Parens Patriae Litigation to Redress Societal Damages from the BP Oil Spill: The Latest Stage in the Evolution of Crimtorts

Abstract

ABSTRACT * The BP oil spill has led to some of the most complex legal dilemmas in Anglo-American history. This Article explores four mechanisms that claimants are using to seek compensation for damages caused by this unprecedented environmental disaster: (1) Torts; (2) Class Actions; (3) the Gulf Coast Claims Facility; and (4) Environmental Patens Patriae Actions. We argue that the government-initiated parens patriae actions are necessary to supplement, but not to supplant, the other three mechanisms in order to vindicate the larger societal injury. The patens patriae litigation may enable the Gulf States to recoup larger societal losses to their habitat, ecosystems, tax revenues, and tourism. This mechanism can potentially resolve the problem of aggregating valid claims by plaintiffs who cannot be certified as classes or who do not qualify under the Gulf Coast Claims Tribunal Guidelines. We classify environmental patens patriae as public crimtorts because government attorneys deploy private tort law to redress societal injuries. By contrast, in private crimtorts, trial lawyers receive punitive damages as a bounty for uncovering and prosecuting dangerous conditions and practices. Both public and private crimtorts require intermediate procedural protections to ensure that corporate defendants are treated fairly. Courts or legislatures will need to determine which intermediate protections best balance defendants' rights versus society's interests. I. INTRODUCTION: THE BP OIL CATASTROPHE II. PART I: CIVIL JUSTICE ALTERNATIVES FOR COMPENSATING THE BP OIL SPILL VICTIMS A. One-on-One Torts 1. The Case for Individualized Environmental Justice 2. Difficulties in Proving Causation in Environmental Torts 3. David v. Goliath Imbalance in Legal Resources a. The BP Corporate Family b. The Transocean Corporate Family c. The Halliburton Corporate Family d. The Andarko Corporate Family e. The Moex Offshore Corporate Family f. Cameron International Corporation g. Miscellaneous Additional Defendants 4. Environmental Torts Will Overwhelm the Civil Justice System B. The Gulf Coast Claims Facility (GCCF) 1. The Formation of the Gulf Coast Claims Facility 2. Advantages of the Gulf Coast Claims Facility 3. Concerns About the Gulf Coast Claims Facility a. Kenneth Feinberg: The $20 Billion Dollar Man b. The GCCF's Legitimacy and Transparency Limitations c. Controversial GCCF Proximate Cause Delimiters d. Exclusion of Noneconomic Damages as Tort Reform in Disguise e. The Abolition of the Collateral Source Rule f. The GCCF Does Not Compensate Societal Damages C. Class Actions Against Oil Industry Defendants 1. Advantages of Class Actions III. PART II: THE RESURRECTION OF PARENS PATRIAE FOR COLLECTIVE INJURIES A. The Gulf States' Parens Patriae Environmental Actions B. History of Parens Patriae 1. The Equitable Roots of Parens Patriae 2. Parens Patriae Exported to America 3. Injunctive Relief in Early Parens Patriae Environmental Cases C. The Modern Expansion of Parens Patriae D. The Metamorphosis of Public Nuisance 1. Public Nuisance in Tobacco Parens Patriae Actions 2. Public Nuisance in Environmental Parens Patriae Actions a. Show Me the Money: Parens Patriae Actions b. The Rise of Public Crimtorts 3. Alabama's Pioneering Environmental Parens Patriae Action 4. Louisiana's Declaratory Judgment Action 5. …