[Congressional Record Volume 162, Number 118 (Thursday, July 21, 2016)]
[Extensions of Remarks]
[Pages E1159-E1160]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
DEEPWATER HORIZON SETTLEMENT
______
HON. JOHN FLEMING
of louisiana
in the house of representatives
Thursday, July 21, 2016
Mr. FLEMING. Mr. Speaker, I rise to correct the record regarding
statements made by Congresswoman McCollum (D-MN-4) during debate on the
Smith (MO) Amendment Number 85 to H.R. 5538, the Department of
Interior, Environment, and Related Agencies Appropriations Act, 2017.
Congresswoman McCollum claimed during amendment debate that the Smith
Amendment would block $500 million from the Deepwater Horizon
settlement from being paid to Gulf States by the Office of Natural
Resource Disaster Assessment at the Department of Interior.
Despite Congresswoman McCollum's claims, the Smith Amendment does not
have any legal effect on the Deepwater Horizon settlement.
The Smith Amendment prevents the Department of Interior from using
funds to carry out this sentence of the Comprehensive Environmental
Response, Compensation, and Liability Act (CERCLA): ``Sums recovered by
the United States Government as trustee under this subsection shall be
retained by the trustee, without further appropriation, for use only to
restore, replace, or acquire the equivalent of such natural
resources.''
However, the Deepwater Horizon spill fell entirely under the Oil
Pollution Act, and was not prosecuted under CERCLA. No fines were
assessed under CERCLA.
In addition, CERCLA contains an explicit exemption for petroleum
products in Section 101(14). In fact, an environmental group that filed
a lawsuit against BP under CERCLA and EPCRA lost their suit because of
the petroleum exemptions in those laws.
Therefore, a legal analysis by the American Law Division of the
Congressional Research Service confirmed that the Smith (MO) Amendment
Number 85 would have had no legal effect on the NRDA process, the
RESTORE Act funds, or any other payment from the Deepwater Horizon
Settlement. The RESTORE Act already appropriates money from the
settlement to the states.
To quote from the CRS memorandum: ``This memorandum finds that the
Amendment, if approved and then made part of enacted legislation, would
not have created a legal barrier to DOI's distribution of funds from
the Deepwater Horizon settlement with the federal government and the
Gulf States to address natural resources damages related to the
incident.''
Instead, the Smith Amendment would have prevented executive branch
agencies who collect fines under CERCLA from buying more federal land
that is unrelated to the CERCLA violation without any Congressional
oversight. The Amendment is designed to stop executive branch abuses
and overreach, which has been a common theme for the Obama
Administration.
[[Page E1160]]
Congressional Research Service,
Washington, DC, July 19, 2016.
Memorandum
From: Adam Vann, Legislative Attorney, 7-6978
Subject: Applicability of Failed Amend. 85 of H.R. 5538 to
the Authority of the Department of the Interior to
Distribute Deepwater Horizon Settlement Funds to Gulf
States
You have asked us to analyze the impact that a proposed
Amendment to H.R. 5538, the Department of the Interior,
Environment, and Related Agencies Appropriations Act, 2017,
would have on the legal authority of the Department of the
Interior (DOI) to allocate funds to mitigate natural
resources damages caused by the 2010 Deepwater Horizon
incident. The proposed Amendment, listed as Amendment 85 in a
Rules Committee Report on H.R. 5538, was not adopted. The
Amendment would have provided that funds made available by
H.R. 5538 could not be used to carry out a specific provision
in Section 107(f)(1) of the Comprehensive Environmental
Response, Compensation and Liability Act (CERCLA). This
memorandum finds that the Amendment, if approved and then
made part of enacted legislation, would not have created a
legal barrier to DOI's distribution of funds from the
Deepwater Horizon settlement with the federal government and
the Gulf States to address natural resources damages related
to the incident. However, CRS is not opining on whether the
Amendment would have created practical administrative
difficulties that might have impeded allocation of those
funds.
Background
The proposed Amendment 85 to H.R. 5538 read as follows:
None of the funds made available by this Act may be used to
carry out the third sentence of section 107(f)(1) of the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9607(f)(1)) (relating to use
of recovered sums by the United States Government without
further appropriation).
Section 107(f)(1) of CERCLA addresses liability for injury
to, destruction of, or loss of natural resources caused by a
release or threatened release of hazardous substances, and
designates the United States government as a trustee
empowered to receive compensation for such damages. The third
sentence of Section 107(f)(1) provides that ``[s]ums
recovered by the United States Government as trustee under
this subsection shall be retained by the trustee, without
further appropriation, for use only to restore, replace, or
acquire the equivalent of such natural resources.'' This
grant of federal authority to act as trustee forms the legal
foundation for DOI's Natural Resource Damage Assessment and
Restoration program, which allows the agency to distribute
funds to assess natural resources damages, and restore,
replace or acquire the equivalent of the damaged resources.
A similar authority to collect and disburse funds to
address natural resource damages is found at Section 1006 of
the Oil Pollution Act (OPA). That section authorizes the
United States government, as designated trustee, to ``develop
and implement a plan for the restoration, rehabilitation,
replacement, or acquisition of the equivalent'' of natural
resources damages resulting from an oil spill. Section
1006(f) authorizes maintenance of a fund ``for use only to
reimburse or pay costs incurred by the trustee . . . with
respect to the damaged natural resources.'' After the
Deepwater Horizon oil spill in the Gulf of Mexico in 2010,
the United States and the affected Gulf States entered into a
Consent Decree with BP Exploration and Production, Inc. (BP)
outlining BP's liability to the United States for the
incident under federal statute, including liability for
natural resources damages under the relevant provisions of
OPA. Pursuant to the Consent Decree, DOI was tasked with
managing the designated funds for the ``restoration,
rehabilitation, replacement, or acquisition of the equivalent
of injured or lost Natural Resources or natural resource
services as provided in one or more restoration plans.''
Discussion
Staff at DOI previously stated that the passage and
enactment of Amendment 85 as part of H.R. 5538 would have
constrained DOI's ability to distribute funds for natural
resources damages related to the Deepwater Horizon incident,
as it is authorized to do by the Consent Decree. Upon review
of the text of the Amendment as well as the relevant language
in CERCLA, OPA and the Consent Decree, CRS cannot find any
legal limitation in the Amendment that would have barred DOI
from expenditure of funds for ``restoration, rehabilitation,
replacement, or acquisition of the equivalent of injured or
lost Natural Resources'' in the Gulf of Mexico related to the
Deepwater Horizon incident pursuant to DOI's authority under
OPA and the Consent Decree. However, CRS cannot opine as to
whether administrative issues (e.g., commingling of CERCLA
and OPA funds in one account) may have presented barriers to
distribution of such funds if DOI had been barred from
distributing CERCLA natural resource damage funds by the
Amendment, as representatives of DOI have reportedly claimed.
Analysis of accounting and related administrative concerns at
DOI is outside the scope of this memorandum.