Last year's Gulf oil spill is still raising a lot of questions. One such question is especially important to those of us who are concerned with the victims of crime. Since visiting New Orleans for the 2010 conference of the National Center for Victims of Crime last year, I've been asking myself what is our nation's responsibility to the oil spill victims, particularly if BP and its partners are prosecuted for environmental crimes.
A Washington Post editorial last November posed a related question: “Are the Victims of the Gulf Oil Spill Getting What They Deserve?” Answering these questions requires knowing who the victims are. The oil rig workers and their families are clearly victims, but what about everyone else in the Gulf? Anyone whose property, health or livelihood was damaged by the oil spill (even if the damage takes years to fully emerge) is a victim. Those who lose income as an “indirect” result of the spill (such as laid-off public employees in financially stressed Gulf jurisdictions) are also victims. So are those suffering from other spill-related damage—such as Post Traumatic Stress Disorder (PTSD), alcoholism, depression and increased domestic violence in some Gulf communities.
How will our nation compensate these victims? The $20 billion BP compensation fund, administered by Kenneth Feinberg, is a start. As the cost estimates ($40 billion recently) for the spill continue to rise, Mr. Feinberg is sorting through the 450,000 claims for emergency assistance to tide victims over until they can receive a final settlement. According to the website FAQ for the Gulf Coast Claims Facility, only those directly affected by the spill are eligible, and damage “must not be too remote in time or place from the spill.” Once victims have made a final claim and receive payment, they must give up their right to sue BP or its partners, no matter what the ultimate impact of the spill on their lives and property.
Our criminal and civil justice systems can provide some measure of justice to victims.
The U.S. Department of Justice must investigate whether crimes under the Clean Water Act, the Oil Pollution Act, the Migratory Bird Treaty Act, and other laws were committed—and if so, how to prosecute. But these efforts will take time. And even successful prosecutions will produce no financial relief for the Gulf region, because under current law, no funds (such as fines or restitution) awarded as a result of prosecution can go directly to the victims. Negligence claims brought by individuals and groups (an option only for those who do not receive final compensation fund payments) might help meet some victims' medical and financial needs. Yet these civil actions, which are often unresolved for many years, neither cover all damages nor always end favorably for victims.
Clearly, the compensation fund is not enough, and our justice systems are not equipped to address the massive trauma, financial strain, crime, and long-term damage caused by the spill.
To respond to such disasters, our nation needs a better set of remedies.
We need better victim support and compensation systems for direct and “indirect” victims, and laws that allow restitution for victims of environmental crime. We need more comprehensive, coordinated responses to such catastrophes, and we must take steps to learn from this disaster how to prevent the next one. Until we make this kind of progress, the victims of the Gulf oil spill (and future disasters) will never get “what they deserve.”
Mai Fernandez is Executive Director of the National Center for Victims of Crime.