New York's Oil Spill Act, Article 12 of the New York Navigation Law, assigns strict liability to any person who has discharged petroleum, for all cleanup and removal costs associated with the cleanup of the petroleum, as well as all direct and indirect damages, such as attorney's fees. N.Y. Navigation Law (1). A discharge of petroleum, sufficient to incur liability under the Oil Spill Act, includes any intentional or unintentional action or omission resulting in a release of petroleum into water, or into soil from which the petroleum could flow or drain into water. NL 172(8). New York generally interprets any and all spills of petroleum onto soil as falling within the jurisdiction of the Oil Spill Act, without any demonstration that the petroleum will actually find its way to the waters nominally protected by the Act.
As in other areas of environmental policy, New York State is a leader in grappling with global climate change. Since 2009, the New York State Department of Environmental Conservation has had a policy in place that requires it to consider energy use and greenhouse gas emissions when it prepares or reviews an Environmental Impact Statement under the State Environmental Quality Review Act.
Could fracking in North Dakota's Bakken shale formation have a direct impact on New York State? Yes, but the impact isn't limited to prices at the gas pump or home energy heating bills. Instead, the fracking operations are leading to a surge in freight trains hauling crude oil along the state's rail lines to a terminal at the port of Albany, New York. Shale formations such as the Bakken produce crude oil along with natural gas during fracking operations, and some claim that Bakken crude may "more dangerous to ship by rail than crude from other areas."
Here's a pop quiz: after an eleven week trial in federal court, a jury hands down a verdict of nearly $105 million against ExxonMobil for contaminating New York City's drinking water. On appeal, the verdict is upheld. What environmental law enabled the jury to find, and the appellate court to affirm, such a large verdict? The Superfund Law? The Clean Water Act? The Resource Conservation and Recovery Act?
1. Any person who has discharged petroleum shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained, as defined in this section. In addition to cleanup and removal costs and damages, any such person who is notified of such release and who did not undertake relocation of persons residing in the area of the discharge in accordance with paragraph (c) of subdivision seven of section one hundred seventy-six of this article, shall be liable to the fund for an amount equal to two times the actual and necessary expense incurred by the fund for such relocation pursuant to section one hundred seventy-seven-a of this article. 2. The fund shall be strictly liable, without regard to fault, for all cleanup and removal costs and all direct and indirect damages, no matter by whom sustained, including, but not limited to:
3. (a) The owner or operator of a major facility or vessel which has discharged petroleum shall be strictly liable, without regard to fault, subject to the defenses enumerated in subdivision four of this section, for all cleanup and removal costs and all direct and indirect damages paid by the fund. However, the cleanup and removal costs and direct and indirect damages which may be recovered by the fund with respect to each incident shall not exceed: (i) for a tank vessel, the greater of:
(1) one thousand two hundred dollars per gross ton; or
(2) (A) in the case of a vessel greater than three thousand gross tons, ten million dollars; or (B) in the case of a vessel or three thousand gross tons or less, two million dollars;
1. Any person discharging petroleum in the manner prohibited by section one hundred seventy-three of this article shall immediately undertake to contain such discharge. Notwithstanding the above requirement, the department may undertake the removal of such discharge and may retain agents and contractors who shall operate under the direction of such department for such purposes. The commissioner shall develop a system of immediate response type contracts with appropriate agents and contractors. Such contracts shall be subject to the approval of the state comptroller in accordance with section one hundred twelve of the state finance law, however, such approval shall not obligate to any particular contract any specific amount of monies from the fund but shall obligate from the fund on an individual basis as such contracts are utilized the actual amount required to effectuate any contract or any portion thereof. Any necessary approvals of availability of funds for a particular project in accordance with any provision of the state finance law shall be undertaken as soon as practical after clean up and removal procedures are undertaken, or such procedures are ordered by the commissioner.2. (a) Upon the occurrence of a discharge of petroleum, the department shall respond promptly and proceed to cleanup and remove the discharge in accordance with environmental priorities or may, at its discretion, direct the discharger to promptly cleanup and remove the discharge. The department shall be responsible for cleanup and removal or as the case may be, for retaining agents and contractors who shall operate under the direction of that department for such purposes. Implementation of cleanup and removal procedures after each discharge shall be conducted in accordance with environmental priorities and procedures established by the department.