113th Congress have the necessary tools and wisdom to address the concerns of many in the industry regarding tort claims, near misses accidental records, employees’ safety training and infrastructural arrangement to manage huge environmental disaster without fear of tort claims that may hinder honest efforts by first responders.

Tuesday, January 1, 2013

Fiscal Cliff Deal Passed By Congress in a Vote Spread of 257-167!

Happy New Year: Welcome to 2013!

To create a Profile of Congressional Obstructionists in 112th Congress:

1) Click the 'Fiscal Cliff' Button and then click Obstructionists file to display the names of anti-middle class lawmakers in the dialog box;

2) Click 'Tea-baggers or tea-baggers' sympathizers in the template area to display RETROGRESSIVE from the existing dialog box;

3) Locate and select a list of potential 'has been' lawmakers in the 2014 mid-term elections and schedule to print from existing dialog box;

4) Click create Obstructionists and retrogressive file and top on the list is the House Majority Leader Eric Cantor;

For congressional reformers that deserve the nation's thank you for nipping the fiscal cliff crisis, follow steps 1 to 4, and replace the term Congressional Obstructionists with Congressional Progressives and Futurists.

5) Click create progressives and futurists and on top of the list, is Joe Biden, not a congressional member, but the Vice President of the United States. Print Thank You Joe, for cleaning up the mess in congress. We need Joe Biden in the Office past four years; he may have to go back once again to congress to school the unruly boys on how to make laws, using the compromise tag!