We Can Do Better on an Oil Spill Liability Cap Compromise

By / 3.3.2011

Last year’s Deepwater Horizon oil spill revealed not just technological problems, but policy gaps as well. Among the most notable of these gaps is the federal limit on liability for oil spills, set at $75 million for offshore facilities. This is three or four orders of magnitude smaller than the damages associated with a major offshore spill like Deepwater Horizon, whose damages are estimated in the tens of billions. Firms that cause more damage than the limit aren’t liable, at least not under federal law. It is only BP’s decision to waive this limit that has kept it from being a much larger problem.

But we may not be so lucky next time, and the spill has greatly increased pressure to increase or eliminate the cap. I and my colleagues at Resources for the Future have written on this and, most notably, the President’s Commission on the spill recommended significantly raising liability caps. Congress could not agree on a measure to do so last year, however, and urgency ebbed in the election season. The problem still exists, however, and discussions in Congress have begun again. The latest development is a potential compromise between Democratic Sens. Mark Begich and Mary Landrieu. But unfortunately, this compromise is likely to make the situation worse, not better.

The Begich/Landrieu compromise has two elements: first, it raises the liability cap to $250 million. This is relatively meaningless given the size of large-spill damages, but let’s set that obvious objection aside for now. The deeper problems with the compromise exist even if the cap number is much higher. The second element is a kind of insurance pool, funded by contributions from all drilling firms, that would cover spill damages above the cap level.

This insurance pool creates problems that undermine any benefit from an increased cap. The first is moral hazard – liability works because, by forcing wrongdoers to pay for damages they cause, it creates incentives to avoid dangerous or negligent activity. But when liability is pooled, these incentives are blunted. Under the compromise, if a firm spilled oil that caused damage over $250 million, it would not pay much for these “excess” damages – but its competitors would. In a sense, the pool lets firms outsource the costs of their dangerous activity, and therefore erases much of the incentive to avoid it. This “moral hazard” is a recognized problem with insurance and particularly pooled insurance. There are ways to deal with it, but it is impossible to resolve it entirely.

But this isn’t the only way the compromise would kill firms’ incentive to operate safely. It would also undercut spill victims’ only real remedy under current law. Critics of the federal spill liability cap often forget that it isn’t the only game in town – spill victims can sue under state law. And with the big exception of Louisiana, state law has no liability caps at all. This means that victims can recover damages even beyond the federal cap levels. Now federal caps do still matter – for procedural reasons and due to protections offered under federal law, it is a better route for most victims. And of course Louisianans are out of luck under either law.

But if there is an insurance pool, victims won’t pursue claims under state law. No good lawyer would advise them to do so when they could just recover from the insurance pool. State liability laws would become largely meaningless, and any incentives they give firms to operate safely would fade. This makes the moral hazard problem even worse. The only remaining reasons for firms to prevent major spills would be avoiding bad press and cleanup costs (which aren’t covered under the caps). And that’s not likely to be enough to increase safety investments, as the recent spill has shown is necessary.

The spill illustrated something we probably should have recognized earlier – that our liability policy for oil spills is totally inadequate. The liability cap was too low when it was passed, and it is far too low now. There’s a very strong case that we shouldn’t have one at all.

But changes to the liability cap won’t happen without compromise. It’s a good thing that legislators continue to discuss the issue and are making such compromises (though getting Republicans on board will be necessary eventually). But whatever political benefits the Landrieu/Begich compromise has, it’s bad policy. It will make the problems with current liability policy worse, not better. The senators risk expending political capital only to make the Gulf less safe. Oil companies and the legislators that champion them may still oppose this compromise, but there will be a certain amount of Br’er Rabbit and the briar patch in their cries. Even if politics means an ideal spill liability policy is impossible, we can do better than this.

The views expressed in this piece do not necessarily reflect those of the Progressive Policy Institute.