Today, the House Judiciary Committee passed an amendment authored by Congressman Ted Deutch increasing the opportunity for public disclosure of the health effects of oil spill and clean up efforts. The amendment was adopted into the Securing Protections for the Injured from Limitations on Liability (SPILL) Act, a comprehensive bill addressing several issues surrounding liability and claims for the Gulf Coast Oil Spill.
"If any agency within the federal government seeks to keep information related to the BP oil spill secret from the public, my amendment will ensure that proper oversight occurs before that decision is made and that the agreement does not come at the expense of health or safety of the American people," said Congressman Deutch. "I am pleased to have my amendment incorporated into the SPILL Act, and I hope to have this important legislation up for a full vote in the House of Representatives as soon as possible. With so many families, businesses, and communities devastated by the Deepwater Horizon spill, it is critical that Congress updates our outdated liability laws to ensure that victims have an adequate path to recourse."
On April 20, 2010, an explosion on the Deepwater Horizon oil drilling platform caused a massive oil spill in the Gulf of Mexico that is spreading throughout the Gulf Coast and perhaps beyond. Eleven of the 126 crew members were killed, and 17 were injured. To address some of the issues surrounding liability for the Gulf Coast oil spill, Mr. Conyers introduced H.R. 5503, the Securing Protections for the Injured from Limitations on Liability (SPILL) Act. The current liability regime surrounding the Gulf Coast oil disaster is exceedingly complex and outdated. In many cases, the prevailing laws were written in the mid-19th century to protect American merchant ship owners. This legislation updates the liability system to provide fairness to victims by eliminating anomalies in the law.
The Deutch amendment addresses Section 6(b) of the underlying bill, which provides an exception to Section 6 which makes certain secrecy agreements regarding the discharge of contaminants into US waters unenforceable. Under the exception, a directive for a secrecy agreement that is contained in a court order is enforceable. In addition, this exception also permits the issuing of secrecy agreements by a Government agency that has the authority to enforce the agreement in a court. If the agreement is challenged in court, the secrecy agreement is enforceable if the Government agency can demonstrate by a preponderance of the evidence that the agreement is "necessary to protect public health or safety."
The Deutch amendment would make two important changes to this exception. First, the amendment would require that a court granting the enforcement of a secrecy agreement that is needed for the public health and safety must state factual findings and conclusions of law relating to the enforcement of the agreement on the record. Second, the amendment would require that in the event a Government agency is enforcing their secrecy agreement in a court, that the agency demonstrate by clear and convincing evidence that the agreement is needed to protect the public health or safety.
This amendment would encourage a court that issues a secrecy agreement restricting public access to this information to become well informed - possibly through a hearing, witness testimony, or the submission of other evidence -- on the issue before taking steps to restrict public access to information on contaminants that have been discharged in US waters. Moreover, requiring courts to enter their factual and legal reasoning into the record would ensure that the public has a basis to appeal the decision, should they believe it to be necessary. The amendment would also place a reasonable burden on a Government agency that seeks to keep information secret on the discharge of contaminates into our waters. If a Government agency wants to keep information that affects the public health or safety secret and out of public dissemination, then they should have to satisfy that burden of proof. Keeping information secret from the public, especially if the information relates to the public health or safety, should only be a last resort.