The opa establishes liability for discharges of oil

The OPA establishes liability for discharges of oil from vessels, onshore facilities, and offshore facilities into or upon the navigable waters of the
United States. Under the OPA, the “responsible party” for the discharging vessel or facility is liable for removal and response costs as well as for damages,
including recovery costs to contain and remove discharged oil and damages for injury to natural resources and real or personal property, lost revenues, lost
profits, and lost earning capacity. The cap on liability under the OPA is the full cost of removal of the discharged oil plus up to
$75 million for damages,
except that the
$75 million
cap does not apply in the event the damage was proximately caused by gross negligence or the violation of certain federal safety,
construction or operating standards. The OPA defines the set of responsible parties differently depending on whether the source of the discharge is a vessel or
an offshore facility. Liability for vessels is imposed on owners and operators; liability for offshore facilities is imposed on the holder of the permit or lessee of
the area in which the facility is located.
The MBTA and the ESA provide penalties for injury and death to wildlife and bird species. The MBTA provides that violators are strictly liable
and such violations are misdemeanor crimes subject to fines of up to
$15,000
per bird killed and imprisonment of up to six months. The ESA provides for
civil penalties for knowing violations that can range up to
$25,000
per violation and, in the case of criminal penalties, up to
$50,000
per violation.
In addition, federal law provides for a variety of fines and penalties, the most significant of which is the Alternative Fines Act. In lieu of the express
amount of the criminal fines that may be imposed under some of the statutes described above, the Alternative Fines Act provides for a fine in the amount of
twice the gross economic loss suffered by third parties, which amount, although difficult to estimate, is significant.
67

On December 15, 2010, the DOJ filed a civil action seeking damages and injunctive relief against BP Exploration, Anadarko Petroleum Corporation
and Anadarko E&P Company LP (together, Anadarko), which had an approximate 25%
interest in the Macondo well, certain subsidiaries of Transocean
Ltd., and others for violations of the CWA and the OPA. The DOJ’s complaint seeks an action declaring that the defendants are strictly liable under the CWA
as a result of harmful discharges of oil into the Gulf of Mexico and upon United States shorelines as a result of the Macondo well incident. The complaint also
seeks an action declaring that the defendants are strictly liable under the OPA for the discharge of oil that has resulted in, among other things, injury to, loss
of, loss of use of, or destruction of natural resources and resource services in and around the Gulf of Mexico and the adjoining United States shorelines and
resulting in removal costs and damages to the United States far exceeding
$75 million
. BP Exploration has been designated, and has accepted the designation,
as a responsible party for the pollution under the CWA and the OPA. Others have also been named as responsible parties, and all responsible parties may be
held jointly and severally liable for any damages under the OPA. A responsible party may make a claim for contribution against any other responsible party or