Craig H. Allen, Proving Natural Resource Damage Under OPA 90: Out with the Rebuttable Presumption, in with APA-Style Judicial Review?, 85 Tulane L. Rev. 1039 (2011), https://digitalcommons.law.uw.edu/faculty-articles/83
Tulane Law Review
Administrative Procedures Act, Deepwater Horizon, Oil Pollution Act of 1990, oil spills
In the aftermath of the Deepwater Honrzon oil spill of 2010, Prsident Obama uged Congess to amend the natural resource damage provisions of the Oil Pollution Act of 1990 to replace the rebuttable presumption of validity the law presently accords to damage assessments by the designated natural resource trustees that were conducted in accordance with regulations promulgated by the National Oceanic and Atmosphenc Administration with the standard of judicial review prescrbed by the Administrative Procedures Act (APA). Although the House of Representatives passed such an amendment in 2010, the Senate failed to act on the amendment before the 111th congressional term ended. Nevertheless, White House and congresssional support in the wake of the 2011 spill suggests that the proposal is likely to resurface in the near future. Accordingly, this Article examines the meaning and effect of the proposed substitution of APA review for the existing rebuttable presumption, potential difficulties in implementing the new standard and whether the amendment might unconstitutionally deprive spillers of the right to a jury tial.